Firearm Owners Against Crime-Institute for Legislative and Legal Educational Action

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Firearm Owners Against :

Crime-Institute for Legislative and :

Legal Educational Action, :

Shot Tec, LLC and Grant Schmidt, :

Appellants :

:

v. : No. 765 C.D. 2024

:

Lower Merion Township : Argued: December 11, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA McCULLOUGH, Judge

HONORABLE MICHAEL WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION BY JUDGE WOLF FILED: October 9, 2025

Firearm Owners Against Crime – Institute for Legislative and Legal

Educational Action (FOAC), Shot Tec, LLC, and Grant Schmidt (Appellants) appeal

from the May 28, 2024 decision of the Montgomery County Court of Common Pleas

(trial court). The trial court granted in part and denied in part Appellants’ motion to

permanently enjoin enforcement of Lower Merion Township’s (Township)

Ordinance 4267. The ordinance amended the Township’s zoning ordinance to limit

businesses requiring a federal firearms license (FFL) to operating only by

conditional use, in only four zoning districts, subject to 12 conditional use criteria.

The trial court enjoined application of most of those criteria because they regulate

firearms, not zoning, and are thus preempted by Section 6120 of the Pennsylvania

Uniform Firearms Act of 1995 (UFA), 18 Pa.C.S. § 6120.1 We conclude that the

remaining criteria are also preempted because they are firearms regulations, not

zoning regulations. Accordingly, we affirm in part and reverse in part the trial

court’s order.

The facts are undisputed. Appellant Schmidt is the sole member of

Shot Tec, a Pennsylvania LLC. Schmidt and Shot Tec are members of FOAC. Shot

Tec’s principal business is the commercial sale, transfer, storage, and destruction of

firearms. It also sells simulated-fire training with firearms.

In May 2022, Shot Tec began operating its business at 246 Bala Avenue

in the Township. At that time, Shot Tec held a Type-07 FFL issued by the Federal

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) which permits the

manufacture and/or sale of firearms and ammunition. It also held a Pennsylvania

License to Sell Firearms issued by the Montgomery County Sheriff.

In February 2024, Shot Tec’s landlord at 246 Bala Avenue terminated

its lease effective May 31, 2024. In March 2024, Shot Tec entered into a new lease

for the property at 230 Rock Hill Road in the Township, contingent upon Shot Tec

obtaining all necessary zoning permits to operate at that location. 230 Rock Hill

Road is located in the zoning district identified as “RHR — Rock Hill Road District”

(RHR District). Under the Township’s current zoning ordinance the RHR District

1

Section 6120 of the UFA provides, in relevant part:

(a) General rule.--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.

2

permits FFLs by conditional use. To move to its newly leased location, Shot Tec

was required to apply to the ATF for a new FFL specific to the new address.

In April 2023, about a year before Shot Tec’s first lease was terminated,

the Township enacted Ordinance 4267. It defines the term “Federal Firearms

Licensee”2 and restricts that use to four zoning districts by conditional use only,

including the RHR District—where Shot Tec’s new lease is located. O.R., Item No.

12, Ex. B. Section 5 of Ordinance 4267 amends the Township’s zoning ordinance

with the following legislative purpose and conditions for FFLs:

A. Statement of legislative findings and intent. FFLs present

unique zoning challenges for a multitude of reasons

including but not limited to the dichotomy of firearms

being both constitutionally and statutory [sic] protected

while also being classified by Pennsylvania’s penal code

as dangerous weapons (e.g., 18 Pa.C.S. § 913). Firearms,

ammunitions, and explosive devices, which are all the

products or wares of FFLs, are also the target of thefts and

straw purchases, and used as the instrumentality of crimes.

