             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Gun Range, LLC,                       :
                Appellant                 :
                                          :   No. 1529 C.D. 2016
             v.                           :
                                          :   Argued: May 2, 2017
City of Philadelphia, Philadelphia        :
Zoning Board of Adjustment,               :
Spring Garden Civic Association,          :
Patricia Freeland, Justino Navarro,       :
Lawrence Rust, Regina Young,              :
Bryan Miller, Heeding God’s Call          :
to End Gun Violence and Susan A.          :
Murray                                    :


BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                        FILED: May 7, 2018

             The Gun Range, LLC (Appellant) appeals from the August 11, 2016
order of the Court of Common Pleas of Philadelphia County (trial court), which
affirmed the October 6, 2015 decision of the Philadelphia Zoning Board of
Adjustment (ZBA) and which denied Appellant’s statutory appeal of the ZBA’s
refusal to permit a proposed gun shop on its property within a CMX-2 zoning
district.1



       1
          A CMX-2 zoning district represents a small-scale neighborhood commercial and
residential mixed use.
                          Facts and Procedural History
             In 2012, Appellant began leasing space on the second floor of a building
on the property at 542-44 Percy Street in the City of Philadelphia (City), which is
classified as a CMX-2 commercial zoning district, to operate a shooting range. That
property had been used as a shooting range since 1985, when the ZBA approved an
application for a certificate for operation of a 2nd floor shooting range. (Reproduced
Record (R.R.) at 207a-10a, 241a-72a; ZBA’s Findings of Fact Nos. 9-12.)
             On March 20, 2015, Appellant filed an application with the City’s
Department of Licenses and Inspections (L&I) for a zoning use registration permit,
seeking approval of a change from “gun range” to “gun range & gun sales.” The
application confirmed that the Percy Street site is located in an area zoned CMX-2.
L&I denied the proposed use on April 22, 2015, citing non-compliance with the
Philadelphia Zoning Code (Zoning Code) Table 14-602-2 and section 603(13), and
finding that, “The proposed use, gun shop, is prohibited in this zoning district and
prohibited within 500 ft. of residential district.” (R.R. at 32a-33a.) Additionally, a
Regulated Use Inspection Report issued by L&I on April 2, 2015, indicated that
Appellant was within 53 feet of residences on the 900 block of Green Street and
within 85 feet of residences at 915 Spring Garden Street. (ZBA’s Finding of Fact
No. 3.)
             On April 22, 2015, Appellant appealed the denial of the application to
the ZBA, asking for a variance and arguing that “granting the requested variance
will obviate an existing hardship and will not be contrary to the public interest.”
(R.R. at 34a.) Appellant also alleged, “[t]he requested variance represents the least
modification of the [Zoning] Code to provide relief,” and “[t]he granting of the
variance will not increase congestion in the public streets nor in any way endanger
public safety.” (R.R. at 34a-35a.)


                                          2
             The ZBA held a hearing on August 12, 2015. At the outset of the
hearing, Appellant’s counsel informed the ZBA that Appellant was “amending” its
reasons for the appeal and that it would not be pursuing a variance. (R.R. at 41a.)
In lieu thereof, Appellant’s counsel stated that Appellant was appealing on the basis
that L&I’s refusal of the proposed gun shop was in error and, as set forth in said
counsel’s Memorandum to the ZBA, that state law preempted the City’s ability to
regulate guns, that the Zoning Code’s gun regulations are unconstitutional violations
of the Second Amendment to the U.S. Constitution and article 1, section 21 of the
Pennsylvania Constitution, and that the Zoning Code as it relates to guns is also
unconstitutional as being de facto exclusionary. (R.R. at 40a-41a, 160a-71a.)
             The ZBA allowed Appellant to amend its appeal because none of the
other parties objected. (R.R. at 39a-45a.) The ZBA also accepted the Memorandum
submitted by Appellant’s counsel and afforded opposing counsel 30 days to submit
a written response thereto, as well as permitting Appellant’s counsel 15 days
thereafter to supplement her initial submission. (R.R. at 109a-11a.)
             Appellant offered two witnesses:        Bindu Mathew, the L&I Plans
Examiner who denied the application, and Yuri Zalzman, the principal for Appellant.
Appellant’s first witness, Ms. Mathew, testified:

             The application came in for a gun shop and the gun shop
             is an illegal use, and that is why I issued a refusal. Now,
             a part of that, when I reviewed the application, we checked
             the history on the appeal form from 1985 that clearly says
             they do not do the retail of gun sales in this location. . . .
             So that means that Permit is only for a shooting range and
             not for a gun shop. And you’re asking for a gun shop as
             part of [Appellant’s application in the present case], and
             that is a prohibitive [sic] use.
(R.R. at 89a-90a.)


                                           3
             Ms. Mathew also testified that there was a separate zoning classification
for a “gun shop,” which she stated was allowed in only one zoning district by right,
I-3. The “gun shop” classification was not permitted at all in CMX-2 and was
allowed only as a special exception in other zoning districts.           Her testimony
confirmed that the refusal was also based on the fact that the proposed gun shop was
located within 500 feet of a residential district. (R.R. at 99a-100a.)
             Appellant’s next witness, Mr. Zalzman, testified that Appellant
operated an “indoor gun range” that also sold ammunition, targets, and cleaning
supplies, and rented guns for use at the shooting range only. (R.R. at 102a, 121a-
22a.) He described the Appellant’s neighborhood as:

             It’s mostly commercial. There is a building adjoining me
             that is an industrial building. There is a construction
             company across the street.          The original Reading
             Terminal, which is an artist colony now, is directly across
             the street. Behind there is a railroad trestle, barbed wire.
             Around the corner on Spring Garden there are multiple
             shops. There’s a police continuing education [building]
             there at 10th and Spring Garden.
(R.R. at 103a.)
             He testified that there were some residential units near Appellant’s site,
as well as a Buddhist temple and St. Paul’s Baptist Church. (R.R. at 130a-37a.) Mr.
Zalzman also testified that Appellant was “the only indoor shooting range in
Philadelphia that does not have a gun retail [sales] aspect to it.” (R.R. at 118a.) He
testified further that he believed that the ZBA permitted the sale of guns at
Appellant’s site since 1985. (R.R. at 126a.)
             Following Mr. Zalzman’s testimony, Ed Panek testified on behalf of
the Logan Square Neighborhood Association, which opposed Appellant’s
application. State Representative W. Curtis Thomas also testified as the legislator

