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Shooting ranges—whether indoor or outdoor—exist as approved land uses through many zoned communities in Michigan. Similarly, the siting of other related firearm uses, such as the siting of a gun store, have been straightforward and largely unchallenged in the preceding decades based on the United States Supreme Court’s clear endorsement of zoning in the 1920s. This remained true even though Michigan law provided longstanding protection for pre-existing ranges as well as new ranges. More recent decisions from the United States Supreme Court have invited a new wave of protections (and potential claims) for what otherwise may have been a straightforward zoning ordinance amendment or review of a permitted use application.

The change in this area of zoning stems from the United States Supreme Court’s seminal decision interpreting the Second Amendment to provide for individual protected rights to “keep and bear Arms.” Fast forward another 15 years, the United States Supreme Court established a new framework for analyzing alleged claims of being constitutionally deprived of the right to “keep and bear Arms” by a governmental entity. The two decisions together, along with various decisions across the United States on the scope of rights protected under similar Second Amendment issues, have blossomed into new considerations for municipalities regulating shooting ranges and related firearm uses.

Michigan has provided longstanding nuisance protection of established shooting ranges under the Sport Shooting Ranges Act, MCL 691.1541 et seq. While minimal litigation has been reported under that act, the potential expansion of the Second Amendment to also implicate the siting of commercial firearm uses creates additional consideration for municipalities, and their boards, planning commissions, planners, zoning administrators and attorneys reviewing these uses. This E-Letter explores Michigan’s Sport Shooting Ranges Act as a precursor to fully understand United States Supreme Court precedent that municipalities need to be aware of when addressing ordinance amendments or use application reviews for firearm activities and uses. Since recent decisions create more questions than they answer, this E-Letter attempts to bring awareness to this emerging area as well as providing some considerations. This area of the law will certainly continue to develop as state and federal courts continue to grapple with application of the Second Amendment to zoning regulations.

Michigan has Provided Statutory Protections to Shooting Ranges

In Michigan, many municipalities already ensure that compliance with the Sport Shooting Ranges Act (MCL 691.1541 et seq.) when regulating shooting ranges. The Sport Shooting Ranges Act provides essential protections for existing shooting ranges while preserving municipal authority to regulate their location and operation. The Act specifically prohibits nuisance actions against ranges that comply with generally accepted operation practices (GAOPs), and local ordinances applicable at the time the range was sited. Importantly, this means that new ranges are still subject to local ordinances, which would include conformance with zoning regulations of the applicable municipality. The core focus of the Act was to prevent those ranges that were compliant at the time of operation, including all local approvals, to later then be subject to nuisance suits as a result of noise or noise pollution. This limitation in how the Sport Shooting Ranges Act applies its scope of protection is why few reported cases have resulted under the Act, and why many municipalities have not been impacted in consideration of application zoning regulations and the siting of shooting ranges. Additionally, the Act is specific in that it applies to sport shooting ranges, and not other firearm uses more generally.

While the Act may have limited impacts on legal restrictions for a municipality considering zoning regulation amendments or review of a permitted use, the Act has been considered valuable in its establishment of the GAOPs of shooting ranges. These operating procedures that focus on best practices for noise, environmental contamination, and importantly, safety, have provided a resource for zoning ordinances to rely upon to assist in the siting of ranges.

The GAOPs are established by the Department of Natural Resources (the “DNR”) through adoption of the National Rifle Association (the “NRA”) guidelines and rules for the safe operation of shooting ranges and for the safe use of firearms. These guidelines can be found within the National Rifle Association Range Source Book, A Guide to Planning & Construction (2012) (“Range Book”). See Memorandum to the Director, March 28, 2019.^[1] The Range Book discusses range facility components that can protect the safety of those using and those surrounding the range. The NRA specifically outlines guidelines for sufficient backstops, which provide “a primary impact area for the bullets after being fired at the targets, keeping them from leaving the range proper under normal conditions.”^[2] The NRA lists common backdrops, including naturally occurring mountain sides or hills, steel or wooden cribs, geocell fabric, sand, soil, and earthen.^[3] The NRA delineates minimum heights for different types of backdrops.^[4]

Although the Sport Shooting Ranges Act has its limits in impacting a municipality’s regulation of “the location, use, operation, safety, and construction of a sport shooting range,” it has been valuable in identifying acceptable practices for safe ranges. MCL 691.1543. Many municipalities have incorporated the GAOPs as part of their analysis in siting ranges. Note, however, that the GAOPs do not guarantee that such ranges would be proper in all districts in a municipality nor that ranges would otherwise become palatable for purposes of noise levels and impacts on adjacent uses. Moreover, the Act leaves little to be addressed with other firearm uses that would be subject to traditional zoning regulations.