Consequently, the business of manufacturing, selling or

dealing, shipping, receiving, or importing firearms,

ammunition, and/or destructive devices is always

incompatible with the residential use of properties and

surrounding residential areas, as well as pedestrian-

oriented retail districts, as identified in the Township’s

Comprehensive Plan. This type of business, however, may

be compatible with other zoning districts if certain

standards are met which will harmonize this particular use

with the uses permitted within those other districts. In

creating these standards, the Board of Commissioners

looked to (1) current federal and state regulations relating

2

“A person of at least twenty-one (21) years of age or a legal entity, duly licensed by the

[ATF], engaged in the business of manufacturing, selling or dealing, shipping, receiving, or

importing federally regulated firearms, ammunition, or destructive devices.” Original Record

(O.R.), Item No. 12 (Stipulation), Ex. B

3

to firearms, ammunitions, and explosive devices; (2)

industry-specific recommended best practices for FFLs,

and (3) standards applied at the federal, state, and local

levels, including but not limited to zoning regulations, to

other uses, such as pharmaceutical-providers and banks,

which are analogous to FFLs because they involve the

transacting of other similarly challenging commodities.

....

C. Conditional use standards.

(1) No FFL shall be permitted to operate in or on the

grounds of, or within 1,000 feet of the grounds of, a public,

parochial or private school, unless the FFL can

demonstrate compliance with 18 U.S.C. § 922(q), as

amended.

(2) An FFL shall produce and keep on file with the

Township a current copy of the applicable license or

licenses issued by the federal Bureau of Alcohol, Tobacco,

Firearms, and Explosives, as well as any other required

state, county, municipal, or administrative licenses or

registrations including but not limited to any required by

the Pennsylvania State Police.

(3) An FFL shall identify any fictious name under which

the FFL will operate, the street and mailing address for the

business, and the business’s reasonable hours of operation.

(4) For any doors and windows which are directly

accessible from any public space, such as a street, alley or

sidewalk, or from any common area, such as a lobby or

shared hallway, an FFL shall install and maintain smash-

resistant doors and windows.

(5) An FFL shall install and maintain a general alarm

system which provides glass protection, interior motion

sensors, door and access panel contact monitoring, and a

panic button.

(6) An FFL shall install and maintain an internal video

surveillance system.

4

(7) An FFL shall provide and maintain an operational

safety plan demonstrating compliance with all applicable

laws and regulations prohibiting the sale of firearms,

ammunition, or destructive devices to certain individuals

including but limited [sic] to those restrictions contained

in 18 U.S.C. § 922(b), as amended.

(8) An FFL shall provide and maintain an operational

safety plan demonstrating compliance with all applicable

laws and regulations prohibiting the selling, transferring,

or otherwise disposing of a firearm without conducting a

National Instant Criminal Background Check System

(NICS) background check for every transfer of a firearm

to a nonlicensee unless the transferee qualifies for one of

the exceptions listed in 18 U.S.C. § 922(t), as amended.

(9) An FFL shall provide and maintain an operational

safety plan - demonstrating compliance with all applicable

laws and regulations prohibiting the selling, transferring,

or otherwise disposing of a firearm to a person who not

[sic] the actual buyer or transferee of the subject firearm;

is otherwise prohibited by law from receiving or

possessing firearms or ammunition; and/or is not a lawful

resident of Pennsylvania.

(10) An FFL shall provide and maintain an operational

safety plan to ensure that all required firearms transaction

records required by federal and state law are completed for

every transfer of a firearm to a non-licensee.

(11) An FFL shall provide and maintain an operational

safety plan to ensure that each missing, lost, or stolen

firearm from the FFL’s inventory or collection is reported

to the federal Bureau of Alcohol, Tobacco, Firearms, and

Explosives within 48 hours of discovery of the loss or

theft.

(12) An FFL shall provide and maintain an operational

safety plan to ensure compliance with all applicable laws

and regulations related to record retention including but

not limited to 27 C.F.R. § 478.129, as amended.

5

O.R., Item No. 12, Ex. B.

In July 2023, Appellants filed in the trial court a complaint for

declaratory and injunctive relief and an application for preliminary injunction

against enforcement of the ordinance. They argued that the ordinance is preempted

by state firearms law and expressly disclaimed any constitutional challenge to the

ordinance. After a May 7, 2024 hearing, the trial court issued a decision granting in

part Appellants’ request for permanent injunctive relief. The trial court enjoined

enforcement of conditions 4 through 12 in Section 5(C) of the ordinance, as well as

the portion of condition 3 relating to “the business’s reasonable hours of operation.”