                                          4
in whose district Appellant’s business is located, and he noted his opposition. Other
neighbors, as well as a representative of the Buddhist temple and the Pastor of St.
Paul’s Baptist Church, also stood to oppose the application (without testifying).
(R.R. at 139a-45a.)
                  Appellant also offered a map identifying those parts of the City in
which a gun shop could open for business as of right, which are located in the I-3
zoning district, comprising approximately 3.74% of the total area of the City of
Philadelphia. (R.R. at 282a-83a.) Further, as the ZBA noted, Appellant argued that
“state law preempts Philadelphia’s ability to regulate guns” and that “The [Zoning]
Code as it relates to gun sales is unconstitutional.” (ZBA’s Finding of Fact No. 19.)
More specifically, Appellant argued that the Pennsylvania Uniform Firearms Act of
1995 (Firearms Act)2 preempted the City’s Zoning Code and that the Zoning Code
infringes on a person’s right to keep and bear arms under the United States and
Pennsylvania Constitutions.3 See R.R. at 163a-68a.
                  On October 6, 2015, the ZBA voted to deny Appellant’s appeal,
concluding that “the retail sale of guns is not permitted at the property and that L&I
acted correctly in issuing [Appellant] a refusal.” (ZBA’s Finding of Fact No. 8;
Conclusion of Law No. 14.) Specifically, the ZBA found that the 1985 approval
was for a “certificate” to allow the shooting range and that a “certificate” was the
equivalent of a special exception. (ZBA’s Finding of Fact No. 12; Conclusion of
Law No. 11.) Further, the ZBA found that Appellant’s present site is located within
the CMX-2 zoning district, and that, as such, use as a gun shop is specifically


        2
            18 Pa.C.S. §§6101-6187.

        3
            Appellant later reiterated these issues before the trial court. See R.R. at 521a-26a, 697a-
776a.


                                                    5
prohibited under the current Zoning Code. Further, the ZBA found that “the
proposed sales [of firearms] would represent an expansion of the use previously
approved by the [ZBA] and that retail sales of guns did not fall into the same
category as shooting range at the time the 1984 [sic] Certificate was granted.”
(ZBA’s Finding of Fact No. 3; Conclusion of Law No. 2.)
             Additionally, the ZBA found that the Zoning Code did not allow gun
sales on the property because Appellant’s site is within 500 feet of a residential
district, citing the Zoning Code at section 14-601(6)(c)(.2). (ZBA’s Conclusions of
Law Nos. 3-4.) Finally, the ZBA ruled that it lacked jurisdiction to address any
preemption or constitutional arguments. (ZBA’s Conclusion of Law No. 15; Exhibit
C to Appellant’s brief at 7.)
             Appellant filed a timely appeal of the ZBA’s October 6, 2015 decision
to the trial court on October 29, 2015. On December 3, 2015, and December 31,
2015, the following parties intervened in the matter to oppose the appeal: Spring
Garden Civic Association, Patricia Freeland, Justino Navarro, Lawrence Rust,
Regina Young, Bryan Miller, Heeding God’s Call to End Gun Violence, and Susan
A. Murray (collectively, Intervenors). (R.R. at 21a.) On April 5, 2016, Appellant
filed a motion to quash, seeking to dismiss Intervenors from the appeal. (R.R. at
25a.) The trial court denied that motion on May 3, 2016. (R.R. at 27a.) On June
28, 2016, Mr. Zalzman filed his own petition to intervene, which was denied as
untimely by the trial court’s order of July 25, 2016. (R.R. at 29a.)
             With respect to the appeal, the trial court allowed briefing and convened
oral argument on June 29, 2016, but no additional evidence was presented. (R.R. at
493a-502a, 697a-777a.) By order of August 9, 2016, the trial court affirmed the
ZBA’s decision. Appellant filed an appeal to this Court on September 7, 2016. On



                                          6
December 2, 2016, the trial court filed an opinion in support of its August 9, 2016
order. The trial court’s opinion rejected Appellant’s arguments, holding that the
City’s Zoning Code: (1) did not permit the addition of retail gun sales at Appellant’s
shooting range; (2) was not preempted by Pennsylvania law concerning firearms;
and (3) was not unconstitutional as it pertained to sales of firearms. (Trial court op.
at 4.)
               With respect to the first argument, Appellant argued that its proposed
gun sales were already a permissible use within the City’s CMX-2 zoning district,
contending that because the specific term “shooting range” was absent from the
Zoning Code, and because ammunition was sold and guns were loaned to customers
at the shooting range, the terms “shooting range” and “gun shop” must therefore “be
read to be synonymous.” (Trial court op. at 5.) The trial court rejected Appellant’s
argument, explaining that Table 14-602-2 of the Zoning Code “delineates the
permissible and impermissible uses for property designated within a Commercial
district. The Table clearly established that a gun shop was not permissible within a
CMX-2 district . . . .” (Trial court op. at 5.)
               Moreover, according to the trial court, Table 14-602-2 showed “that a
gun shop is ‘expressly prohibited’ within any type of Commercial district in the City
of Philadelphia and references Section 14-603(13), which designates a gun shop as
a regulated use and renders it subject to specific separation requirements,” including
a ban on its location within 500 feet of any residential district. Id. Because
Appellant was located within 53 feet of residences, Appellant’s proposal failed. The
trial court noted that “a variance would be required to operate a gun shop, unless the
property’s existing certificate would permit such use, which it did not.” (Trial court
op. at 5-6.)



                                            7
               Appellant’s second argument was that state law concerning firearms
preempts local zoning regulations. The trial court disagreed, stating that “this Court
rejects any argument that state law pre-empts [sic] reasonable local zoning
regulations even where, as here, constitutional rights are implicated in the
regulations.” (Trial court op. at 6.) The Zoning Code provisions challenged by
Appellant “merely seek to regulate the location of gun sales and do not in any way
seek to regulate or impinge upon the ownership, possession, or transfer of guns.”
(Trial court op. at 6) (emphasis in original). In a related vein, the trial court held that
Appellant failed to demonstrate that the Zoning Code was “clearly arbitrary and
unreasonable,” or that the provisions of the Zoning Code had no “substantial relation
to the public health, safety, morals or general welfare,” because the proposed sale of
firearms “is less than 60 feet away from a concentrated residential district near
downtown Philadelphia, and, as such, the City has an important governmental
objective in limiting retail gun sales in such district.” (Trial court op. at 6-7)
(emphasis in original). The trial court did not address Appellant’s arguments
regarding the constitutional concerns about the Zoning Code as it pertained to gun
sales.


                                          Discussion
               Appellant filed a timely appeal to this Court,4 arguing that: (1) the ZBA
capriciously disregarded evidence when determining that the requested use as a gun

         4
         When the trial court does not take additional evidence, our scope of review is limited to
determining whether the zoning board committed an abuse of discretion or an error of law. Society
Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of
Philadelphia, 814 A.2d 847, 850 (Pa. Cmwlth. 2003). The zoning board abuses its discretion when
it makes material findings of fact not supported by substantial evidence. Id. Substantial evidence
is such relevant evidence as a reasonable mind might find adequate to support a conclusion.



