CINCINNATI (CN) — An appeals court panel will decide whether a Michigan township can restrict the operation of an outdoor shooting range under its zoning laws following arguments on Thursday over the application of the Second Amendment to firearm training.
Oakland Tactical Supply LLC was denied a zoning permit by Howell Township, whose zoning laws forbid the operation of any "open air uses, shooting ranges, or rifle ranges" on land zoned as agricultural residential.
The gun dealer requested the entirety of the 21-square mile district on which its 352-acre parcel sits be re-zoned to allow for outdoor uses and filed a federal lawsuit when the township refused.
U.S. District Judge Bernard Freidman, a Ronald Reagan appointee, made short work of the complaint in an 8-page dismissal opinion in September 2020 and cited Oakland Tactical's complete lack of precedent in support of its claim the Second Amendment required rezoning of the land.
Oakland Tactical appealed to the Sixth Circuit and a panel of judges remanded the case in the wake of the U.S. Supreme Court's decision in New York State Rifle and Pistol Association v. Bruen.
In Bruen, a divided Supreme Court declared a New York law restricting concealed-carry permits unconstitutional, but on remand, Friedman found the case inapplicable to Oakland Tactical's Second Amendment challenge and dismissed the lawsuit for a second time.
"Even assuming that the Second Amendment offers ancillary or corollary protection for some forms of training," he said in his opinion, "there is no way to read into the amendment's 'plain text' a right to use and construct a 1,000-yard shooting range."
Attorney Pete Patterson of the Washington firm Cooper and Kirk argued Thursday on behalf Oakland Tactical and five of its customers, and was asked at the outset by U.S. Circuit Judge Raymond Kethledge to spell out his clients' claims.
"We are not asserting a right to build a range," Patterson told the panel, "we're asserting a right to train."
The attorney clarified Oakland Tactical and the individual plaintiffs all seek injunctive relief related to the township's zoning ordinance, while the shooting range also seeks damages.
Kethledge, a George W. Bush appointee, continued to question Patterson and asked whether Oakland Tactical filed suit on its own behalf or under third-party standing on behalf of its customers.
"What Oakland wants to do here," Kethledge said, "is open and operate a 1,000-foot outdoor gun range."
"The reason Oakland cannot engage in that," Patterson responded, "is there is an unconstitutional law that bars them from engaging in that activity, and they are harmed by that unconstitutional law."
"The conduct at issue in this case," Kethledge said, "defining that [conduct] is extraordinarily and exceptionally important. For Oakland, it does seem to me the conduct at issue is constructing and operating this 1,000-foot range. And it is another step removed from the plain text of the Second Amendment."
Kethledge asked about the necessity of a commercial gun range in an agriculturally-zoned area when target shooting on someone's private property would be easier.
"Even if there are some training opportunities available on private land, our plaintiffs have said they don't have anywhere to train within Howell Township ... and there is not this type of training available," Patterson said.
The attorney emphasized nothing in the plain text of the Second Amendment allows the township to draw limits on the type of training protected by the constitution.
Kethledge mentioned one of his clerks served in the Marines and trained at 300 yards with his rifle, while the Army generally trains at 100 yards, and asked why 1,000-yard training is necessary for the average gun owner.
Patterson mentioned the U.S. civilian marksmanship program conducts shooting contests at 1,000 yards and cited historical examples of weapons being fired at around 800 yards during the Revolutionary War.
"If it is a commonly used firearm that is protected [by the Second Amendment]," he said, "then a concomitant of that is the right to train with that commonly used firearm."
Attorney Chris Patterson of the Okemos, Michigan firm Fahey, Schultz, Burzych and Rhodes PLC argued on behalf of Howell Township and pointed out the zoning scheme does not limit an individual's right to train.
"The zoning ordinance is not prohibiting individual activity or access for training," he told the panel. "Hunting is not regulated in the township under the zoning ordinance."
Patterson latched onto Kethledge's earlier statements about the conduct at issue in the case and emphasized the plaintiffs based their lawsuit solely on the operation of a long-distance shooting range, not a general right to train.
"It's been framed by appellants before this court prior to remand that it really is about a long-distance, outdoor shooting range," he said. "And that proposed course of conduct is particularly fatal to them because it is not a closely related act to keeping and possessing a firearm."
"Are you suggesting all ranges could be prohibited?" asked Senior U.S. Circuit Judge Helene White, another Bush appointee.
The township's attorney pointed out such conduct would be supported by the Supreme Court's precedents in District of Columbia v. Heller and Bruen, but was quick to distinguish the present case.
"It bears emphasizing that in this case, those are not the circumstances that are being presented," Patterson said. "What is being asked for is a preferred location or a convenient location with a specific method.
"Their scope of conduct falls outside of not only the plain text, but obviously falls outside of the 'closely related' to an act of the individual to exercise," he concluded.
Senior U.S. Circuit Judge R. Guy Cole Jr., an appointee of Bill Clinton, rounded out the panel.
No timetable has been set for the court's decision.Follow @@kkoeninger44
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