Monumental 2nd Amendment Decision Regarding Target Ranges on Private Property by Judge Brobson, Candidate for Justice of the PA Supreme Court

Yesterday, in a decision of first impression here in Pennsylvania, Commonwealth Court President Judge Kevin Brobson – also a candidate for Justice of the Pennsylvania Supreme Court – joined by Judge Mary Hannah Leavitt, issued a decision in Barris v. Stroud Township holding that pursuant to the Second Amendment to the U.S. Constitution, Stroud Township’s regulating of Barris’ shooting range was unconstitutional, because, under intermediate scrutiny, regulation “burden[ed] more conduct than is reasonably necessary.”

In adopting the two-step analysis for Second Amendment challenges adopted by the Third and Seventh Circuits, Judge Brobson first addressed whether “the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” In citing to the Ezell decision, Judge – and hopefully in the near future, Justice – Brobson declared that “the right to maintain proficiency in firearm use [is] an important corollary to the meaningful exercise of the
core right to possess firearms for self-defense.” And as, Stroud Township’s “Ordinance outright prevents individuals such as Barris from target practicing on their residential property unless they live in two specific zoning districts, regardless of the characteristics of their residential property[,] [t]he scope of the Ordinance [] imposes a burden on the right to maintain proficiency in firearm use, which triggers Second Amendment scrutiny.”

The Court thus turned to the second step declaring:

As to the second step of the analysis—the level of scrutiny to be applied and the strength of the government’s justification—the burden on Barris concerns his ancillary right under the Second Amendment to maintain proficiency in his firearm use. Notably, the Ordinance does not concern a core individual right under the Second Amendment to keep and bear arms and allow lawabiding citizens to use arms in defense of hearth and home. Rather, the Ordinance burdens his ability to target practice on his property to maintain that proficiency. Thus, we will apply an intermediate scrutiny standard requiring the Township to assert a significant, substantial, or important interest for the Ordinance, and there must “be a reasonable fit between the asserted interest and the challenged [ordinance], such that the [ordinance] does not burden more conduct than is reasonably necessary.”

In dismissing the Township’s arguments that its regulation was reasonable, Judge Brobson declared

The Township, in enacting the Ordinance, opted to prohibit personal target shooting throughout much of the Township by restricting the exercise of the Second Amendment right to maintain firearm proficiency to just two zoning districts—the O-1 and S-1 zoning districts—thereby establishing an outright ban on this conduct in all other zoning districts. The Township has not justified why an outright ban was necessary for the remainder of the Township in order to protect the public. Instead, the Township appears to defend its decision to outright ban target shooting of any kind in any district other than the two identified above by noting that those districts consist of 8,671.55 acres. The ability under the Township’s Zoning Ordinance to develop properties in those districts as shooting ranges does not somehow allow the Township to overcome the deficiencies in the Ordinance. We do not believe that an individual’s right under the Second Amendment to maintain proficiency in firearm use via a personal shooting range on one’s property should be contingent on owning property or residing in zoning districts O-1 and S-1.

In summary, the conduct Ordinance here fails to pass constitutional muster. The Ordinance imposes a burden on the Second Amendment right to maintain proficiency in firearm use by essentially imposing an outright ban on target shooting everywhere in the Township except two specific zoning districts. The Township did not meet its burden under the intermediate scrutiny standard to justify such an outright ban on personal shooting ranges at one’s residence, because it did not establish that the Ordinance “does not burden more conduct than is reasonably necessary.”

Surprisingly and disappointingly, Judge Leadbetter filed a dissent, declaring that she does “not believe that the Second Amendment gives one the right to have a shooting range in his backyard regardless of where he lives or the surroundings of his property.”

While I understand why Judge Brobson relied upon the two-step analysis adopted by the Third and Seventh Circuits given their precedent in analyzing Second Amendment challenges, as I have consistently argued, I believe that analysis is in direct contradiction to the U.S. Supreme Court’s decisions in Heller and McDonald. As declared in Heller,

[t]he very enumeration of the right takes out of the hands of government, even the Third Branch of Government, the power to decide on a case-by-case basis whether the right is really worth insisting upon. Therefore, wholesale infringements on Plaintiffs’ rights textually protected by the Constitution must be held unconstitutional categorically, not “subjected to a freestanding ‘interest-balancing’ approach.

As I recently wrote in our motion for summary judgment in Binderup, Suarez, and Miller vs. PSP Colonel Evanchick,

In Heller, the Supreme Court declined to analyze the ban on possessing handguns at issue under “an interest-balancing inquiry” based on the “approach . . . the Court has applied . . . in various constitutional contexts, including election-law cases, speech cases, and due process cases,” 554 U.S. at 689–90 (Breyer, J., dissenting), holding instead that the right to keep and bear arms was “elevate[d] above all other interests” the moment that the People chose to enshrine it in the Constitution’s text, id. at 635 (majority opinion). And in McDonald, the Court reaffirmed that Heller had “expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing.” 561 U.S. at 785 (plurality opinion).

The only issue I take with the Court’s decision is what I perceive to be a factual error in the decision, which declares that in the prior appeal, that the court “affirmed the trial court’s dismissal of Barris’s claims alleging violations of the Firearms Act [referencing the preemption provided for by Section 6120].” In Barris’ prior appeal, the court specifically noted that he waived his arguments in relation to preemption and three other counts, when it declared “Barris does not challenge the portions of the trial court order that dismissed Counts I through IV of the complaint.” Thus, the court could not affirm something that was not before it.

If you or someone you know has been the victim of an unlawful municipal firearm or ammunition regulation or ordinance, contact FICG today to discuss your options.


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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