                                                8
shop was not permitted; (2) the ZBA’s decision was erroneous because the City’s
Zoning Code attempts to regulate firearms in a manner preempted by state law; (3)
the ZBA’s decision was erroneous because the City’s Zoning Code attempts to
regulate firearms in a manner that is unconstitutional; and (4) the City’s Zoning Code
is unconstitutional because it is de facto exclusionary.


                           Capricious Disregard of Evidence
               Appellant first argues that the ZBA capriciously disregarded evidence
of “the manner of classification of uses under the current Zoning Code.”
(Appellant’s brief at 15.) The Zoning Code uses a system of land use categories and
“use subcategories” that are broken down further to “specific use types.” Zoning
Code, §14-601. The Zoning Code classifies a “gun shop” under a use category
(“Retail Sales”), a use subcategory (“Consumer Goods”), and a specific use (“Gun
Shop”). Zoning Code, §14-601(6)(c)(.2).
               According to Appellant, because there is no equivalent classification
for “shooting ranges,” the most appropriate classification in the current Zoning Code
would be “gun shop” and that, accordingly, use as a “gun shop” is currently
permitted at the site. (Appellant’s brief at 21.) Specifically, Appellant takes a leap
of logic and equates “shooting range” (the property’s use since 1985) with “gun
shop” (a use Appellant freely admits is not the business presently conducted on the
property), rationalizing that: (1) the closest classification in the Zoning Code is “gun
shop”; and (2) other shooting ranges in the City feature retail sales of firearms.

Teazers, Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 682 A.2d 856, 858 n.3
(Pa. Cmwlth. 1996). Where a party asserts capricious disregard of evidence as a ground for appeal,
this Court must address that concern. Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal
Board (Marlowe), 812 A.2d 478, 487-88 (Pa. 2002).



                                                9
              In response, the City argues that the Zoning Code prohibits issuance of
the use permit sought by Appellant. The certificate issued in 1985 allowed a
shooting range in the same way that a special exception would be approved today,
and there is nothing in that certificate, express or implied, that allows Appellant to
ignore the Zoning Code’s prohibition against gun shops in the CMX-2 zone. Zoning
Code, §§14-602(2)(d) and 14-602(5). Further, the gun shop located at Appellant’s
site cannot be considered a pre-existing non-conforming use, because the only use
pre-dating the inclusion of a “gun shop” class in the Zoning Code was the use as a
shooting range. Permitting the retail sale of firearms would represent an improper
expansion of the site’s existing approved use as a shooting range. The City asserts
that a shooting range is simply not the same as a gun shop under the Zoning Code,
even if other shooting ranges in the City also have retail firearms sales.
              The Zoning Code was revised in 2007 to include zoning regulation of
“gun shops.” When these amendments were passed, the only use at Appellant’s site
was that of a shooting range. Appellant cannot now assert a new, non-conforming
use which did not exist at the time the applicable zoning ordinance was enacted.
Hanna v. Zoning Board of Adjustment of the City of Philadelphia, 183 A.2d 539,
543-44 (Pa. 1962).
              Appellant conflates definitions with exclusions and ignores the basic
fact that gun shops, i.e., the retail sales of firearms, are prohibited in the CMX-2
zone in which its shooting range is located. A shooting range and a gun shop are
different uses of property. Gun shops are not banned in Philadelphia; rather, they
are allowed as of right in the I-3 zone and allowed by special exception in the ICMX
and I-2 zones.5

       5
        An I-2 zone represents a medium industrial use. An I-3 zone represents a heavy industrial
use. An ICMX zone represents a mixed industrial and commercial use.


                                               10
             Appellant offered no evidence to support its argument that the ZBA
capriciously disregarded evidence of the manner of classification of uses under the
current Zoning Code beyond equating the site’s present use as a shooting range with
its proposed use as a gun shop. As such, the trial court did not err in affirming the
ZBA on this issue.


                                     Preemption
             Appellant next argues that because “the transfer of firearms is what
occurs at a gun shop,” the Zoning Code is preempted by the Firearms Act to the
extent the Zoning Code seeks to regulate gun shops. (Appellant’s brief at 22.) The
Firearms Act reads in pertinent part:

              No county, municipality or township may in any manner
              regulate the lawful ownership, possession, transfer or
              transportation of firearms, ammunition or ammunition
              components when carried or transported for purposes not
              prohibited by the laws of this Commonwealth.
18 Pa.C.S. §6120(a).
             Appellant cites Ortiz v. Commonwealth of Pennsylvania, 681 A.2d 152
(Pa. 1996), for the proposition that “[b]ecause the ownership of firearms is
constitutionally protected, its regulation is a matter of statewide concern. . . . Thus,
regulation of firearms is a matter of concern in all of Pennsylvania, not merely in
Philadelphia and Pittsburgh, and the General Assembly, not city councils, is the
proper forum for the imposition of such regulation.” Id. at 156.
             On the other hand, the City argues that the Firearms Act does not
preempt its Zoning Code. While section 6120(a) of the Firearms Act preempts the
“regulation” of firearms, Pennsylvania courts have held that such preemption of a
local regulation does not result in the preemption of local zoning regulations unless

                                          11
specifically provided for in the statute.           Good v. Zoning Hearing Board of
Heidelberg Township, 967 A.2d 421, 428-29 (Pa. Cmwlth.), appeal denied, 973
A.2d 1008 (Pa. 2009). Applying Good, the City argues that Pennsylvania precedent
distinguishes between local ordinances that regulate how a particular activity is
conducted (which may be preempted), on the one hand, and local zoning ordinances
that regulate where a particular activity can be conducted (that is, a property’s use,
which may not be preempted), on the other hand. Id. at 429. If the General
Assembly had intended to preempt local zoning of retail firearms sales, concluded
the City, it could have done so, just as it passed legislation in 2012 to modify what
is commonly known as the Oil and Gas Act6 to include section 3304(b)(3),7 which
preempted local restrictions on drilling in the Marcellus Shale Formation.
                Pennsylvania’s Constitution reads in pertinent part, “[a] municipality
which has a home rule charter may exercise any power or perform any function not
denied by this Constitution, by its home rule charter or by the General Assembly at
any time.”8 Philadelphia has a home rule charter, which is governed by the First
Class City Home Rule Act of 1949 (Home Rule Act).9 As applied to a city of the
first class such as Philadelphia, section 18 of the Home Rule Act states:
“Notwithstanding the grant of powers contained in this act, no city shall exercise
powers contrary to or in limitation or enlargement of, powers granted by acts of the
General Assembly which are . . . [a]pplicable in every part of the Commonwealth . .

      6
          Act of February 14, 2012, P.L. 87, No. 13, as amended, 58 Pa.C.S. §§2301-3309.

      7
          58 Pa.C.S. §3304(b)(3).

      8
          PA. CONST., art. 9, §2.

      9
          Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§13101 – 13157.



