William Drummond; Gpcc, LLC; Second Amendment Foundation, Inc. v. Robinson Township

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-1722
____________
WILLIAM DRUMMOND; GPCC, LLC; SECOND
AMENDMENT FOUNDATION, INC.,
Appellants
v.
ROBINSON TOWNSHIP; MARK DORSEY, Robinson
Township Zoning Officer, in his official and individual
capacity
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-18-cv-01127)
Honorable Marilyn J. Horan, United States District Judge
____________
Argued November 17, 2020
Before: JORDAN, KRAUSE, RESTREPO, Circuit Judges
(Opinion Filed: August 17, 2021)

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Alan Gura, Esq. [Argued]
916 Prince Street
Suite 107
Alexandria, VA 22314
Counsel for Appellants
Michael P. Gaetani, Esq.
Creenan & Baczkowski
3907 Old William Penn Highway
Suite 304
Murrysville, PA 15668
Trisha A. Gill, Esq. [Argued]
Sean R. Ridley, Esq.
Litchfield Cavo
603 Stanwix Street
10th Floor
Pittsburgh, PA 15222
Counsel for Appellees
Joseph G. S. Greenlee, Esq.
Firearms Policy Coalition
1215 K Street
17th Floor
Sacramento, CA 95814
Counsel for Amici Firearms Policy Coalition Inc.,
Firearms Policy Foundation, and Madison Society
Foundation Inc.

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Neal Goldfarb
1301 Fairmont Street, N.W.
Washington, D.C. 20009
Counsel for Amicus Neal Goldfarb
James P. Davy, Esq. [Argued]
P.O. Box 15216
Philadelphia, PA 19125
Counsel for Amici Giffords Law Center to Prevent
Gun Violence and Ceasefire Pennsylvania Education
Fund
____________
OPINION OF THE COURT
____________
KRAUSE, Circuit Judge.
In the wake of the Supreme Court’s landmark decision
in District of Columbia v. Heller, courts across the country,
including ours, have often been called upon to define the
Second Amendment’s boundaries. 554 U.S. 570 (2008). But
while the right to bear arms may no longer present a “vast terra
incognita,” uncharted frontiers remain. United States v.
Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011). This case
takes us to one such frontier: Whether restrictions on where
citizens can purchase or practice with firearms implicate the
right to bear arms, and, more specifically, whether the two

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challenged zoning rules interfere with that right. As neither
rule finds deep roots in history or tradition, we conclude that
both carry constitutional consequences.
But even as we recognize that the challenged rules must
pass constitutional muster, we reiterate that Second
Amendment review is not a monolith. As the two-step
framework we outlined in United States v. Marzzarella makes
clear, different laws trigger different tests. 614 F.3d 85, 89 (3d
Cir. 2010). In identifying which rules invade the Second
Amendment, we hunt for historical outliers—laws that lack
traditional counterparts. In subjecting those rules to
heightened scrutiny, likewise, we look for modern outliers—
laws with few parallels in contemporary practice. The more
“exceptional” a rule, the more likely the government has
overlooked less burdensome “options that could serve its
interests just as well.” McCullen v. Coakley, 573 U.S. 464, 490
(2014). Because the challenged zoning rules constitute
outliers, and because the pleading-stage materials fail to justify
their anomalous features, we will vacate the District Court’s
dismissal order and remand for discovery, and for a prompt
ruling on the pending motion for a preliminary injunction.
I. Background
A. The Greater Pittsburgh Gun Club
For the better part of a century, a 265-acre tract in
Robinson Township, Pennsylvania has hosted a gun range.
J.A. at 60. In its heyday, the range—now called the Greater
Pittsburgh Gun Club—boasted over 800 dues-paying members

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and also served as a practice location for nearby National
Guard units. Id. at 60–61. As time passed, and as owners came
and went, the Club continued to provide Robinson Township
residents with guns and a place to practice with them. Id.
Over the years, however, the Club also faced its share
of challenges. In 1993, for example, the Township initiated a
nuisance action against the Club. Id. at 16. The litigation
dragged on for years before a state court finally dismissed the
suit. Id. And, in 2008, the range’s then-owner pleaded guilty
to possessing weapons as a convicted felon and received a
three-year prison term as a result. With its owner behind bars,
the Club closed its doors, not to reopen for about a decade. J.A.
at 15.
The Club’s fortunes seemed poised to improve in 2017.
Id. at 61–64. The preceding winter, Appellant William
Drummond leased the property. Id. at 64. Consistent with the
Club’s prior use, Drummond intended to engage in “the retail
sale of firearms” and to “operat[e] a shooting range.” Id. In
particular, he planned to allow customers to shoot “ordinary
firearms of the kind in common use for traditional lawful
purposes, including pistols, shotguns, and center-fire rifles up
to .50 caliber.” Id. at 65.
For Drummond’s business to succeed, it needed to abide
by the Township’s zoning rules. Like many jurisdictions
following traditional practices, the Township divides its land
into districts “in which only compatible uses are allowed and
incompatible uses are excluded.” City of Edmonds v. Oxford