Trial Court Order, May 28, 2024, at 6. The trial court left the remaining conditions—

i.e., conditions 1 and 2, and condition 3 insofar as it relates to fictitious names and

addresses—and the ordinance’s restriction to certain districts intact.

In an August 27, 2024 opinion pursuant to Pa.R.A.P. 1925(a), the trial

court explained that there “is no precedential authority in this Commonwealth on the

issue of whether [the UFA] preempts a county, municipality, or township from

enacting a zoning ordinance that regulates the location of where an FFL may sell

firearms.” Trial Court Op. at 11. The trial court reviewed the law of preemption in

non-firearm-related zoning cases, noting that we “distinguish between local

ordinances that regulate the method in which a particular activity is conducted (often

preempted), from zoning ordinances that constitute typical land use controls, i.e.,

location of uses (not preempted).” Id. at 15 (quoting Good v. Zoning Hearing Bd. of

Heidelberg Twp., 967 A.2d 421, 429 (Pa. Cmwlth. 2009)) (emphasis in original).

Turning to the firearms context, the trial court found persuasive our unreported

decision in The Gun Range, LLC v. City of Philadelphia (Pa. Cmwlth., No. 1529

C.D. 2016, filed May 7, 2018), 2018 WL 2090303, appeal denied, 196 A.3d 20 (Pa.

6

2018).3 In Gun Range, we upheld a zoning ordinance limiting gun shops to one

district by right and two others by special exception as not preempted by the UFA.

Trial Court Op. at 16-17. The trial court found the location limits in the instant

ordinance similar to those we upheld in Gun Range and concluded they are not

preempted. Regarding the three conditions it upheld, the trial court reasoned:

Section 5.C.(1), which precludes an FFL from operating

in or on the grounds of, or within 1,000 feet of the grounds

or [sic], a public, parochial or private school, unless the

FFL can demonstrate compliance with 18 U.S.C. § 922(q),

as amended, is similar to the provision of the Ordinance

that restricts FFLs to four (4) zoning districts because they

both regulate location rather than the operations of FFLs.

Section 5.C.(2) and the phrase “An FFL shall identify any

fictitious name under which the FFL will operate, the

street and mailing address for the business” set forth at

Section 5.C.(3) are permissible in that these are general

business requirements.

Trial Court Op. at 19. Appellants appealed to this Court.4

On appeal,5 Appellants argue that the trial court erred in enjoining only

3

Unreported opinions of this Court filed after January 15, 2008, may be cited for their

persuasive value. Pa.R.A.P. 126(b); 210 Pa. Code § 69.414(a).

4

The trial court issued its decision three days before Shot Tec’s first lease ended. In a

declaration filed with this Court, Schmidt states Shot Tec moved to its new location but has not

yet applied for or received an applicable FFL because doing so requires that it aver in its

application to the ATF that the FFL use in not prohibited by state or local law. Appellants

understand this to mean that they must secure conditional use approval before applying for a new

FFL, which is required because of the change in business location. Schmidt declares that since the

trial court’s decision, Shot Tec has been operating its firearm training business without an FFL,

thereby significantly decreasing its revenue because it cannot sell, transfer, store, or destroy

firearms.

5

“In reviewing a grant or denial of a permanent injunction, which will turn on whether the

lower court properly found that the party seeking the injunction established a clear right to relief

as a matter of law, our standard of review of a question of law is de novo, and our scope of review

(Footnote continued on next page…)

7

part of the ordinance, and should have done so in toto because even conditions 1

through 3 are preempted by the UFA. Appellants focus first on express preemption

under Section 6120 of the UFA, which prohibits municipalities from regulating “in

any manner” the “transfer” of firearms. They claim that the ordinance clearly

regulates the ownership and transfer of firearms, which is impermissible under the

language of the UFA and our interpreting caselaw. More specifically, Appellants

note that the trial court upheld the ordinance’s location restrictions, limiting FFL

businesses to four districts and allowing the Township to continue to impose

conditions 1 through 3. Appellants argue these conditions—which restrict the

location of firearms-related businesses and require them to produce documents, like

licensure and contact or business name information—effectively regulate the

business of transferring firearms, which is expressly preempted. In further support

for express preemption, Appellants cite Section 2962(g) of the Home Rule Charter

and Optional Plans Law,6 which they argue preempts the ordinance because it

obviously deals with the regulation of firearm transfer.