                                              12
. [or] [a]pplicable to all the cities of the Commonwealth.” 53 P.S. §13133. Our
Supreme Court has held that matters of the ownership, possession, transfer, or
transportation of firearms, and of their use for personal protection or for the defense
of the state, are not the proper subjects of regulation by municipalities, including
Philadelphia. Ortiz, 681 A.2d at 156.
             Here, the case turns on whether section 6120(a) of the Firearms Act
preempts zoning action by municipalities where the business of the retail sales of
firearms is not prohibited (either de facto or de jure) by a local government, but is
kept within one zoning district by right (the I-3 zone) and is allowable by special
exception in two other zones (ICMX and I-2). Because the Zoning Code regulates
the location of uses such as a “gun shop,” and does not restrict how the business is
conducted or whether it may be conducted within the City limits, its zoning
regulations as to the retail sales of firearms are not preempted by the Firearms Act.
Good, 967 A.2d at 429.
             Indeed, in the present case, there is no evidence that the City has
burdened any citizen’s right to the “ownership, possession, transfer or transportation
of firearms,” as protected by section 6120(a). Accordingly, the trial court did not
err when it acknowledged important constitutional rights, as well as the
Commonwealth’s statewide interest in firearms rights as evidenced in section
6120(a) of the Firearms Act, but found nonetheless that the Zoning Code was not
preempted by the same. (Trial court op. at 6-7.)


                                  Constitutionality
             Appellant asserts as its third issue that the City’s Zoning Code is
unconstitutional as it relates to firearms because it violates the Second Amendment



                                          13
to the United States Constitution, as well as article 1, section 21 of the Pennsylvania
Constitution. Appellant maintains that because the City’s zoning law seeks only to
regulate, not restrict, the acquisition of firearms and the maintenance of proficiency
in their use, such regulation should be upheld if it passes “intermediate scrutiny,”
which requires more than “rational basis” review but less than “strict scrutiny.”
(Appellant’s brief at 26.) According to Appellant, the City failed to provide any
justification “for the severe limitation on the ability to sell and acquire firearms to a
very limited zoning district.” (Id.) Thus, Appellant contends that under any level of
scrutiny, the City’s regulation of firearms through the Zoning Code must fail.
             The City counters that this is not a Second Amendment case because
the Zoning Code does not impose a burden on conduct falling within the scope of
the Second Amendment.         Instead, the City posits that the Zoning Code is a
presumptively lawful regulatory measure that does not interfere with the Second
Amendment’s core tenant of protecting the right of law-abiding citizens to use
firearms to defend “hearth and home.” (Appellee’s brief at 33-34.) The City also
asserts that Appellant failed to demonstrate that the Zoning Code burdened the
Second Amendment rights of City residents and Appellant. The City further argues
that even if Appellant had shown that the Second Amendment is implicated, its
Zoning Code is “appropriate” because it “ensures harmonious development.”
(Appellee’s brief at 33.)
             The trial court simply failed to address the constitutional issues raised
by Appellant. It opaquely acknowledges that Appellant raised the argument that
“the Philadelphia [Zoning] Code is unconstitutional as it relates to gun sales” at page
4 of its opinion and then adds the following cryptic passage, “This Court has rejected




                                           14
such argument and instead accepted the Findings and Conclusions of the [ZBA].”
(Trial court op. at 4.)
              However, the “Conclusions of the [ZBA]” do not address the claims on
unconstitutionality raised by Appellant. On the contrary, as noted supra, the ZBA
expressly stated that Appellant’s “preemption and constitutional arguments are not
within the [ZBA’s] jurisdiction and therefore are not addressed here.” (ZBA’s
Conclusion of Law No. 15). Given that the trial court “accepted” the ZBA’s
conclusions, including this one, and does not devote any substantive portion of its
opinion to Appellant’s claims of unconstitutionality, it can only be concluded that
the trial court passed on addressing these issues. That the trial court failed to address
these issues is even more obvious by the fact that it expressly addressed Appellant’s
preemption arguments even though the ZBA had demurred on addressing that issue
as well.
              Because the trial court failed to address the constitutional arguments
preserved and presented for review, the matter must be remanded to the trial court
to do so. See Zoning Board of Adjustment of the City of Philadelphia v. Willits
Woods Associates, 534 A.2d 862, 866 (Pa. Cmwlth. 1987) (“[S]ince the question of
the constitutionality of the Philadelphia Zoning Code . . . was properly submitted to
the ZBA, we now remand this matter to the trial court for a determination on the
constitutional issue.”); London v. Zoning Board of Adjustment (Pa. Cmwlth., No.
2256 C.D. 2014, filed July 7, 2016), slip op. at 9-10 (“[T]he trial court’s order
denying [a]pplicant’s appeal is vacated and the matter is remanded to the trial court
for consideration of the constitutional issues.”).




                                           15
                                    Conclusion
             Appellant offered no evidence to support its argument that the ZBA
capriciously disregarded evidence of the manner of classification of uses under the
current Zoning Code. Nor did Appellant establish that the Zoning Code was
preempted by the Firearms Act. Hence, the trial court did not err to the extent that
it rejected these arguments by Appellant.
             However, the trial court erred to the extent that it did not address the
constitutional arguments raised by Appellant.         Indeed, a restriction on an
individual’s ability to lawfully purchase guns is not insulated from constitutional
scrutiny merely because it is cloaked within the imprimatur of the Zoning Code.
             In this case, the ZBA did not address the constitutional issues based
upon its conclusion that it lacked authority to address the same and the trial court
simply failed to address the constitutional concerns raised by Appellant. While such
issues may or may not be beyond the jurisdiction of the ZBA, these issues were
properly preserved by Appellant on appeal to the trial court. Accordingly, the
decision of the trial court is affirmed to the extent it rejected Appellant’s argument
that the ZBA capriciously disregarded evidence of the manner of classification of
uses under the current Zoning Code and that the Zoning Code was preempted by the
Firearms Act. However, we remand this case to the trial court to address the
constitutional issues raised by Appellant under the Second Amendment of the United
States Constitution, as well as under article 1, section 21 of the Pennsylvania




                                         16
Constitution.10 In so doing, we direct the trial court to decide these issues on the
record that is before it and to not take any additional evidence.11



                                                      ________________________________
                                                      PATRICIA A. McCULLOUGH, Judge



Judges Cohn Jubelirer, Simpson and Fizzano Cannon did not participate in this
decision.