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House, Inc., 514 U.S. 725, 732 (1995) (citation omitted). At
the time Drummond finalized the lease, the Township
permitted gun ranges in three types of districts: Both Industrial
and Special Conservation districts could host “Shooting
Ranges,” J.A. at 150–51, and Interchange Business Districts
(IBD) could host “Sportsman’s Clubs.” See Zoning Ordinance
at Art. II, §§ 311, 601–02 (2017). Although Shooting Ranges
and Sportsman’s Clubs had different names, the Township held
them to the same standards: enforcing safety best practices,
minimizing noise, and refraining from serving alcohol during
shooting events. Id. That, however, was about to change.
B. The Revised Zoning Rules
When the Township’s residents learned that Drummond
had leased the Club, they “ask[ed] for re-zoning to limit
activities at the property.” J.A. at 118. More specifically, they
complained that renewed “use of high power rifles” at the Club
would pose a “nuisance” and a “danger.” Id. at 118, 121. They
therefore pressed the Township’s Board of Supervisors to
“control[ ]” the Club “through stricter zoning.”1 Id. at 118. For
his part, Drummond opposed any re-zoning. Id. at 67.
1 Drummond asserts that a “vendetta” motivated the
Township to implement stricter zoning rules. Opening Br. at
2. But as Drummond’s counsel acknowledged at oral
argument, the Township’s intent plays no part in our analysis
of his facial Second Amendment claims.

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The Board nonetheless voted to amend the rules
governing Sportsman’s Clubs in IBD districts, a category that
covers the land Drummond leased. Id. at 124. According to a
preamble prepared by the Board, the amendment’s purpose
was “to avoid nuisances and to provide for and protect the
public health, safety and welfare.” Id. To that end, the Board
instituted two changes that form the subject of this appeal:2
• The Rim-Fire Rifle Rule: Whereas the old version
of the ordinance allowed Sportsman’s Clubs to
organize center-fire rifle practice (as did
Drummond’s lease), the new version limits Clubs to
“pistol range, skeet shoot, trap and skeet, and rim-
fire rifle[]” practice. Id. at 125.
• The Non-Profit Ownership Rule: In contrast to
prior rules, which did not distinguish between for-
profit and non-profit entities, the ordinance now
defines a “Sportsman’s Club” as a “nonprofit entity
formed for conservation of wildlife or game, and to
provide members with opportunities for hunting,
fishing or shooting.” J.A. at 124.
2 The Board also switched Sportsman’s Clubs from a
“permitted use” to a “conditional use.” Id. at 127–28.
Drummond challenges this change in his complaint, but his
appeal focuses on the non-profit and rim-fire rifle rules, so we
do the same.

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When the Board imposed these limits on gun ranges in IBD
districts, it left intact the permissive rules governing gun ranges
in Industrial and Special Conservation districts. Id.
C. Resort to the Courts
This case began in 2018 and remains at the pleading
stage, yet has come before us once already. Soon after the
Township amended the ordinance, Drummond filed suit.3 He
did not assert that the rim-fire and non-profit rules injure him
in his capacity as the operator of a gun range. Instead, he
claimed that the rules restrict his customers’ efforts to acquire
firearms and maintain proficiency in their use. See Drummond
v. Twp. of Robinson, 784 F. App’x 82, 84 (3d Cir. 2019)
[hereinafter Drummond I]. So he challenged the ordinance as
facially unconstitutional and requested a preliminary
injunction barring the Township from enforcing it.
Once Drummond submitted his complaint, the
Township moved to dismiss. In probing the plausibility of
Drummond’s Second Amendment claims, the District Court
invoked the two-step framework articulated in United States v.
Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). Step One asks if
a law implicates the right to bear arms; if the answer is yes,
Step Two subjects the law to heightened scrutiny. Id. Because
3 The complaint also raised a Due Process claim, an
Equal Protection claim, and several as-applied Second
Amendment claims, but the District Court dismissed all of
those claims, and we previously affirmed those aspects of its
order. See Drummond v. Twp. of Robinson, 784 F. App’x 82,
83–84 (3d Cir. 2019) [hereinafter Drummond I].

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the Court determined that the challenged rules fall outside the
right’s scope, it dismissed the complaint and denied the
preliminary injunction motion as moot.
But when Drummond appealed to us, we reversed. We
explained that Marzzarella Step One demands a “textual and
historical” inquiry, and that the District Court had
inadvertently “skipped” that step. Drummond I, 784 F. App’x
at 84. Without taking a position as to the proper resolution of
Steps One or Two, we remanded for the District Court to revisit
its Second Amendment analysis.
After our mandate issued, three months passed. In the
interim, neither Drummond nor the Township requested a
status hearing, filed any motions, or otherwise acknowledged
our order. Nor did the District Court avail itself of
supplemental briefing or argument. Instead, it sua sponte
reconsidered and granted the Township’s motion to dismiss.
This time, the Court found that the Township’s
ordinance burdens conduct within the Second Amendment’s
scope, satisfying Marzzarella Step One. The Court went on to
hold, however, that Drummond’s Second Amendment claims
fail at Step Two. Even though no discovery had taken place,
the Court concluded that “the fit between the [challenged]
regulations and the Township’s objective is reasonable.” Id. at
663. So the District Court again dismissed the complaint.
Now before our Court for a second time, Drummond
urges us to vacate the dismissal order, to enter a preliminary