Zoning Ordinances Can Regulate the Location of Shooting Ranges and Firearm Related Uses

Since the 1920s, the United States Supreme Court has endorsed zoning as a valid exercise of municipal police power. For decades thereafter, zoning regulations include the siting and location of shooting ranges and firearm related uses, in part because the Second Amendment was not heavily litigated, and zoning restrictions had been continuously upheld by federal and state courts as a lawful exercise of authority. Zoning prevailed until the Supreme Court’s 2008 decision in District of Columbia v Heller, 554 US 570, 592 (2008).

In Heller, the Supreme Court pronounced that the scope of the Second Amendment protections is determined by the Second Amendment’s plain text, as informed by this Nation’s history. As explained in Heller, the “textual elements” of the Second Amendment’s operative clause— “the right of the people to keep and bear Arms, shall not be infringed”—“guarantee the individual right to possess and carry weapons in case of confrontation.” 554 US at 592. In reviewing these textual elements, Heller analyzed the meaning of “keep,” “bear,” and “Arms” as understood by history. The Supreme Court then summarized the meaning of the textual elements analyzed, concluding the Second Amendment guarantees the individual right to possess and carry weapons in case of confrontation. The Supreme Court held the right was not unlimited, just as the First Amendment’s right of free speech was not unlimited: “Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”

The Supreme Court’s Heller decision left much to still be expanded upon by subsequent decisions in state and federal courts. Moreover, the Court left a firm conviction that the right was not unlimited, but the long-reach of the Court’s new pronouncement was less than clear at that time.

Following Heller, the Court decided NY State Rifle & Pistol Ass’n v Bruen, 597 US 1; 142 S Ct 2111; 213 L Ed 2d 387 (2022). Under Bruen, the Court further fleshed out that: (1) “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. [(2)] The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. at 2129-30. Bruen affirms the plain text analysis of the Second Amendment, as informed by this nation’s history, performed under District of Columbia v Heller, 554 US 570, 592 (2008). Bruen, however, does complicate matters for municipalities because justification of any regulation requires addressing Bruen’s less-than-clear test where the challenged regulation is analogized against historical firearm regulations.

Here is the practical scenario that now causes consideration for these decisions when regulating land uses: a municipal council determines that it no longer wants to allow gun stores to concentrate in outlying residential areas, and amends regulations to provide that gun stores will now be limited to the municipality’s commercial district. A certain individual who desires to have convenient access to ammo and firearms then claims that requiring individuals within the municipal boundary to drive to the commercial district as opposed to the preferred areas within the residential zones infringes their right to keep and bear Arms. From their perspective, they would claim that firearms and the ammunition that go within them is necessary to exercise the right to keep and bear them. This scenario demonstrates how a traditional and regularly employed location restriction by land use classification can now create alleged constitutional deprivations and be subject to the Bruen test.

As for the first prong, there is some cause for concern as to how a municipality appreciates when regulation of a land use impacts a proposed course of conduct that may be alleged to be covered by the plain text of the Second Amendment. But, it is even more nuanced. As was recognized in a decision issued by the Sixth Circuit in Oakland Tactical Supply, LLC v Howell Twp, 103 F 4th 1186, 1192 (CA 6, 2024), courts are recognizing rights that are not within the plain text, but would be considered “implied,” “corresponding” or “ancillary” to the “right to keep and bear Arms.” The decisions that impact shooting ranges are not indifferent to those that similarly sweep in land use regulations controlling the location of gun stores. Federal courts have interpreted the text of the Second Amendment to imply a “right to train.” Specifically, “[t]he right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.” Ezell v City of Chicago, 651 F3d 684, 704 (CA 7, 2011) (“Ezell I”); see also Oakland Tactical Supply, LLC v Howell Twp, 103 F 4th 1186, 1192 (CA 6, 2024) (“We agree . . . that at least some training is protected, not as a matter of plain text, but because it is a necessary corollary to the right” to keep firearms for self-defense).

As for the second prong, the Supreme Court has explained “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Oakland Tactical Supply, 103 F 4th at 1192. If a court finds that the municipality’s zoning regulations infringe on an implied right (such as the right to train or obtain ammunition for a handgun), the municipality may then have to point to historical regulations from the Founding era (late 1700s to mid-1800s) to justify the restriction. While arguing that there are supporting historical analogs to zoning is possible, the process is neither economic nor swift in resolving litigation. Any challenge to a regulation that moves to the second prong may cause protracted litigation in an uncertain area of the law at this time.

Federal Court Decisions Grappling with Zoning Regulations of Firearm Related Uses Should Create Careful Consideration in Zoning Regulations and Review of Approved Uses

The United States Supreme Court’s decision in this area on establishing the general framework has been applied by lower courts in the context of zoning regulations and implied rights. The cases that have addressed these rights are limited in number, but their fact patterns and holdings illustrate land use types and use standards that should be carefully evaluated by municipalities and their staff when adopting zoning regulations.