        10
           Contrary to the Dissent, a remand to the trial court is warranted herein. As the Dissent
notes, Appellant raised both a facial as well as an-applied constitutional challenge to the City’s
Zoning Code. However, the ZBA concluded that “constitutional arguments [were] not within [its]
jurisdiction and therefore [were] not addressed [in its decision].” (ZBA’s Conclusion of Law No.
15.) More specifically, Appellant argued first before the ZBA, and later before the trial court, that
the restriction on the location of gun shops within the City’s Zoning Code constitutes “a serious
encroachment on the right to acquire firearms.” See R.R. at 167a, 525a. Moreover, the Dissent
mischaracterizes Appellant’s argument in its brief regarding the Pennsylvania Constitution as
consisting of a single paragraph that merely lists the constitutional provisions at issue and sets
forth “a bare conclusion that those provisions are violated.” (Dissent, slip op. at 17.) However,
the Dissent ignores that Appellant’s state and federal constitutional arguments are intertwined
throughout its brief, see Appellant’s brief at 25-34, similar to the merger of state and federal
constitutional issues this Court encountered in Caba v. Weaknecht, 64 A.3d 39 (Pa. Cmwlth.),
appeal denied, 77 A.3d 1261 (Pa. 2013), a case cited by Appellant.

        11
             The Dissent would have us affirm the trial court as to these constitutional issues, but
since the trial court did not address them, there is nothing to affirm. The Dissent also leaps to the
conclusion that Appellant’s constitutional arguments should be rejected on the basis of the Ninth
Circuit’s decision in Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017). The Dissent
contends that this case should “inform” the decision in this case and further notes that Teixeira is
not discussed herein.
         It is not discussed for two reasons. First, it is premature for this Court to rule on Appellant’s
constitutional issues as these are to be addressed by the trial court. Second, Teixeira is not only
not binding upon this Court, it is from a court whose jurisdiction, unlike that of the Third Circuit,
does not even encompass the territorial confines of Pennsylvania. While the Dissent may posit
that Teixeira should be adopted, the same could just as readily be said about Ezell v. City of
Chicago, 846 F.3d 888 (7th Cir. 2017), which has been cited for authority by Appellant in support
of its constitutional claims.



                                                   17
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Gun Range, LLC,                       :
                Appellant                 :
                                          :    No. 1529 C.D. 2016
             v.                           :
                                          :
City of Philadelphia, Philadelphia        :
Zoning Board of Adjustment,               :
Spring Garden Civic Association,          :
Patricia Freeland, Justino Navarro,       :
Lawrence Rust, Regina Young,              :
Bryan Miller, Heeding God’s Call          :
to End Gun Violence and Susan A.          :
Murray                                    :


                                      ORDER


             AND NOW, this 7th day of May, 2018, the order of the Court of
Common Pleas of Philadelphia County (trial court), dated August 11, 2016, is hereby
affirmed in part and vacated in part, and the matter is remanded consistent with this
opinion.
             Jurisdiction relinquished.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Gun Range, LLC,                     :
                Appellant               :
                                        :
            v.                          :   No. 1529 C.D. 2016
                                        :   Argued: May 2, 2017
City of Philadelphia, Philadelphia      :
Zoning Board of Adjustment,             :
Spring Garden Civic Association,        :
Patricia Freeland, Justino Navarro,     :
Lawrence Rust, Regina Young,            :
Bryan Miller, Heeding God’s Call        :
to End Gun Violence and Susan A.        :
Murray                                  :


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


DISSENTING OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: May 7, 2018


            While I agree with the majority’s resolution of the other issues in this
case, I disagree with the majority that we need to remand this matter to the Court
of Common Pleas of Philadelphia County (trial court) to examine the constitutional
issues regarding the Second Amendment because it is unnecessary since we are not
reviewing the trial court’s decision but that of the Philadelphia Zoning Board of
Adjustment (Zoning Board).
              This case is informed by an en banc Ninth Circuit decision in Teixeira
v. County of Alameda, 873 F.3d 670 (9th Cir. 2017), which held that there is no
right guaranteed under the Second Amendment that gives a person the right to
sell guns, but that there is a “core Second Amendment right to keep and bear
arms for self-defense [that] ‘wouldn’t mean much’ without the ability to acquire
arms.” Teixeira, 873 F.3d at 677 (citations omitted). It recognized that firearms’
dealers may assert that right on behalf of their potential customers. Because The
Gun Range does not have an independent Second Amendment right to sell guns
and also failed to establish that the zoning restrictions here unreasonably burden
gun owners’ rights to acquire guns, I would affirm the trial court.


                                         I.
              A short summary of the law regarding rights guaranteed by the
Second Amendment is needed to give context to Teixeira and how Teixeira applies
to the facts of this case.


                                         A.
              The Second Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const. amend. II. In District of Columbia v.
Heller, 554 U.S. 570 (2008) (Heller I), the United States Supreme Court held, for
the first time, that the Second Amendment protects the individual right of law-
abiding citizens to possess an operable handgun in the home for self-defense.




                                      DRP - 2
               The Supreme Court cautioned, however, that this Second Amendment
right is “not unlimited” and does not confer a “right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.” Heller I, 554
U.S. at 626. The Court noted, for example, that courts historically have concluded
that “prohibitions on carrying concealed weapons were lawful under the Second
Amendment,” and it identified a non-exhaustive list of “presumptively lawful
regulatory measures,” including “longstanding prohibitions on the possession of
firearms by felons and the mentally ill,” laws forbidding guns in “sensitive places”
like schools and government buildings, and “conditions and qualifications” on the
commercial sale of firearms. Id.


               In 2010, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the
Supreme Court found rights secured under the Second Amendment to be
“fundamental rights” and, through the 14th Amendment, those rights apply to and
limit state and local governments’ regulations of firearms. While invalidating a
Chicago law entirely prohibiting the possession of handguns, the Court in
McDonald reiterated that a broad spectrum of gun laws remain constitutionally
permissible.


                                              B.
               In cases challenging gun restrictions, courts have adopted a two-step
inquiry,1 which “(1) asks whether the challenged law burdens conduct protected by

       1
          See, e.g., United States v. Chovan, 735 F.3d 1127, 1136–37 (9th Cir. 2013); United
States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Marzzarella, 614 F.3d 85,
89 (3d Cir. 2010); United States v. Reese, 627 F.3d 792, 800 (10th Cir. 2010).




                                           DRP - 3
the Second Amendment and (2) if so, directs courts to apply an appropriate level of
scrutiny.”2 (Footnote added).


                As to the first step of whether the challenged law “imposes a burden
on conduct falling within the Second Amendment’s guarantee,”3 this generally
turns on “whether the regulation is one of the ‘presumptively lawful regulatory
measures’ identified in Heller I[4] or whether the record includes persuasive
historical evidence establishing that the regulation at issue” is the type of
longstanding law historically understood as consistent with the Second
Amendment. Jackson v. City and County of San Francisco, 746 F.3d 953, 960 (9th
Cir. 2014) (citations omitted).5

       2
           Chovan, 735 F.3d at 1136 (citations omitted).

       3
           Chester, 628 F.3d at 680.

       4
          See Marzzarella, 614 F.3d at 91 (finding that based on the text and the structure of
Heller I, “the identified restrictions are presumptively lawful because they regulate conduct
outside the scope of the Second Amendment.”). In Heller v. District of Columbia, 670 F.3d
1244 (D.C. Cir. 2011) (Heller II), the District of Columbia Circuit Court, in upholding new
District of Columbia regulations regarding firearms, stated that Heller I “tells us ‘longstanding’
regulations are . . . presumed not to burden conduct within the scope of the Second Amendment.
. . . This is a reasonable presumption because a regulation that is ‘longstanding,’ which
necessarily means it has long been accepted by the public, is not likely to burden a constitutional
right; concomitantly the activities covered by a longstanding regulation are presumptively not
protected from regulation by the Second Amendment.” Heller II, 670 F.3d at 1253.