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injunction preventing the Township from enforcing the
ordinance, and to reassign this case to another district judge.
II. Motion to Dismiss4
The central question presented is whether Drummond
plausibly alleges that the Township’s rules contradict the
Second Amendment. To answer that question, we proceed in
three steps. First, we distill constitutional commands from
District of Columbia v. Heller, the North Star guiding our
Second Amendment jurisprudence. Second, applying those
commands, we hold that the Township’s ordinance implicates
the right to bear arms and must therefore face heightened
scrutiny. Finally, we explain why the Township cannot
overcome that scrutiny at the pleading stage.5
4 The District Court retained jurisdiction under 28
U.S.C. § 1331, and we wield jurisdiction under 28 U.S.C.
§ 1291. We exercise plenary review over a district court’s
dismissal of claims under Rule 12(b)(6), Geness v. Cox, 902
F.3d 344, 353–54 (3d Cir. 2018), accepting the complaint’s
factual allegations as true and construing them in the light most
favorable to the nonmoving party, Weimer v. Cty. of Fayette,
972 F.3d 177, 180 (3d Cir. 2020).
5 Drummond challenges the Township’s ordinance as
applied to him, but we affirmed the District Court’s ruling that
the as-applied challenge was unripe because Drummond never
gave “the local zoning hearing board the opportunity to review
the zoning officer’s decision.” Drummond I, 784 F. App’x at
83 n.1 (citation omitted). We are now dealing with a facial
challenge to the ordinance. But the distinction between facial
and as-applied claims “goes to the breadth of the remedy

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A. Heller’s Teachings
Before addressing Drummond’s claim, we review the
lessons laid down by Heller. Its core insight is by now
familiar: The Second Amendment enshrines an “individual
right to possess and carry weapons in case of confrontation.”
Heller, 554 U.S. at 592. That right, like most rights, “is not
unlimited.” Id. at 626. Indeed, Heller approved several
categories of gun regulations as consistent with the right to
bear arms. See id. at 626–27. Rather than elaborate the Second
Amendment’s “full scope,” id., however, the Court left it to
future cases to discern “additional classes of [lawful]
restrictions,” Marzzarella, 614 F.3d at 93.
But while Heller does not reveal all of the right’s limits,
it shows us how to find them. Here, as in other aspects of its
analysis, it draws on free speech doctrine. In First Amendment
cases, the Supreme Court defines categorical exceptions—for
“obscenity,” “defamation,” and “fraud,” for example—by
looking to “historical evidence” and “long-settled tradition[s].”
United States v. Stevens, 559 U.S. 460, 468–69 (2010). In
employed by the Court, not what must be pleaded in a
complaint.” Citizens United v. FEC, 558 U.S. 310, 331 (2010).
For this reason, the Supreme Court typically “consider[s] facial
challenges simply by applying the relevant constitutional test
to the challenged statute, without trying to dream up whether
or not there exists some hypothetical situation in which
application of the statute might be valid.” Bruni v. City of
Pittsburgh, 824 F.3d 353, 363 (3d Cir. 2016) (collecting cases).
We follow the same approach here.

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Second Amendment cases, likewise, we trace the right’s reach
by studying the historical record. Heller, 554 U.S. at 603.
If this historical inquiry reveals that a law interferes
with the Second Amendment, it must satisfy the same type of
searching tests we use to safeguard First Amendment
freedoms. Heller rules out rational-basis review as too feeble
to preserve “specific, enumerated right[s,]” like the right to
bear arms. See id. at 628 n.27. Instead, it requires that
challenged laws survive “some form of heightened scrutiny,”
whether strict or intermediate. Marzzarella, 614 F.3d at 96.
By subjecting gun regulations to these robust tests, we respect
the Court’s mandate to “elevate[ ] above all other interests the
right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” Heller, 554 U.S. at 635.
The two-step Marzzarella framework incorporates
these insights. Consistent with Heller, Step One ensures that
when we sketch the right’s scope, our inquiry remains rooted
in historical practices. See Marzzarella, 614 F.3d at 91. And,
also consistent with Heller, Step Two establishes that when a
rule restricts the right, it must endure either strict or
intermediate scrutiny as we articulated those tests in
Marzzarella. See id. at 97. In adapting those tests for new
Second Amendment domains, we may look to free speech
cases for guidance. See Marzzarella, 614 F.3d at 96–97; 99;
Ass’n of N.J. Rifle & Pistol Club, Inc. v. Att’y Gen., 910 F.3d
106, 123–24 n.28 (3d Cir. 2018). With these lessons in mind,
we turn to Drummond’s claim.

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B. Marzzarella Step One
Our task today is to apply Heller’s familiar approach in
an unfamiliar setting. Until now, neither the Supreme Court
nor our Court has confronted a Second Amendment claim
challenging a restriction on firearms purchase or practice.
Following Heller’s lead, we do not explore this “entire field”
today. 554 U.S. at 635. Rather, we survey only the historical
terrain necessary to settle whether the specific rules
Drummond challenges fall within “exceptions to the Second
Amendment guarantee.” Marzzarella, 614 F.3d at 91. In the
discussion below, we clarify the historical question before us
and then show why the challenged rules trigger heightened
scrutiny.6
The key to implementing Heller is deciding how closely
a contemporary rule must resemble its traditional counterparts.
If we approve only those rules that mirror “precise founding-
era analogue[s],” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 196
(5th Cir. 2012), we risk compelling governments to confront
“new weapons or modern circumstances” with old playbooks,
6 The Township declined to take a position as to
Marzzarella Step One, but we address it here because it
represents “a threshold question [of law] necessary to a proper
analysis.” Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309
F.3d 144, 158 n.15 (3d Cir. 2002); cf. McCullen v. Coakley,
573 U.S. 464, 478 (2014) (“[W]e think it unexceptional to
perform the first part of a multipart constitutional analysis
first.”).

