Lower courts willingly thumb nose at SCOTUS over Second Amendment

by Gary Marbut

6:00am Thursday, September 26, 2024

Too many federal courts engage in a quiet or open mutiny against U.S. Supreme Court authority. SCOTUS must correct one such rebellion by a panel of the Sixth Circuit Court of Appeals by granting certiorari in Oakland Tactical Supply v. Howell Township, a Michigan case.

In Oakland Tactical, the company was denied permission by Howell Township, using zoning regulations, to create and operate a 1,000-yard shooting range. Other circuits have examined this question and have determined that the Second Amendment protects ancillary items and activities related to the core and reserved constitutional right, including the right to practice and train with firearms.

This is comparable to the First Amendment’s accepted protection of access to printer’s ink and paper.

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In its recent New York Rifle and Pistol Association v. Bruen decision, SCOTUS set out a new methodology for courts’ review of Second Amendment cases: the two-step text and history standard. If a government action implicates the text of the Second Amendment in any way, then the analysis moves to the second step, wherein the government must demonstrate by historical examples that such restrictions were actually tolerated and accepted by those who crafted and adopted the Second Amendment in 1791.

Knowing that there are no examples of zoning restrictions of shooting ranges from 1791, the majority of the Sixth Circuit’s three-judge, anti-gun panel chose to derail the new SCOTUS standard of review in its first step.

In its decision, the panel asserted that the Bruen and other SCOTUS Second Amendment decisions are only about using firearms for self-defense. According to the Sixth’s panel, since self-defense is not justified at 1,000 yards, therefore Howell Township’s denial of permission for the Oakland Tactical’s shooting range using zoning regulations does not affect or run afoul of the Second Amendment.

What is entirely rogue is the Sixth panel’s position that the Second Amendment is only about self-defense and not about hunting, competitive shooting, personal challenge distance shooting, training, firearms instruction, or even a well-trained militia. The panel uses this dodge to halt the inquiry at the first step of SCOTUS’s new and required text and history methodology.

Building and operating a 1,000-yard shooting range has nothing to do with the Second Amendment, says the panel.

From the Montana perspective, I disagree emphatically. Hunting here often necessitates long shots. These long shots require long shooting ranges where hunters and others can test rifles and ammunition at distance, and develop distance shooting skills. Plus, there are hundreds or thousands of riflemen who compete at long-range shooting matches in Montana every year. These matches are conducted at, and practiced for, at plentiful Montana shooting ranges that offer long-distance shooting opportunities.

Montana gun owners would be shocked to hear that a federal court in the “East” believes that the Second Amendment only protects shooting at short distances.

This is why SCOTUS must take the Oakland Tactical case and use it to tamp down on rogue federal courts that make up disingenuous reasons to ignore firm and clear direction from SCOTUS.

Historical lore says that when Joe Stalin was informed about criticism by the Pope, he asked dismissively, “How many divisions has the Pope?” With the Oakland Tactical cert petition, we will learn if SCOTUS has the will to enforce its authority over errant inferior courts.

Gary Marbut is president of the Montana Shooting Sports Association. Republished with permission from AmmoLand.