Firearms; Second Amendment; Facial Challenge; As-applied Challenge

Barris v. Stroud Twp., 2017 WL 5505510 (Pa. Cmwlth. 2017) (en banc), allocatur granted June 6, 2022, appeal docket 68 MAP 2022

Jonathan Barris (Barris) appeals from the order of the Court of Common Pleas of Monroe County (trial court) that sustained the preliminary objections of Stroud Township (Township) and dismissed his six-count complaint, which challenged the legality of Stroud Township Ordinance No. 9-2011 (Ordinance). The Ordinance provides:

Section 1: Intent and Purpose.

Due to the density of the population of the Township of Stroud, it is necessary that the discharging of firearms be regulated for the protection of the public health and safety and general welfare of the residents, property owners, visitors and others within Stroud Township, and 2 that the unauthorized discharge of firearms be prohibited.

 . . . .

Section 3: Firing or discharge restricted.

It shall be unlawful to fire or discharge any firearm within the Township . . . except as provided in Section 4 Exceptions below.

Section 4: Exceptions.

Exceptions to this Ordinance are as follows, however in no case shall a firearm be discharged before dawn or after dusk and/or within 150 yards of an adjacent occupied structure, camp or farm, except as provided under paragraphs A., B., indoor facilities under D., and E. below:

A. The use of firearms is permitted when employed by any duly appointed law enforcement officer in the course of his or her official duty.

B. The use of firearms is permitted when necessary as authorized under state and/or federal laws.

C. The use of firearms is permitted when hunting . . . .

D. The discharging of firearms shall be allowed on indoor or outdoor shooting ranges pursuant to applicable provisions of the Stroud Township Zoning Ordinance, as may be amended, under the supervision of the owner or occupant of that property or his or her duly appointed representative, provided that:

1. All shooting ranges shall be constructed and operated in a safe and prudent manner. If standards, regulations and/or recommended procedures for operation are established or promulgated by any recognized body, such as the National Rifle Association or the American Trap Shooting Association, then such standards, regulations and/or procedures shall be adhered to.

2. Such range is issued zoning and occupancy permits by the township zoning officer, which permits shall specify the area or areas designated for shooting range purposes.

E. Farmers engaged in “normal agricultural operation” protecting their “agricultural commodity” from animal predators . . . . F. Members of any organization incorporated under laws of this Commonwealth engaged in target shooting upon the grounds or property belonging to or under the control of such organization or affiliated club, such as the Pennsylvania Federation of Sportsmen’s Clubs, Inc.

 . . . .

Section 7: Violations and penalties.

Any person or persons discharging a firearm in violation of any of the provisions of this Ordinance shall be subject to a fine of not more than six hundred dollars ($600.00) plus court costs, including reasonable attorney fees. If the defendant neither pays nor timely appeals the judgment, the township may enforce the judgment pursuant to the applicable rules of civil procedure. Each day’s continued violation shall constitute a separate offense. In default in the payment of any fine imposed hereunder, the defendant shall be sentenced to undergo imprisonment for a period not exceeding thirty (30) days.

Slip op. at 1-3 (footnote omitted) (emphasis in original). The relevant procedural and factual background is as follows:

[I]n his September 2015 complaint, Barris sought declaratory and injunctive relief against the Township claiming that the Ordinance, which effectively prohibits him from using a portion of his property within the Township as a private shooting range, violates his rights under the Second Amendment to the United States Constitution and Article I, Section 21 of the Constitution of Pennsylvania and is preempted by Section 6120 of the Pennsylvania Uniform Firearms Act of 1995 (Firearms Act), as amended, 18 Pa.C.S. § 6120, and Sections 1 and 2 of what is commonly referred to as the range protection statutes, Act of June 2, 1988, P.L. 452, as amended, 35 P.S. §§ 4501-4502.