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Heller v. District of Columbia, 670 F.3d 1244, 1275 (D.C. Cir.
2011) [hereinafter Heller II] (Kavanaugh, J., dissenting). At
the same time, if we uphold every modern law that remotely
resembles a historical analogue, we risk endorsing outliers that
our ancestors would never have accepted. To steer safely
between these twin dangers, courts focus on “whether a
particular type of regulation has been a ‘longstanding’
exception to the right.” United States v. Class, 930 F.3d 460,
465 (D.C. Cir. 2019) (citation omitted).
These principles refine our analytical approach. The
question before us is not whether the challenged rules replicate
precise historical models. That rigid approach would leave
municipal authorities with no room to respond to unique local
needs and priorities. See Nextel W. Corp. v. Unity Twp., 282
F.3d 257, 267 (3d Cir. 2002).
Instead, each challenged rule triggers an inquiry into a
distinct “type of regulation.” Class, 930 F.3d at 465. For the
rim-fire rifle rule, the question is if the Second and Fourteenth
Amendments’ ratifiers approved regulations barring training
with common weapons in areas where firearms practice was
otherwise permitted. For the non-profit ownership rule,
similarly, the question is if our ancestors accepted prohibitions
on the commercial operation of gun ranges in areas where they
were otherwise allowed. As it turns out, neither type of
regulation rests on deep historical foundations, so both
challenged rules attract heightened scrutiny.

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Start with the rim-fire rifle rule. In exploring the history
of what weapons citizens may carry for self-defense, Heller
excluded “dangerous and unusual weapons” from the Second
Amendment’s scope but included “arms in common use”
within its protection. 554 U.S. at 627, 624 (internal quotation
marks and citation omitted). This “implies a corresponding
right to acquire and maintain proficiency” with common
weapons. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir.
2011) [hereinafter Ezell I]. A right to bear those weapons, after
all, “wouldn’t mean much without the training and practice that
make [them] effective.” Id.
A similar distinction arises from a review of historical
practices. The only remotely analogous traditional rules that
we have found regulated gunpowder sales. For instance,
antebellum New Hampshire barred the sale of gunpowder “in
any highway . . . or on any wharf, or on parade or common,”
while postbellum Nebraska limited the sale of more than a
pound of “gunpowder or guncotton.” Compare 1825 N.H.
Laws 74, An Act to Regulate the Keeping and Selling, and the
Transporting of Gunpowder, ch. 61, § 5, with 1895 Neb. Laws
233, Revised Ordinances of Lincoln, Neb., ch. 14, art. XXV,
§ 17.7 These examples confirm that restrictions on “dangerous
and unusual weapons”—in this case, large amounts of
gunpowder—pose no Second Amendment problem. Caetano
7 As Heller observed, sources from “the period after [an
amendment’s] enactment” often provide a “critical tool of
constitutional interpretation.” 554 U.S. at 605 (emphasis
added).

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v. Massachusetts, 577 U.S. 411, 412 (2016) (per curiam)
(citation omitted). That principle provides no support to the
Township here, however, because center-fire weapons have
remained in common use since shortly after the Civil War. See
Hubbell v. United States, 20 Ct. Cl. 354, 369 (1885).
The non-profit ownership rule suffers from a similar
lack of historical foundations. In essence, this rule prevents
businesses in certain areas from selling guns or range time at a
profit. But we have previously concluded that a categorical
exception for rules “prohibiting the commercial sale of
firearms” would be “untenable” in light of Heller.
Marzzarella, 614 F.3d at 92 n.8. It is no surprise, then, that a
search for historical parallels comes up short. Neither the
Township nor its Amici have identified any persuasive
analogies. Nor have we.
Perhaps the closest comparison—and it is not especially
close—is to rules restricting who could purchase weapons.
Some Colonial and Reconstruction Era governments made it
illegal to sell guns to enslaved or formerly enslaved people and
members of Native American tribes.8 See Nat’l Rifle Ass’n,
700 F.3d at 200 (collecting examples); Teixeira v. Cnty. of
Alameda, 873 F.3d 670, 685 (9th Cir. 2017) (same). What
defeats this analogy, however, is that historical rules kept
8 As then-Judge Barrett once observed, “[i]t should go
without saying that such race-based exclusions would be
unconstitutional today.” Kanter v. Barr, 919 F.3d 437, 458 n.7
(7th Cir. 2019) (Barrett, J., dissenting).

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weapons out of the hands of certain buyers, while the non-
profit ownership rule aims to reduce sellers’ commercial gain.
Were we to conflate these distinct types of regulations, we
would read the historical record more loosely than Heller
allows.
This is not to say that rules restricting firearms purchase
and practice to zoning districts compatible with those uses
trigger heightened scrutiny. That aspect of the Township’s
ordinance, like the “longstanding prohibitions” Heller
approved, rests on deep historical roots. 554 U.S. at 626. To
borrow an example cited by the Seventh Circuit, Colonial
Boston made it illegal to practice anywhere other than “at the
lower End of [Boston] Common” or “from the Several
Batteries.” Act of May 28, 1746, ch. X, in Acts and Laws of
the Massachusetts Bay 208 (Kneeland ed. 1746) (cited in Ezell
I, 651 F.3d at 705). Other Founding Era cities likewise forbade
firearms purchase and practice in populated places.9 Similar
rules—in the form of Euclidean zoning ordinances—have been
widespread for at least a century. See Vill. of Euclid v. Ambler
Realty Co., 272 U.S. 365, 386–87 (1926).
9 See, e.g., 1788-1801 Ohio Laws 42, An Act for
Suppressing and Prohibiting Every Species of Gaming for
Money or Other Property, and for Making Void All Contracts
and Payments Made in Furtherance Thereof, ch. 13, § 4
(prohibiting firearms practice within “one quarter mile” of “the
nearest building”); Samuel Ames, The Revised Statutes of the
State of Rhode Island, at 204–05 (1857) (excluding “rifle
galler[ies]” from “the compact part of the city”).

