PA Supreme Court Issues Political, Non-Judicial, Decision Regarding The Second Amendment

Yesterday, the Pennsylvania Supreme Court issued a clearly political, non-judicial, 64 page decision, written by Justice Dougherty and joined by Chief Justice Todd and Justice Wecht, in Barris v. Stroud Township, holding that the Second Amendment does not protect the discharge of firearms on one’s own shooting range. In fact, reflecting the overall disdain the Court has for the U.S. Supreme Court’s holding in Bruen v. New York State Rifle Pistol Association and the overtly political nature of the decision, the Court declared that “[o]ur Nation is gripped by a level of deadly gun violence our founders never could have conceived, and, respectfully, some of the [U.S. Supreme} Court’s actions in recent years have done little to quell the legitimate fears of “the people,” as though the courts have the power to simply eviscerate or otherwise redefine constitutional rights, contrary to the intent of those who enacted them. With such a mindset on our highest state court, why even have an amendment process? We should just leave it up to the Kings and Queens of the judiciary to redefine our rights, as the wind blows. But such is what we’ve come to expect from our judiciary at all levels, even though, when campaigning under a political party platform, they espouse that they will be independent and non-political…But I digress

Perhaps reflecting the political nature even more, although the Court mentioned the Third Circuit Court of Appeals decision in Drummond v. Robinson Twp., where the court held that several township zoning ordinances that restricted where citizens could purchase and practice with firearms was violative of the Second Amendment, the Court nevertheless found, directly contrary to Drummond, that the Second Amendment does not protect the discharge of firearms on a shooting range. And then, there were other comments made by the Court including

Although it’s a bit like shooting at a moving target because the number seems to grow each day, already, well over “two dozen . . . rulings [have] concluded that Bruen’s test invalidates state or federal laws under the Second Amendment.”

As though, God forbid, our Constitutional Right invalidate unconstitutional laws… And then there’s the Court’s reference to the Bruen test as a “harsh ‘history-and-tradition’ test”, because the Court are required to interpret it as the People, around the time of enactment, understood it. And if you need anything to emphasize even more the political nature of the decision, the PA Supreme Court has consistently, and just as recent as a couple weeks ago in Allegheny Reprod. Health Ctr. v. Pennsylvania Dep’t of Human Servs., 26 MAP 2021 (Pa. Jan. 29, 2024), agreed that constitutional rights “must be interpreted in its popular sense, as understood by the people when they voted on its adoption.” League of Women Voters v. Commonwealth, 178 A.3d 737, 802 (Pa. 2018).

And then, there is the swipe the Court takes at the amicus brief that Chief Counsel Joshua Prince submitted on behalf of Allegheny County Sportsmen’s League, the Beaver County Sportsmen’s Conservation League, Firearms Owners Against Crime – Institute for Legal, Legislative, and Educational Action, Unified Sportsmen of PA, and USCCA Legal Defense Foundation, declaring that it “it improperly invites us to consider an array of issues that are not before us in this appeal,” even though, as addressed in the amicus brief, the PA Supreme Court’s own legion of precedent holds that it may affirm, including appellate courts, on any grounds. See, Friends of Pennsylvania Leadership Charter Sch. v. Chester Cnty. Bd. of Assessment Appeals, 627 Pa. 446, 461 (2014); Mazer v. Williams Brothers Co., 461 Pa. 587, 594 n.6 (1975); Bearoff v. Bearoff Bros., Inc., 458 Pa. 494 (1974); Gilbert v. Korvette’s, Inc., 457 Pa. 602, 604 n.5 (1974); Sherwood v. Elgart, 383 Pa. 110 (1955). Apparently, and quite telling, the Court did not want to address that Stroud Township’s ordinance is violative of our state firearm preemption statute, i.e. 18 Pa.C.S 6120, Article I, Section 26 of the Pennsylvania Constitution, and the vagueness doctrine and rule of lenity. Anyone care to take a guess why? Apparently, justice no longer matters to our Court. Or, as a close friend says, we no longer have justice system, we just have “just is system.”

Of course, as the Court is quick to point out at several points in the lengthy decision, Barris’ counsel was not the most adept, including stating that his arguments “are puzzling,” as he “argues both Heller and Bruen ‘are self-limiting in scope’ insofar as ‘[n]either speak to Second Amendment concerns considered subsidiary or corollary in nature’” and his concession that “training [inclusive of shooting at a range] is not covered by the Second Amendment’s plain text.” The Court also declared that if the the Township’s and Office of Attorney General’s contention that a challenger bears the burden at the first step, “Barris’s claim would likely fail right off the bat because he no longer argues his conduct implicates his right “to keep and bear arms” and, moreover, he freely admits “[n]o Second Amendment ‘text’ references firearm training.”

As some of you may be wondering, what about the other three justices who were on the Court at the time this case was argued. Unfortunately, as now-Justice Brobson heard the case when it was before the Commonwealth Court, he recused himself. Justice Donohue issued a concurring and dissenting opinion, where she concurred with the outcome, but dissented from the Court’s application of Bruen, as she felt Barris’ conduct of shooting on his own range was not protected by the plain text of the Second Amendment. And then there was the eloquent dissenting opinion by Justice Mundy (which I believe Justice Brobson would have joined, if he hadn’t recused himself).

Where does this leave us? It is time that We The People take back our judiciary and let it be known that will no longer stand for these political, non-judicial, decisions. In that vein, Justices Dougherty, Wecht, and Donohue will be up for a retention vote in November 2025, where We The People can vote them out of office. It is time that we start telling all of our family, friends and neighbors about the retention vote next year. It must become a dinner-table topic, so that everyone know what all is on the line, as our Republic cannot survive with politically activist judges on our courts.

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.

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