       5
          In examining how long a restriction has to be in existence to be considered
“longstanding” and consistent with the Second Amendment, courts have observed that the
examples Heller I itself identified as “longstanding” and constitutional date not to the Founding
Era, but only to the 20th Century. See Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015)
(“Gun laws ‘need not mirror limits that were on the books in 1791’ or 1868 to qualify as
presumptively lawful. . . . To the contrary, the laws Heller [I] itself identifies as “longstanding”
and presumptively lawful are of the same ‘20th Century vintage’ as California’s law.”); National
(Footnote continued on next page…)

                                             DRP - 4
               If a court finds at the first step that a challenged law does, in fact,
burden conduct protected by the Second Amendment, it proceeds to step two, and
applies “an appropriate form of means-end scrutiny.”6                      In determining the
appropriate level of scrutiny, courts have generally focused on the challenged
law’s burden on Second Amendment rights.7 Where the regulation at issue does
not prevent law-abiding, responsible individuals from possessing an operable
handgun in the home for self-defense, almost all of the federal circuits have held
that it should be analyzed under intermediate scrutiny.8 “Intermediate scrutiny”


(continued…)

Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700
F.3d 185, 196 (5th Cir. 2012) (NRA) (“Heller [I] considered firearm possession bans on felons
and the mentally ill to be longstanding, yet the current versions of these bans are of mid-20th
[C]entury vintage.”); United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc) (“legal
limits on the possession of firearms by the mentally ill also are of 20th Century vintage . . . [s]o
although the Justices have not established that any particular statute is valid, we do take from
Heller [I] the message that exclusions need not mirror limits that were on the books in 1791.”).

       6
         Chester, 628 F.3d at 680 (“If the challenged regulation burdens conduct that was within
the scope of the Second Amendment as historically understood, then we move to the second step
of applying an appropriate form of means-end scrutiny.”). See also Heller II, 670 F.3d at 1252
(“We ask first whether a particular provision impinges upon a right protected by the Second
Amendment; if it does, then we go on to determine whether the provision passes muster under
the appropriate level of constitutional scrutiny.”).

       7
         See NRA, 700 F.3d at 195; Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011)
(explaining that the level of applicable scrutiny should be determined by “how close the law
comes to the core of the Second Amendment right and the severity of the law’s burden on the
right”).

       8
        See Tyler v. Hillsdale County Sheriff’s Department, 837 F.3d 678 (6th Cir. 2016) (en
banc); Baer v. Lynch, 636 Fed. App’x 695 (7th Cir. 2016); National Rifle Association v.
McCraw, 719 F.3d 338 (5th Cir. 2013); Chovan; Kachalsky v. County of Westchester, 701 F.3d
81 (2d Cir. 2012); United States v. Booker, 644 F.3d 12 (1st Cir. 2011); United States v.
Masciandaro, 638 F.3d 458 (4th Cir. 2011); Heller II; Marzzarella; Reese.



                                             DRP - 5
examines whether a law is reasonably related to an important or significant
governmental interest.9


               Now to Teixeira.


                                               II.
                                                A.
               At issue in Teixeira was a zoning ordinance that required businesses
seeking to sell firearms to obtain a permit. A permit for a firearms store could not
be granted if, as relevant here, the planned firearms store would be within 500 feet
of a residentially-zoned district.


               Teixeira and two other individuals wanted to open a gun store in
Alameda County. The county planning department informed Teixeira that because
he intended to sell firearms, he would need to obtain a conditional use permit.
Teixeira was also informed that to receive a conditional use permit for his
proposed gun store, he had to comply with a zoning ordinance which, among other
things, required that businesses selling firearms be located at least 500 feet away
from schools, day care centers, liquor stores or establishments serving liquor, other
gun stores, and residentially-zoned districts.

       9
         United States v. Virginia, 518 U.S. 515, 524 (1996). Other levels are on a “rational
basis” which presumes the law is valid and asks only whether the statute is rationally related to a
legitimate state interest, City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985),
and “strict scrutiny” which asks whether the law is narrowly tailored to serve a compelling
government interest. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813
(2000).




                                            DRP - 6
             Teixeira then applied for a conditional use permit. Although staff
identified a public need for a licensed firearms dealer and determined that the
proposed use was compatible with other land uses in the area and would not
adversely affect the health or safety of persons living or working in the vicinity, it
also found that the site of the proposed gun shop did not satisfy the zoning
ordinance’s distance requirement because it was approximately 446 feet from two
residential properties in different directions.      Based on this finding, staff
recommended that the permit application be denied.


             Notwithstanding this recommendation, the county zoning board
granted Teixeira a variance from the zoning ordinance and approved his
application for a conditional use permit. A neighborhood association appealed that
decision to the board of supervisors. The board voted to sustain the appeal,
overturning the zoning board’s decision and revoking the conditional use permit.


                                         B.
             Teixeira then filed a complaint in the U.S. District Court
challenging the board of supervisors’ decision to deny him a variance and
conditional use permit. Brought on behalf of Teixeira and potential customers,
the complaint alleged that the county’s actions violated the Second Amendment
by preventing would-be customers from buying a gun and by prohibiting
Teixeira from selling firearms.




                                      DRP - 7
             The District Court dismissed the Second Amendment claim, but a
panel of judges for the Ninth Circuit revived it by a 2–1 vote. The Ninth Circuit
then elected to rehear it en banc.



             Again, Teixeira argued that the county’s zoning ordinance
unconstitutionally infringed upon the rights of prospective gun buyers.         The
Ninth Circuit rejected this argument because gun buyers have “no right to have a
gun store in a particular location . . . as long as their access is not meaningfully
constrained,” Teixeira, 873 F.3d at 680, and the county’s actions did not
meaningfully constrain access to guns. The court noted that there were at least
ten gun shops already operating in Alameda County, including a sporting goods
store located just 600 feet from Teixeira’s planned retail establishment. Because
county residents could freely purchase firearms within the county, the court
concluded that Teixeira had not plausibly alleged that the county’s ordinance
impeded any resident of Alameda County who wished to purchase a firearm
from doing so. The court noted that it did not need to define the precise scope of
any such acquisition right under the Second Amendment to resolve the case
because, whatever the scope of that right, Teixeira failed to state a claim that the
ordinance impeded Alameda County residents from acquiring firearms.