Appellants also invoke field preemption. They discuss the General

Assembly’s firearms-related enactments and related legislative history, noting

statements by legislators which Appellants perceive as confirming that the General

Assembly intends to entirely displace municipalities from regulating firearms.

Appellants note this Court’s statement that “the interpretative statements made

in Ortiz [ v. Commonwealth, 681 A.2d 152 (Pa. 1996),] and [Commonwealth v.]

is plenary.” Eagleview Corp. Ctr. Ass’n v. Citadel Fed. Credit Union, 243 A.3d 764, 770 n.1 (Pa.

Cmwlth. 2020).

6

“A municipality shall not enact any ordinance or take any other action dealing with the

regulation of the transfer, ownership, transportation or possession of firearms.” 53 Pa.C.S.

§ 2962(g).

8

Hicks[, 208 A.3d 916 (Pa. 2019)] . . . , on balance, indicate that the General

Assembly clearly evidenced its intent to preempt and implicate the doctrine of field

preemption.” Appellants’ Br. at 27 (quoting Firearm Owners Against Crime v. City

of Pittsburgh, 276 A.3d 878, 893 (Pa. Cmwlth. 2022) (internal quotation marks

omitted) (hereinafter FOAC v. Pittsburgh)).

Appellants argue they meet the permanent injunction standard7 because

the Township’s enactment of the ordinance contrary to state law is a per se

irreparable injury to Appellants, for which monetary damages will not compensate

them. They add that the balancing of equities favors an injunction because the

Township cannot claim harm if the ordinance is enjoined, since it is unlawful and

the General Assembly has already weighed the equities in prohibiting municipalities

from enacting such ordinances. They ask that we enjoin the ordinance in toto

because there is no practical way to sever the conditional use aspects of it.

The Township appears to concede that the trial court properly enjoined

conditions 4-12. It does not seek reversal in part or make arguments in the nature of

a cross-appeal. In response to Appellants’ arguments against the remaining three

conditions, the Township concedes that Section 6120 of the UFA, as interpreted by

our courts, expressly preempts local firearms regulation. But it distinguishes

between ordinances which directly regulate firearms, which are preempted, and

those that only incidentally relate to firearms, which are not. In support, the

Township cites Gun Range, where we upheld the ordinance as a proper exercise of

the zoning power, and Gun Owners of America, Inc. v. City of Philadelphia, 311

7

To warrant a permanent injunction, a litigant “must establish that his right to relief is clear,

that an injunction is necessary to avoid an injury that cannot be compensated by damages, and that

greater injury will result from refusing rather than granting the relief requested.” Kuznik v.

Westmoreland Cnty. Bd. of Comm’rs, 902 A.2d 476, 489 (Pa. 2006).

9

A.3d 72 (Pa. Cmwlth. 2024) (en banc), appeal granted, 333 A.3d 1256 (Pa. 2025),

where we upheld an ordinance regulating components that were not themselves

firearms. The Township reads our holding in Gun Owners of America as narrowing

the broader preclusion statement we made in FOAC v. Pittsburgh. The Township

claims the ordinance at issue here simply zones FFL-dependent business into

compatible zoning districts and imposes reasonable, non-burdensome conditional

use criteria, which are traditional local land use controls not specific to firearms. It

argues that other businesses—medical marijuana dispensaries, animal hospitals, and

funeral homes—are subject to similar requirements. The Township asks us to

uphold the trial court’s decision permitting conditions 1 through 3 to remain

applicable.