In Ezell I, the City of Chicago enacted an effective ban on commercial shooting ranges within the City. This complete ban on shooting ranges was struck down by the Seventh Circuit. The federal appeals court determined that being unable to obtain training necessary to obtain a license to carry a handgun infringed on the core right of the Second Amendment. When dismissing the City’s claims about public safety concerns associated with shooting ranges, the court does endorse reasonable zoning regulation: “on this record those concerns are entirely speculative and, in any event, can be addressed through sensible zoning and other appropriately tailored regulations.” Id. at 709 (emphasis added).

After the firing range ban in Ezell I was struck down, Chicago implemented a more nuanced firing range restriction through zoning. However, these zoning restrictions were also not found to pass constitutional muster. Ezell v City of Chicago, 846 F3d 888 (CA 7, 2017) (“Ezell II”). In Ezell II, the court reasoned that the zoning regulations dramatically limit the ability to site a shooting range within city limits. Id. at 890. Under the combined effect of these zoning regulations, only 2.2% of the City’s total acreage is even theoretically available, and the commercial viability of any of these parcels is questionable—so much so that no shooting range yet exists. Id. This severely limits city residents’ Second Amendment right to maintain proficiency in firearm use via target practice at a range. Id. Thus, a regulation that is not a total ban but “severely limits” the right to train could become the subject of constitutional scrutiny if challenged in court. The Seventh Circuit’s holding remained limited insofar as it did not reverse its position that sensible zoning of these uses remains constitutional, and further recognized that only some training was protected by the plain text of the Second Amendment.

Collectively, the Seventh Circuit’s decisions in Ezell I and Ezell II may not have been difficult cases to decide once the court was prepared to recognize rights that are implied by the plain text. As many would agree, these were more straightforward decisions to arrive at based on the City of Chicago’s effective ban on range training, as well as the nexus of range training with the ability to obtain a license to carry a firearm. Moreover, unlike rural areas in Michigan, the City’s landscape was not conducive to individuals training on their own properties, nearby ranges, and public lands.

Shooting ranges have not been the only issue subject to review under new Second Amendment precedent. Even the restrictions on the ability to obtain ammunition for use with firearms has been subject to scrutiny for compliance with the Second Amendment. The Ninth Circuit addressed this issue in Jackson v City & County of San Francisco, 746 F 3d 953 (2014), in evaluating a regulation that purportedly eliminated a person’s ability to obtain ammunition. The Ninth Circuit recognized there could be a problem if the regulation prohibited the purchase of firearms thereby making “it impossible to use firearms for their core purpose.” Id. at 967. However, the Ninth Circuit ultimately held that the regulations “do not destroy the Second Amendment right” and survived the then-applicable scrutiny analysis. Id. at 970.

Three years later, the Ninth Circuit considered another challenge couched in the context of ancillary rights in Teixeira v County of Alameda, 873 F 3d 670 (2017). The regulation there prohibited firearm sales near residentially zoned districts, schools and day-care centers, other firearm retailers, and liquor stores. Id. at 673. The plaintiff alleged that the zoning restrictions violated the Second Amendment by impairing the sales of firearms and restricting firearm training. Id. at 676-681. The Ninth Circuit explained that “gun buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained” and the zoning regulations did “not burden conduct falling within the” Second Amendment. Id. at 689-690.

Last year, after Bruen, the Sixth Circuit issued its decision in Oakland Tactical Supply, LLC v Howell Township, 103 F 4th 1186, 1189 (6th Cir. 2024). Individuals and a gun store owner leased property in the township and sought to construct and operate at least one commercial shooting range that offered “target shooting for self-defense and other lawful purposes, including but not limited to a long distance (e.g. 1,000 yard) range.” In the township, outdoor and indoor ranges were permitted in four land use districts without limitation on distance. Individuals, like many rural townships, were also not restricted in any individual rights to engage in the discharge of firearms on private property, such as hunting, individual training, and any discharge of a firearm. The township did restrict shooting ranges from its ag-residential land use district. The Sixth Circuit, in affirming the township’s zoning regulation as constitutional and dismissing Plaintiffs’ claims, highlighted that Plaintiffs’ arguments involved conduct that was not recognized by the Second Amendment, and that the Zoning Ordinance did not infringe on their right to possess and carry arms in case of confrontation. Since the Zoning Ordinance did not ban all training, permitted shooting on private property as an accessory use throughout the township, and placed restrictions on commercial shooting ranges by location while allowing for non-commercial shooting on private property, the Plaintiffs’ proposed conduct to conduct commercial training—particularly at distances of 1,000 yards—was not protected. In essence, the court reached the same place as the Seventh Circuit in that sensible zoning regulations will be upheld.

