Township argues proposed gun range not covered by Second Amendment

HOWELL TWP. — Township officials and their attorneys are again trying to get a federal judge to dismiss a lawsuit over a proposed shooting range.

Oakland Tactical Supply owner Mike Paige and five firearms owners recently made headway in federal appeals court in their 2018 suit against the township, which sent the case back to a lower court, but now the plaintiffs will have to convince the same district court judge who ruled against them in 2020 to change his mind.

In their suit, Oakland Tactical and gun owners  Scott Fresh, Jason Raines, Matthew Remenar, Edward Dimitroff and Ronald Penrod claim the township violated the Second Amendment by denying Paige’s request to amend the township’s zoning ordinance to allow shooting ranges on land zoned for agricultural residential development.

U.S. District Court Judge Bernard Friedman ruled in 2020 the township did not violate the gun owners’ constitutional rights.

This August, U.S. 6th Circuit Court of Appeals judges sent the Howell Township case back to the U.S. District Court for the Eastern District of Michigan in light of a U.S. Supreme Court ruling on gun rights in New York State Rifle & Pistol Association Inc. v. Bruen, which struck down a New York law requiring state residents to have a special need to carry weapons outside the home.

The Supreme Court ruling also changed the “test” lower courts should use when determining the constitutionality of firearm regulations.

Township, gun owners present arguments

Howell Township and Oakland Tactical recently submitted briefs to the court arguing their sides.

Township officials have asked Friedman to again support their argument.

“The Supreme Court’s reasoning in Bruen does not change this court’s determination of the scope of the Second Amendment in its prior (2020) opinion,” township attorneys said in a brief filed Sept. 30.

Township attorneys argue Oakland Tactical is claiming an “overextended right” that is not covered by the plain text of the Second Amendment.

Oakland Tactical and its attorneys have argued that the township effectively banned outdoor, long-distance shooting ranges and violated their right to train with firearms in a safe setting.

“Plaintiffs maintain that the conduct at issue here — training with firearms — is covered by the plain text of the Second Amendment,” Oakland Tactical’s attorneys said in a brief dated Oct. 14.

Messages seeking comment were left with township attorney Christopher Patterson.

Oakland Tactical attorney Martha Dean said in a statement Thursday in an email to Livingston Daily the plaintiff would file another appeal if the case is dismissed.

“[I]f the pending 12(c) motion to dismiss is granted (which we do not believe is likely, though it is certainly possible), the case will be appealed once again by Plaintiffs to the U.S. Court of Appeals (6th Circuit),” Dean wrote in the email, adding, “If it is denied, we expect discovery to commence and, potentially, the filing of additional dispositive motions.”

Dean also issued a statement claiming the township failed to meet requirements established by Bruen.

“On Aug. 31, 2022 Howell Township was ordered by the U.S. District Court to brief, in accordance with the U.S. Supreme Court’s recent decision in Bruen, ‘whether historical evidence–to be produced by the Township … demonstrates that the [Howell Township Zoning] Ordinance’s shooting regulations are consistent with the nation’s historical tradition of firearm regulation;’ the Township filed its brief on Sept. 30, 2022, failing to even attempt to provide such historical evidence,” she wrote. “The plaintiffs assume the Township did not provide evidence because they did not find any, as the nation’s historical traditions provide abundant documentation of their right to practice with their firearms at traditional distances for such firearms.”

Plan for 1,000-yard shooting range halted

Paige wants to develop Premier Precision Park, which would feature a 1,000-yard, outdoor shooting range and other amenities at an abandoned gravel pit on about 350 acres on Fleming Road. His plans include a conference center, restaurant, trout fishery and swimming beach.

In 2017, Paige requested township officials amend the zoning ordinance to allow outdoor gun ranges on land zoned for agricultural residential development, including the former quarry.

Township planners denied the zoning change and expressed concern that it would have applied to any land in the township zoned for agricultural residential use.

When Friedman dismissed the suit in 2020, he concluded local governments are not required to permit shooting ranges within a particular zoning district, and the township is not banning ranges because they are allowed in other districts.

“(Oakland Tactical has) cited no cases that support the proposition that a local government, such as Howell Township, is required by the Second Amendment to grant a request to change its zoning ordinance such that the construction and use of shooting ranges must be permitted anywhere within that governmental entity’s boundaries with a particular zoning designation,” Friedman wrote in his 2020 order dismissing the suit.

“In the present case, the requested amendment was so expansive that it would have applied not only to Oakland Tactical’s 352-acre parcel but to the entire AR district, which comprises 13,500 acres (21 square miles) or 65% or more of the township’s land,” he continued.

In 2021, township officials amended the zoning ordinance to classify sport shooting ranges as either indoor or outdoor recreation facilities, and permit them in four types of zoning districts: regional service commercial highway service commercial, industrial flex zone and industrial — but not agricultural.

Citing case law, township attorneys argue in the brief, “Heller, McDonald and Bruen’s analyses are instructive for this Court because ‘to keep and bear arms’ cannot be construed according to its historical understanding to include a right to locate, construct, or operate an ‘outdoor, 1,000-yard shooting range’ in any location Oakland Tactical chooses.”

Oakland Tactical’s attorneys also dispute the claim that an outdoor range would be allowed anywhere under the township’s amended ordinance.

“The ordinance might appear to permit such ranges, but each apparent opening vanishes under scrutiny,” attorney argue in the brief, continuing, “To start, the ordinance classifies ‘rifle ranges’ as ‘open air business uses … but it does ‘not allow open air business uses, either by right or as a special use, in any zone in Howell Township.’

“Second, the ordinance permits certain recreational facilities in the Regional Service Commercial District and the Heavy Commercial District — but no outdoor recreational facilities,” they said.