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The Township’s ordinance deviates from this historical
paradigm. True, the ordinance shares some features with
traditional antecedents: It divides the Township into districts,
excludes firearms purchase and practice from residential areas,
and designates certain areas for center-fire practice and
commercial ranges.10 But the principle that emerges from First
Amendment cases—Heller’s favored constitutional analogy—
is that the presence of ordinary restrictions in some places
cannot excuse extraordinary restrictions in others.11 Thus, if
10 In defending its ordinance, the Township invites us to
take judicial notice of search results showing that about a dozen
gun stores operate in or near the Township. But at the pleading
stage, we consider “only the allegations contained in the
complaint, exhibits attached to the complaint and matters of
public record.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.
2014) (citations omitted). None of those categories cover the
search results.
11 On a related front, Amicus Giffords Law Center urges
us to exempt minimally-burdensome zoning restrictions from
Second Amendment scrutiny at Step One regardless of whether
they take an unprecedented form. See Amicus Giffords Br. at
25–27 (citing Teixeira, 873 F.3d at 680). But this proposal
ignores the Supreme Court’s emphasis on history and tradition
and strong preference for “well-defined and narrowly limited”
exceptions. Stevens, 559 U.S. at 468–69. Amicus’s broad,
burden-centered standard gives citizens little guidance about
what activities merit constitutional protection; deprives
governments of notice about which enactments face
heightened scrutiny; and threatens the coherence of

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we follow the Establishment Clause model by looking to
“longstanding history” and “tradition,” Am. Legion v. Am.
Humanist Ass’n, 139 S. Ct. 2067, 2089 (2019), a zoning
scheme that combines conventional districting with
unconventional rules will, by definition, lack traditional
counterparts. And if we borrow instead from free speech
doctrine, the availability of alternative districts for firearms
purchase and practice will inform our application of
heightened scrutiny, but will not justify a categorical
exception. See, e.g., City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 52 (1986). So no matter which First Amendment
analogue we choose, immunizing the Township’s atypical
rules would relegate the Second Amendment to a “second-
class right”—the precise outcome the Supreme Court has
instructed us to avoid. McDonald v. City of Chicago, 561 U.S.
742, 780 (2010).
C. Marzzarella Step Two
That brings us to the second and final step in the
Marzzarella framework. It boils down to two sub-parts. First
we decide whether to apply strict or intermediate scrutiny.
Then we test if the Township’s ordinance passes constitutional
muster.12 Marzzarella, 614 F.3d at 96.
our Marzzarella framework, which already accounts for
burden at Step Two. We have never endorsed an exception
that introduces so much uncertainty about the Second
Amendment’s scope, and we decline to do so today.
12 Drummond insists that our prior order resolved Step
Two in his favor, and that, in reaching a different result, the

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1. Intermediate Scrutiny Governs
The District Court subjected the challenged rules to
intermediate scrutiny, the Township urges that we do the same,
and Drummond takes no position on the issue. For the reasons
below, we agree that intermediate scrutiny represents the right
benchmark against which to measure Drummond’s claims.
Which type of scrutiny a law attracts depends on
whether it invades the Second Amendment’s “core.”
Marzzarella, 614 F.3d at 92. At its heart, the Amendment
“protects the right of law-abiding citizens to possess non-
dangerous weapons for self-defense in the home.”
Marzzarella, 614 F.3d at 92 (footnote omitted) (citing Heller,
554 U.S. at 635). When a law disables defense at home by
banning “arms in common use . . . for lawful purposes,” it
triggers strict scrutiny. See Heller, 554 U.S. at 625, 628
(invalidating a categorical ban on “handgun possession in the
home”). But when a law limits other uses of firearms, or
defense that takes place in public, intermediate scrutiny
prevails. See, e.g., Drake, 724 F.3d at 436 (applying
intermediate scrutiny to public-carry restrictions).
Most purchase and practice restrictions merit
intermediate rather than strict scrutiny. In exceptional cases,
though, limits on buying and training with weapons in public
District Court defied our mandate. We cannot agree. While
we directed the Court to follow Marzzarella’s two-step
framework, we declined to dictate the outcome of either step.
See Drummond I, 784 F. App’x at 84.