In summary, courts have upheld the ability of municipalities to regulate and control the location of commercial gun stores and shooting ranges via its zoning power. See e.g., Oakland Tactical Supply, 103 F 4th at 1198-99 (Township’s ordinance limiting a parcel to agricultural and residential uses did not infringe on the right to train with firearms because indoor and outdoor ranges were permitted uses in several districts, and plaintiffs did not allege the township would have prohibited a range in those districts). However, the zoning regulations must be reasonable and cannot burden the right to train so dramatically that it causes an infringement on the core right that is protected by the Second Amendment.

Practical Considerations for Handling the Regulation of Shooting Ranges and Firearm Related Uses

Given the current state of this area of the law, municipalities should evaluate zoning regulations that will impact shooting ranges and related firearm uses. Notably, it is not clear exactly where the scope of the Second Amendment stops as it relates to recognizing implied, ancillary, or corresponding rights without further direction from the Supreme Court. For purposes of those municipalities within Michigan (and the Sixth Circuit), it is clear that some form of implied rights has been recognized, and thus regulation in these areas must be sensible.

Given the ambiguity in the area, there are some practical considerations when preparing zoning regulations or evaluating those in place:

1. To avoid implications of the Sport Shooting Ranges Act, municipalities should document and respect established ranges’ rights under the Sport Shooting Ranges Act that satisfy operational standards, particularly regarding noise regulations.
2. Municipalities developing shooting range regulations should be aware of and review the general accepted operating procedures adopted by the DNR to determine if they will assist in framing the zoning standards that control any specific range sited within a specific municipal jurisdiction.
3. Municipalities should consider whether the regulation imposes an effective ban on shooting ranges or firearm related uses, and the extent to which the municipality provided a legislative record for that basis when adopting the regulation. Municipalities should avoid total bans given that even the Michigan Zoning Enabling Act does not permit exclusionary zoning.
4. When evaluating the placement of such uses in land use districts, a municipality should work to understand the practical and effective ability to locate and operate the use within the district. For example, if the use is allowed in four districts, but the use standards imposed as part of the approval do not permit the use anywhere, the municipality should consider those implications and have an appropriate record to support such standards.
5. Municipalities should also be conscious of the cumulative effect of all of their regulations and the practicability of property owners placing shooting ranges in zoned areas. Courts will not take a blanket approach to determine whether a zoning ordinance on its face allows shooting ranges but will consider whether restrictions effectively preclude some type of protected activity.
6. Many rural communities in Michigan do recognize shooting ranges as use permitted by special use, which can provide for a good approval process to assess specific siting considerations during the zoning review, such as environmental concerns, safety, noise, traffic, compatibility with surrounding uses, and other public health, safety and welfare concerns. Special use permits allow for a municipality to evaluate site-specific concerns.
7. Those communities without the need to implement additional operational and use standards should explore the NRA Deskbook and its potential to provide helpful guidance and guardrails in safe and effective operation of ranges in those use districts where they are permitted.
8. If the municipality identifies certain concerns when preparing a regulation amendment or reviewing a specific proposed use, there are consultants within the firearms and range design and construction field that can assist the planning commission and governing board with common questions regarding them—particularly related to the siting of outdoor ranges.
9. Where any particular use presents potential coverage under the Second Amendment remains unclear, and so when regulations or uses are being reviewed and such protections are raised during the process, municipalities should discuss it with their planners and legal counsel. For example, while gun stores have been the subject of litigation, department stores and other mixed uses also sell firearms products as well as hunting licenses. The extent to which such uses would ever be recognized seems unlikely, but certainly also unclear.
10. In rural communities in Michigan where personal firearm use is largely unregulated, such position should continue to assist in defending zoning as sensible given the ample opportunities. However, it may be determined in the future to not completely absolve a municipality from being required to provide commercial shooting since courts seem reluctant to reach any holding that those with private land holdings or access to private land can exercise a right but others cannot.

The regulation of shooting ranges and firearm related uses continues to evolve through both state and federal law. Municipalities must balance traditional zoning authority with emerging constitutional considerations. While recent decisions provide helpful guidance, townships should consult with legal counsel when developing or applying regulations in this complex area.

By Christopher S. Patterson & David J. Szymanski

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation. The author of this E-Letter also participated in the defense of Oakland Tactical Supply, LLC v Howell Township.

[1]https://www.michigan.gov/-/media/Project/Websites/dnr/Documents/Ranges/GenerallyAccepted_Ops_Ranges_2019.pdf?rev=65c7587c022c426b89338546759a1304.

[2] Range Book, Section II, Chapter 2, § 2.04, page II-2-8.

[3] Id. at 2.04.1.

[4] Id.