             The Ninth Circuit then turned to Teixeira’s main argument that the
county’s zoning ordinance infringed on his Second Amendment right to sell
firearms. He argued that even if there was a gun store on every square block in
unincorporated Alameda County and, therefore, prospective gun purchasers
could buy guns with exceeding ease, he would still have a right to establish his

                                     DRP - 8
own gun store somewhere in the jurisdiction.          He alleged that the zoning
ordinance infringed on that right by making it virtually impossible to open a new
gun store in unincorporated Alameda County. The court rejected this claim as
well, finding that the Second Amendment does not confer an independent right
to sell firearms.



             The court began its analysis by quoting Heller I, the U.S. Supreme
Court decision establishing an individual right to bear arms, which stated that
“[n]othing in our opinion should be taken to cast doubt on . . . laws imposing
conditions and qualifications on the commercial sale of arms . . . [which are] . . .
presumptively lawful regulatory measures.” Teixeira, 873 F.3d at 682 (quoting
Heller I, 554 U.S. at 626-27). Heller I’s assurance that laws imposing conditions
and qualifications on the commercial sale of firearms are presumptively lawful
made the court reject Teixeira’s claim that retail establishments can assert an
independent, freestanding right to sell firearms under the Second Amendment.



             Nonetheless, the Ninth Circuit went on to conduct “a full textual and
historical review” of the Second Amendment.           Teixeira, 873 F.3d at 683.
Starting with its text, the Ninth Circuit concluded nothing in the specific
language of the Second Amendment suggests that sellers fall within the scope of
its protection. In its historical review, the court analyzed the 1689 English Bill of
Rights, the precursor to our Second Amendment, as well as William Blackstone’s
influential commentaries on English law. It found that those documents all framed
the right to bear arms as one held by individuals, with no attendant right to engage
in gun commerce. It went on to find that so did colonial laws in America – which,

                                      DRP - 9
like the Second Amendment itself, were designed to preserve state militias, not to
safeguard a freewheeling arms trade. Moreover, colonial governments routinely
regulated the commercial sale of firearms. The court went on to point out that this
was consistent with the Fourth Circuit’s determination in its unpublished decision
in United States v. Chafin, 423 Fed. App’x 342, 344 (4th Cir. 2011), that no
historical authority “suggests that, at the time of its ratification, the Second
Amendment was understood to protect an individual’s right to sell a firearm.”
(Emphasis in original.)



            After this lengthy historical analysis, the Ninth Circuit concluded that
at the time of its ratification, the Second Amendment was not understood to create
a commercial entitlement to sell guns if the right of the people to obtain and bear
arms was not compromised. The court rejected an analogy to the First Amendment
for booksellers because bookstores and similar retailers that sell and distribute
various media, unlike gun sellers, are themselves engaged in conduct directly
protected by the First Amendment. It held that Teixeira could not state a Second
Amendment claim based solely on the ordinance’s restriction on his ability to sell
firearms.



            The Ninth Circuit went on to hold, though, that “the core Second
Amendment right to keep and bear arms for self-defense wouldn’t mean much
without the ability to acquire arms.”      Teixeira, 873 F.3d at 677 (citations
omitted). It recognized that firearms dealers may assert that right on behalf of
their potential customers. The court explained that Teixeira had not alleged that
the inability to open a new firearms store interfered with the ability of Alameda

                                    DRP - 10
County residents to acquire firearms. Notably, the court recounted that evidence
established that without the new gun store, Alameda County residents may freely
purchase firearms within the county, given that the county was already home to
ten gun stores, including one that stood 600 feet away from the proposed site of
the new store. Because Teixeira and his partners could not show that the zoning
ordinance burdened county residents’ right to acquire firearms, the court
declined to determine the precise scope of the right to acquire firearms and the
appropriate level of review to analyze claims of a deprivation of that right.



             Furthermore, in explaining its ruling, the Ninth Circuit distinguished
the Alameda County ordinance from the law at issue in Ezell v. City of Chicago,
651 F.3d 684 (7th Cir. 2011), the case relied on by The Gun Range, because the
Chicago ordinance effectively barring firing ranges likely burdened the Second
Amendment’s core right to possess a firearm for self-defense. These cases differed
because, the Ninth Circuit stated, the Chicago ordinance effectively precluded
nearly any shooting range from operating within the city’s boundaries and, thus,
severely limited the city residents’ Second Amendment right to maintain firearm
proficiency. In Teixeira, the court reasoned, Alameda County residents had many
available, local options to exercise their right to acquire firearms without the new
store. I would adopt the reasoning of the Ninth Circuit in Teixeira that led to its
holding that the Second Amendment does not independently protect a proprietor’s
right to sell firearms, as well as its holding that for a firearms seller to make out a
derivative claim on behalf of gun owners, there has to be a showing that
prospective gun owners’ access to guns was impeded by the ordinance.




                                      DRP - 11
              Now to the facts of this case.


                                            III.
                                             A.
              The Gun Range applied to the Department of Licenses & Inspections
(L&I) to add the use of “gun sales” to the existing “gun range.” Gun shops10 are
permitted in 1-3 zoning districts, and the ICMX and 1-2 zoning districts by special
exception as long as they are not within 500 feet of a residential district. New
Zoning Code, CODE § 14-603(13)(b)(.1)(.c).                However, a gun shop is not
permitted in a CMX-2 zoning district. L&I denied the application because a “gun
shop” was not permitted in a CMX-2 commercial district and, even if the use was
permitted, it still would be prohibited within 500 feet of a residential district.


              The Gun Range presented two witnesses: the L&I examiner who
explained why the application was denied and Yuri Zalzman, a principal of The
Gun Range, who discussed his existing business and his efforts to open a gun shop.
The Gun Range also submitted a “packet” of documents to the zoning board.
Those documents included a map reflecting that the portions of the 1-3 district that
is open to gun shops, taking into consideration the residential restriction.                It
showed that 3.74% of the city, or about 3,400 acres, were open to gun shops. It did
not provide any evidence about ICMX and 1-2 zoning districts where gun shops
were permitted by special exception.

       10
          The Zoning Code defines a “gun shop” as a “retail sales business engaged in selling,
leasing, purchasing, or lending of guns, firearms, or ammunition.” New Zoning Code, CODE §
14-601(6)(c)(2).




                                         DRP - 12
             At the hearing, The Gun Range admitted that there were a number of
gun shops already operating in the city. The Gun Range’s counsel conceded there
were “about six or seven” shooting ranges that also sold guns. Mr. Zalzman also
testified that there were other, stand-alone gun shops without shooting ranges in
the city. He testified that there were “a couple” of such shops. Including both gun
shops with an adjoining shooting range and stand-alone gun shops, there were
around ten gun shops in the city operating at the time of the hearing.