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pose a “functional[ ] bar” to defense in private. N.Y. State Rifle
& Pistol Ass’n, Inc. v. City of New York, 883 F.3d 45, 56–57,
59 (2d Cir. 2018), vacated on other grounds, 140 S. Ct. 1525
(2020). If a zoning ordinance has the effect of depriving
would-be gun owners of the guns and skills commonly used
for lawful purposes like self-defense in their homes, strict
scrutiny may be warranted.13 See Ass’n of N.J. Rifle & Pistol
Clubs, 910 F.3d at 117. When Chicago enacted a rule
“prohibit[ing] all firing ranges in the city,” for example, the
Seventh Circuit enforced an especially “rigorous” form of
intermediate scrutiny, “if not quite ‘strict scrutiny.’” Ezell I,
651 F.3d at 690, 708.
In contrast to Chicago’s “total ban,” the Township’s
ordinance preserves avenues for citizens to acquire weapons
and maintain proficiency in their use. Id. at 690. It prohibits
commercially-operated Sportsman’s Clubs, but permits their
non-profit counterparts. It forbids center-fire cartridges, but
frees citizens to train with other forms of ammunition. And it
regulates IBD districts, but opens two other districts to
commercial ranges and center-fire rifle training. Because the
ordinance stops short of a ban on firearms purchase and
13 This functional approach has been applied both to
practice restrictions, see Ezell v. City of Chicago, 846 F.3d 888,
894 (7th Cir. 2017) [hereinafter Ezell II]; (requiring the
government to make target shooting “practicable” for gun
owners), and purchase restrictions, see United States v. Focia,
869 F.3d 1269, 1286 (11th Cir. 2017) (upholding a prohibition
on certain interstate firearm transfers partly because it “only
minimally affects the ability to acquire a firearm”).

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practice in the Township, the core right to self-defense emerges
intact.
Perhaps reluctant to endorse this approach, Drummond
encourages us to equate gun stores with bookstores. When the
government restricts what bookstores may sell or display,
courts usually apply strict scrutiny, see Ben Rich Trading, Inc.
v. City of Vineland, 126 F.3d 155, 160 (3d Cir. 1997), and
Drummond suggests that we should treat gun stores the same
way. But this analogy falls flat: The First Amendment shields
bookstores not because they inform readers’ speech, but
“because [the bookstores] themselves . . . are seen as speaking
by distributing material that they want to distribute.” Eugene
Volokh, Implementing the Right to Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research
Agenda, 56 UCLA L. R EV . 1443, 1545 n.437 (2009). The same
cannot be said of gun stores. We know of no court, modern or
otherwise, to hold that the Second Amendment secures a
standalone right to sell guns or range time. See generally id. at
1545. And even Drummond does not ask us to go so far.
To sum up: The challenged ordinance steers clear of the
Second Amendment’s core and thus implicates intermediate
scrutiny.
2. The Ordinance Plausibly Fails
Intermediate Scrutiny
With the level of scrutiny settled, all that remains is to
apply it. We first outline what intermediate scrutiny requires,
then show why the challenged rules cannot overcome

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intermediate scrutiny at the pleading stage, and finally explain
where the Township’s counterarguments go awry.14
a) What Intermediate Scrutiny
Requires
To survive intermediate scrutiny, a law must clear two
hurdles. First, it must serve a “significant, substantial, or
important” government interest. Marzzarella, 614 F.3d at 98
(internal quotation marks and citations omitted). Second, “the
fit between the asserted interest and the challenged law” must
be “reasonable” and “may not burden more conduct than is
reasonably necessary.”15 Drake, 724 F.3d at 436 (internal
quotation marks, citation, and brackets omitted). Though we
owe “substantial deference” to local zoning decisions, id.; see
Bruni v. City of Pittsburgh, 824 F.3d 353, 370 n.18 (3d Cir.
2016), restrictions on conduct within the scope of the Second
Amendment must still satisfy these requirements, see Ezell v.
City of Chicago, 846 F.3d 888, 896 (7th Cir. 2017) [hereinafter
Ezell II]; Turner Broad. Sys. Inc. v. FCC, 520 U.S. 180, 195
14 Drummond also argues that a prior state court
judgment carries a preclusive effect that prevents us from
finding in the Township’s favor as to Step Two. Because a
straightforward application of intermediate scrutiny dictates
that we vacate and remand, we see no need to reach this issue.
15 As we recently noted, we have occasionally used the
term “substantial fit” rather than “reasonable fit.” See United
States v. Boyd, 999 F.3d 171, 188 n.14 (3d Cir. 2021). To be
clear, those terms describe a single standard, which we will
reference as the parties do, as the reasonable-fit test.

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(1997) (explaining that courts have an obligation “to assure
that, in formulating [their] judgments, [the governing body]
has drawn reasonable inferences based on substantial
evidence” (citation omitted)).
In applying intermediate scrutiny, the District Court
borrowed from First Amendment doctrine. When a free speech
plaintiff challenges a time, place, or manner restriction, the
government must demonstrate interest, fit, and a third
element—that the restriction “leave[s] open ample alternative
channels” for speech. Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989) (citations omitted). Importing this test and
focusing on the alternative-channels element, the District
Court found that Drummond failed to “plead any facts
regarding the availability or absence of other commercial gun
ranges or gun ranges where center-fire rifles may be fired.”
J.A. at 35. Because of that failure, the Court dismissed
Drummond’s claims without analyzing fit.
But while the District Court was right to look to free
speech cases for guidance, it drew the wrong lessons—or at
least incomplete ones. Critically here, our First Amendment
jurisprudence makes clear that the government, not the
plaintiff, must prove that a challenged law satisfies
intermediate scrutiny. See Bruni, 824 F.3d at 369. So at
Marzzarella Step Two, the Township needs to establish fit.
When a rule places only a de minimis burden on the right to
bear arms, it may be clear—even “before any evidence is
produced”—that the rule “is reasonably narrowly tailored.”
Bruni, 824 F.3d at 372 n.20; id. at 377 n.18 (Fuentes, J.,