In response, the Township filed its preliminary objections in the nature of a demurer . . . . The trial court sustained the Township’s preliminary objections and dismissed Barris’s complaint in its entirety. The trial court concluded that the Ordinance was not preempted under the Firearms Act because the Ordinance regulates only the ‘discharge’ of firearms within the Township, which the trial court concluded was a subject omitted from the scope of the Firearms Act. Accordingly, the trial court dismissed Counts I and II of the complaint. The trial court also concluded that the Ordinance was not preempted under Pennsylvania’s range protection statutes because those statutes only protect owners of rangers from civil actions or criminal prosecutions relating to noise, noise pollution, and nuisance. Because the Ordinance does not purport to regulate noise, noise pollution, or nuisance, the trial court concluded that it was not in conflict with the range protection statutes and dismissed Counts III and IV of the complaint.

In dismissing Barris’s state and federal constitutional claims, the trial court opined that neither the Second Amendment nor the Pennsylvania Constitution have been construed ‘to grant an individual the right to discharge a firearm whenever he or she pleases.” . . . Similarly, the trial court opined that because the Ordinance regulates the discharge of firearms for the safety of the Township’s citizens and Barris’s ‘firearms are not being taken away from him,’ the Ordinance passes muster under District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller), wherein the United States Supreme Court held that a handgun ban violated the rights conferred by the Second Amendment. . . . To the extent Barris claims that the Ordinance restricts his ability to defend himself in his home, the trial court noted that the Ordinance expressly allows discharge of firearms for self-defense, as authorized under Pennsylvania law. . . . Accordingly, the trial court dismissed Counts V and VI of the complaint.

Slip op. at 3-6 (footnotes omitted) (internal citations omitted). On appeal to the Commonwealth Court, Barris did not challenge the dismissal of Counts I through IV of the complaint. Rather, Barris argued that the trial court should have permitted him to amend his complaint, rather than dismiss it with prejudice and should have permitted amendment “to better aver facts contesting whether [the ordinance], standing alone, passes Constitutional muster.” Slip op. at 6 (internal quotations omitted). Barris also challenged the trial court’s analysis of his constitutional challenges.

Barris first argued that the trial court “looked only at the facial aspect of his constitutional challenge, ignoring the ‘as-applied’ challenge.” Slip op. at 7. Barris also argued that “he only seeks to do what he lawfully and safely did before the passage of the Ordinance—discharge his firearms on his property.” Slip op. at 7 (emphasis in original). The Township deferred to the trial court’s analysis of Barris’s constitutional challenge.

Commonwealth Court first explained the distinction between facial challenges and as-applied challenges. A facial challenge is the more difficult, requiring a challenger to show “that ‘no set of circumstances exist under which the [enactment] would be valid.’” Slip op. at 7 (quoting Clifton v. Allegheny Cnty., 969 A.2d 1197, 1122 (Pa. 2009). In contrast, in an as-applied challenge, the challenger need only show that the enactment is invalid “as applied to a particular person under a particular set of circumstances.” Slip op. at 7.

Observing that the trial court failed to conduct “any constitutional analysis of the gist of Barris’s claim—i.e., that the Ordinance, which restricts his ability to practice firing his firearms on his property . . . , unconstitutionally infringes on his rights under both the Second Amendment and Article I, Section 21 of the Constitution of Pennsylvania either facially or as[-] applied.” Slip op. at 8,  Commonwealth Court vacated the portion of the opinion striking Counts V and VI of the complaint and remanded the matter back to the trial court “to further to consider Barris’s constitutional challenges.” Slip op. at 8.

The Supreme Court granted allocatur to consider:

Whether an ordinance that limits target shooting to two non-residential zoning districts, and thus does not provide for shooting ranges at all private residences, is facially unconstitutional under the Second Amendment to the United States Constitution?

The Supreme Court also directed the parties to brief the following:

(1) whether th[e Supreme] Court should adopt the two-step framework for addressing Second Amendment challenges utilized by the lower court;

(2) whether the core Second Amendment right to possess firearms for self-defense recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), also implies a corresponding right to acquire and maintain proficiency in their use;

(3) Whether such a corresponding right, if it exists, must extend to one’s own home; and

(4) the level of scrutiny courts should apply when reviewing enactments that burden individuals’ ability to maintain firearms proficiency.


For more information, contact Kevin McKeon or Dennis Whitaker.