             The Gun Range also presented no evidence that it could not build a
gun shop elsewhere in the City in compliance with the City’s zoning laws or even
that it faced any difficulties in doing so. No gun owner discussed the impact of the
city’s zoning laws on his ability to buy a gun. The Board did not preclude The Gun
Range from offering any evidence.


                                         B.
             Constitutional challenges are of two kinds: facial challenges or as-
applied challenges. Lehman v. Pennsylvania State Police, 839 A.2d 265, 275 (Pa.
2003). “[A]n as-applied attack ... does not contend that a law is unconstitutional as
written but that its application to a particular person under particular circumstances
deprived that person of a constitutional right.” Weissenberger v. Chester County
Board of Assessment Appeals, 62 A.3d 501, 505 (Pa. Cmwlth. 2013) (quoting
United States v. Mitchell, 652 F.3d 387, 405 (3d Cir. 2011)).


             While an issue must be raised before an administrative agency to be
preserved for appellate review, Pa.R.A.P. 1551(a), an exception to this rule exists



                                      DRP - 13
for a facial challenge to the constitutionality of a statute. “In a facial challenge, a
party is not required to exhaust administrative remedies because ‘the determination
of the constitutionality of enabling legislation is not a function of the
administrative agencies thus enabled.’ Borough of Green Tree v. Bd. of Prop.
Assessments, 459 Pa. 268, 328 A.2d 819, 825 (1974).               Accordingly, facial
challenges to a statute’s constitutionality need not be raised before the
administrative tribunal to be reviewed by an appellate court . . . .” Lehman, 839
A.2d at 275.



               While facial challenges can be raised at any time, as-applied
constitutional challenges must be raised before the agency because, rather than the
constitutionality of the statute itself, the issue is how the constitutional provision,
as applied to the individual making the challenge, has an unconstitutional result.
Lehman.


               In this case, The Gun Range made a facial as well as an “as-applied”
challenge. In its facial challenge, it contended that the Second Amendment gives it
the right to sell guns in any zone that permits anything to be sold. For the same
reasoning set forth in Teixeira, I would hold that the Second Amendment does not
give a person the right to sell guns.


               In its “as-applied” challenge, it argues that the zoning restrictions
here unreasonably burden a gun owner’s right to acquire guns by limiting where
gun shops could be located. As the advancing party, The Gun Range holds the
evidentiary burden. That evidentiary burden had to be met before the Zoning


                                        DRP - 14
Board. Lehman. Before the Zoning Board, The Gun Range did not contend that
anyone’s right to acquire weapons was unduly restricted, only that The Gun
Range’s right to sell guns was unduly restricted, a right not protected by the
Second Amendment.


             However, on appeal to us, it does make an argument that the ten gun
shops that its owner said existed in Philadelphia are not enough to serve those
persons who desire to purchase guns. Other than the argument, there is no
evidence that ten stores are inadequate to meet the needs of those in Philadelphia
who want to purchase guns. Absent such a showing that existing gun shops in
Philadelphia, other nearby gun shops located outside of Philadelphia, and gun
shows are insufficient to serve those in Philadelphia who want to buy weapons, a
derivative Second Amendment claim has not been established.


             Because nothing in this case showed that the City’s ordinance in any
way violated anyone’s Second Amendment right by impeding a city resident who
wished to purchase a firearm from doing so, I would hold that The Gun Range did
not make out its “as-applied” challenge.


                                           C.
             As to its argument that the zoning restrictions violate the Pennsylvania
Constitution, The Gun Range just lists the Pennsylvania Constitutional provisions
that it suggests apply and then concludes that the zoning restrictions violate those
provisions. Its entire argument regarding the state constitution is as follows:




                                      DRP - 15
                  Additionally, these rights are specifically protected by
                  the Pennsylvania Constitution. Pursuant to Pa. Const.
                  art. I, § 1, citizens of the Commonwealth have an
                  inherent right of “acquiring, possessing and protecting
                  property.” Further, pursuant to Pa. Const. art. I, § 21,
                  “[T]he right of the citizens to bear arms in defense of
                  themselves and the State shall not be questioned,” which
                  is made inviolate by § 25.[11] By attempting to limit the
                  ownership and sale of guns within the City of
                  Philadelphia, the Code violates these inherent rights of
                  citizens of the Commonwealth and the Pennsylvania
                  Constitution and therefore, this portion of the Code is
                  unconstitutional.


(The Gun Range’s Brief at 30) (footnote added). This argument does not offer a
different methodology to be used in interpreting article 1, section 21 of the
Pennsylvania Constitution than the one adopted by the United States Supreme
Court in Heller I, used to determine whether a state action unconstitutionally
infringed on a gun owner’s right to self-defense. All that it does is set forth a bare
conclusion that those provisions are violated.12 Since Heller I, the Superior Court

        11
             Article 1, section 25 of the Pennsylvania Constitution provides:

                  To guard against transgressions of the high powers which we have
                  delegated, we declare that everything in this article is excepted out
                  of the general powers of government and shall forever remain
                  inviolate.

Pa. Const. art I, § 25.

        12
             Pa.R.A.P. 2119(a) provides:

                  The argument shall be divided into as many parts as there are
                  questions to be argued; and shall have at the head of each part—in
                  distinctive type or in type distinctively displayed—the particular
                  point treated therein, followed by such discussion and citation of
                  authorities as are deemed pertinent.
(Footnote continued on next page…)

                                              DRP - 16
has used that analysis in deciding whether a state gun restriction violated our
Constitution. See Commonwealth v. McKown, 79 A.3d 678, 687 (Pa. Super.
2013).


              Following the scholarly and well-reasoned opinion of the Ninth
Circuit in Teixeira that strictly followed the methodology that the Supreme Court
set forth in Heller I, I would not remand and would hold that The Gun Range has
not made out that the regulation here infringes upon anyone’s Second Amendment
rights, or any right under the Pennsylvania Constitution, and would affirm the trial
court.


              Accordingly, I respectfully dissent.



                                            ____________________________________
                                            DAN PELLEGRINI, Senior Judge




(continued…)


A mere claim of unconstitutionality, without more, cannot be addressed. The Gun Range has
simply failed to explain to the Court, as required by Pa.R.A.P. 2119(a), how the Code infringes
upon the individual rights guaranteed by article I of the Pennsylvania Constitution. See Bruce L.
Rothrock Charitable Foundation v. Zoning Hearing Board of Whitehall Township, 651 A.2d
587, n.9 (Pa. Cmwlth. 1994). We do not consider the article I claims because they have not been
presented adequately to the Court. Wert v. Department of Transportation, Bureau of Driver
Licensing, 821 A.2d 182, 184 (Pa. Cmwlth. 2003).



                                           DRP - 17