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concurring). But when a rule imposes a “significant” burden
and takes an “exceptional” form, as is true of the challenged
rules here, “the government must demonstrate that alternative
measures that burden substantially less [protected activity]
would fail to achieve [its] interests.” McCullen, 573 U.S. at
489, 490, 495. By shifting the evidentiary burden from the
Township to Drummond, and by performing no analysis of
alternatives, the District Court subjected the challenged rules
to far less searching scrutiny than our cases command.
b) Why the Township Fails to
Establish Fit
For efficiency’s sake and for illustrative purposes, we
examine the interest and fit elements ourselves, rather than
remanding for the District Court to do so. At the outset, there
is no doubt that the ordinance promotes a substantial
government interest. It aims to advance “public health, safety
and welfare,” J.A. at 124, controlling cases treat those interests
as important, see Drake, 724 F.3d at 437; United States v.
Salerno, 481 U.S. 739, 748–49 (1987), and Drummond does
not dispute this point.16 That the Township’s “asserted
interests are important in the abstract does not mean, however,
that the [challenged zoning] rules will in fact advance those
16 The District Court also decided that “nuisance
prevention” was an important government objective. J.A. at
10. Without any analysis or at least additional factual details
identifying the nature of the alleged nuisance, a generic
“nuisance prevention” label does not, in and of itself, establish
a threat to public safety or any other important government
objective.

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interests.” Phillips v. Borough of Keyport, 107 F.3d 164, 174–
75 (3d Cir. 1997) (citation omitted). The Township “must do
more than simply ‘posit the existence of the disease sought to
be cured.’” Id. Instead, it must persuade us that “the recited
harms are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material way.”
Id. That leaves us to focus on the fit between the Township’s
ends and the means it uses to achieve them.
And therein lies the problem. The first and most
important sign that something is amiss comes from the
ordinance’s outlier status. When a challenged law has few
analogues, it raises concern “that the [government] has too
readily forgone options that could serve its interests just as
well, without substantially burdening” protected conduct.
McCullen, 573 U.S. at 490. This is such a case. Neither the
Township nor its Amici put forward any parallels for the
challenged rules, whether in history or in contemporary
practice. See Section II.B, supra. The ordinance’s outlier
status cannot be decisive, of course, but it does trigger an
especially exacting means-ends analysis.
A closer look at the challenged rules reveals serious
questions about fit. First consider the rim-fire rifle rule. On
the Township’s account, this rule prevents the use of powerful
ammunition, reducing noise and increasing safety. But as the
Township admitted at oral argument, this theory is just that: A
theory, unsupported by evidence. See Ezell II, 846 F.3d at 896.
And even if it were otherwise, the Township would still need
to show it “seriously considered” more targeted tools for

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achieving its ends. Bruni, 824 F.3d at 371. To take two
obvious examples, the Township already instructs Sportsman’s
Clubs to implement noise-reduction techniques and range-
safety best practices. Zoning Ordinance at Art. III, § 311. It is
true that the Township need not “demonstrate it has tried or
considered every less burdensome alternative,” but it cannot
forego an entire “range of alternatives” without developing “a
meaningful record . . . that those options would fail to
alleviate the problems meant to be addressed.” Bruni, 824 F.3d
at 370–71. If considered judgment or experience has exposed
less-burdensome alternatives as unreasonable, that is for the
Township to show after discovery.
Now turn to the non-profit ownership rule. On appeal,
the Township justifies this rule on the ground that it moderates
the intensity of use at Sportsman’s Clubs.17 But even if
evidence corroborated this point—and at this early stage, none
does—it would hardly establish sufficient tailoring. See Ezell
II, 846 F.3d at 896. Here again, “less intrusive tools” for
relieving commercial intensity would appear to be “readily
available.” McCullen, 573 U.S. at 494. It is not apparent, for
instance, why the Township could not achieve its goals by
implementing occupancy limits or hours-of-operation
restrictions, for nowhere has it demonstrated—at least not
yet—that it “reasonably rejected” common regulatory tools in
17 Prior to this appeal, the Township did not identify
“intensity of land use” as a justification in its pleadings,
exhibits, or arguments; rather, that possible justification was
independently raised by the District Court and is only now
raised by the Township.

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favor of the unusual prohibition on for-profit firing ranges.
Bruni, 824 F.3d at 371.
So far, we have identified two reasons why the
ordinance plausibly fails intermediate scrutiny: No evidence
ties the challenged rules to the asserted interest, and the
Township neglects to explain why it eschewed more targeted
alternatives. But the Township also encounters a third
problem. When it implemented the non-profit ownership and
rim-fire rifle rules for Sportsman’s Clubs, the Township left
the permissive rules regulating Shooting Ranges intact. It also
continued to allow individuals to practice with center-fire rifles
everywhere in IBD districts aside from Sportsman’s Clubs.
These glaring instances of under-inclusion exacerbate our
already significant concerns about fit.
If non-profit status moderates commercial intensity, as
the Township insists, why permit for-profit Shooting Ranges?
And if center-fire rifles amplify noise and safety concerns, why
allow them at Shooting Ranges—indeed, everywhere other
than Sportsman’s Clubs? To the extent the Township posits
that adjacent uses or other circumstances explain its “truly
exceptional” decision to single out Sportsman’s Clubs,
McCullen, 373 U.S. at 490, it must support that position not
with “lawyers’ talk,” but with actual “evidence.” Ezell II, 846
F.3d at 896 (citation and quotation marks omitted). And at the
pleading stage, of course, the Township has none.

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c) Where the Township’s
Counterarguments Founder
In resisting Drummond’s request for remand, the
Township advances two arguments. It first urges us to defer to
the Board’s findings. The ordinance’s preamble states that the
challenged rules promote the “health, safety and welfare” of
the Township’s residents. J.A. at 124. Relying on our
longstanding reluctance to “sit as a zoning board of appeals,”
Chez Sez III Corp. v. Twp. of Union, 945 F.2d 628, 633 (3d Cir.
1991) (citation omitted), and emphasizing that we afford
“some deference” to zoning rules that restrict speech, Bruni,
824 F.3d at 370, the Township depicts the preamble as
definitively resolving the ordinance’s fit.
The problem with this proposal is that it amounts not to
“some deference,” but total abdication. Bruni, 824 F.3d at 370.
If a zoning board could immunize its own rules from review
merely by mentioning public safety, heightened scrutiny would
be heightened in name only. Indeed, the Township’s proposal
would authorize even absolute bans on gun ranges and stores
whenever a local zoning board believes a ban would promote
public safety. Heller demands far more. See 554 U.S. at 576,
632.
Taking another tack, the Township assigns the
ordinance to a category of low-burden laws that overcome
intermediate scrutiny without discovery. When a rule places
only a “slight burden” on protected conduct, it may be
impossible to identify “alternative measures” that would
“burden substantially less [conduct].” Bruni, 824 F.3d at 372

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n.20 (citation omitted). Under those circumstances, it may be
obvious—“even at the pleading stage”—that the rule
overcomes intermediate scrutiny. Id. Our First Amendment
precedents leave open this possibility, see id., and we see
nothing in Heller to foreclose it in the Second Amendment
context.
In this case, however, we cannot be confident that the
ordinance inflicts only a de minimis burden on the right to bear
arms. As the Township argues and as we accept above, the
challenged rules stop short of an absolute ban on firearms
purchase and practice. It does not follow, though, that the
burden they produce is not significant. The non-profit
ownership rule, in particular, has already forced the Greater
Pittsburgh Gun Club out of business, and may have the same
effect on other Sportsman’s Clubs. It is plausible that those
closures impair residents’ access to the weapons and skills
commonly used to lawfully defend their homes. Thus, whether
the challenged rules impose a slight burden or a substantial one
is not a question we can decide at the pleading stage.18
18 As previously noted, see supra note 10, the
Township’s motion to dismiss included search results showing
that some gun stores operate in or near the Township. But even
if we were to take judicial notice of those results, itself
problematic, they tell us nothing about whether nearby stores
provide adequate substitutes for the Greater Pittsburgh Gun
Club and any other Sportsman’s Clubs that may have closed as
a result of the challenged ordinance, nor does access to
alternatives for purchasing firearms resolve our concerns
associated with restrictions on firearms practice.

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31
Our Second Amendment inquiry ends where it began.
Heller rejects rational-basis review and instead requires a
rigorous analysis of rules that interfere with the right to bear
arms. Here, for example, the Township must marshal evidence
to explain why, for Sportsman’s Clubs in IBD districts, it
embraced the unusual rim-fire rifle and non-profit ownership
rules over more common, less burdensome alternatives. The
question is not whether the Township used “the least restrictive
or least intrusive means of serving its interests,” Ward, 491
U.S. at 798, but whether it “seriously considered[] substantially
less restrictive alternatives,” Bruni, 824 F.3d at 357. As is
unsurprising at the pleading stage, the Township has failed to
“establish a close fit between the challenged zoning regulations
and the actual public benefits they serve—and to do so with
actual evidence, not just assertions.” Ezell II, 846 F.3d at 894;
Binderup v. Att’y Gen., 836 F.3d 336, 354 (3d Cir. 2016)
(requiring the government to “present some meaningful
evidence, not mere assertions, to justify its predictive
judgments” (alteration in original) (citation omitted)). We
leave it to the District Court to analyze whatever evidence the
Township presents in light of these governing principles.
III. Remaining Motions
In addition to seeking reinstatement of his Second
Amendment claims, Drummond asks us to enter a preliminary
injunction and to reassign this case to another district judge.
We reject both requests.
First, rather than address Drummond’s request for a
preliminary injunction, we will remand for the District Court

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to consider that relief. Drummond’s preliminary injunction
motion did not receive a substantive ruling before the District
Court dismissed this action. Assuming the motion is renewed
on remand, we trust the District Court will address it promptly.
Second, we decline to reassign this case to another
district judge. It is well-established that “adverse rulings—
even if they are erroneous—are not in themselves proof of
prejudice or bias.” Arrowpoint Capital Corp. v. Arrowpoint
Asset Mgmt., LLC, 793 F.3d 313, 330 (3d Cir. 2015) (citations
omitted). This principle assumes particular importance in
cases, like this one, where a district court must apply complex
constitutional principles in an unfamiliar factual context. And,
contrary to Drummond’s suggestion, the District Court did not
disregard our prior order. That order directed the Court to
follow Marzzarella’s two-step framework, not to reach a
particular result at either step. We remain confident in the
District Judge’s ability to thoughtfully and impartially oversee
this case.
IV. Conclusion
For the foregoing reasons, we vacate the order
dismissing Drummond’s Second Amendment claims, deny his
request for reassignment, and remand for further proceedings
consistent with this opinion.

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