In reply, Appellants distinguish Gun Range, since the ordinance in that

case permitted gun shops by right in one district, whereas the instant ordinance

operates only by conditional use. Appellants ask that the Court overrule Gun

Owners of America to the extent it is inconsistent with our broader field preemption

statement in FOAC v. Pittsburgh. Appellants discuss our Supreme Court’s recent

decision in Crawford v. Commonwealth, 326 A.3d 850, 860 (Pa. 2024).8 They note

that although the question of field preemption was not before the Supreme Court in

that case, the court’s rationale strongly suggests field preemption.

“As a general matter, there are three types of preemption: (1) express

preemption, where ‘the state enactment contains language specifically prohibiting

local authority over the subject matter;’ (2) conflict preemption, which ‘acts to

preempt any local law that contradicts or contravenes state law;’ and (3) field

preemption, where ‘the state regulatory scheme so completely occupies the field that

8

Crawford was decided after Appellants filed their principal appellate brief in this case.

Appellants discuss Crawford in their reply brief only.

10

it appears the General Assembly did not intend for supplementation by local

regulations.’” Crawford, 326 A.3d at 861 n.12 (quoting Berner v. Montour Twp.

Zoning Hr’g. Bd., 217 A.3d 238, 247 & n.11 (Pa. 2019)). Because express

preemption may not be absolute, we examine “the particular wording of th[e]

provision” to determine the scope of the preemption. Huntley & Huntley, Inc. v.

Borough Council of Borough of Oakmont, 964 A.2d 855, 863 (Pa. 2009).

We agree with Appellants that state law expressly preempts the

ordinance. Per statute, municipalities may not “in any manner regulate the lawful

ownership, possession, [or] transfer . . . of firearms,” 18 Pa.C.S. § 6120, nor may

they “enact any ordinance . . . dealing with the regulation of the transfer, ownership,

transportation or possession of firearms,” 53 Pa.C.S. § 2962(g). The Township’s

ordinance here is clearly intended to regulate the sale of firearms, rather than to

regulate zoning. It is a gun regulation, not a zoning regulation. The trial court

recognized as much when it found most of the conditional use criteria unlawful

because they regulate “the method in which [the sale of firearms] is conducted.”

Trial Court Op. at 15

We decline to sever conditions 1 through 3 from the blatantly firearm-

focused nature of the ordinance overall. Condition 1 prohibits FFL businesses

within 1,000 feet of a school. That condition appears to be directly lifted from the

Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), a federal gun

regulation. See United States v. Lopez, 514 U.S. 549, 551 (1995). Conditions 2 and

3 are focused solely on compliance with firearms regulation. Even the parts of those

conditions that are stated in terms of neutral zoning regulation are part and parcel of

the ordinance’s intent overall, which is to regulate guns and gun transfers. They are

11

not separable from that clear intent.9 The Township asserts that other industries are

subject to similar requirements for proof of licensure, but the extent and language of

preemption in non-firearm industries is not before us.

Our decision in Gun Range is useful because it is readily distinguished.

There, the ordinance limited the zoning districts in which gun shops could be

located. When challenged, the municipality claimed the ordinance was permissible

as a zoning regulation applied to firearms-related businesses and was not preempted.

We held that “because the [zoning ordinance] 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 [municipality], its zoning regulations as to the retail sales

of firearms are not preempted by [the UFA].” Gun Range, slip op. at 13. Here, the

ordinance does not merely locate FFL businesses. It restricts how they may operate

and conduct their business. Thus, on the same rationale as in Gun Range, which we

find persuasive, this ordinance is not a permissible zoning regulation, but a

preempted gun regulation.

Accordingly, we hold that the remaining conditional use criteria are

expressly preempted and thus unenforceable, and the trial court erred in denying

Appellants’ request to permanently enjoin the ordinance in toto.10 Given that no

lawful conditional use criteria remain, it would not be reasonable going forward for

the Township to require conditional use applications, charge conditional use fees, or

9

Although Appellants rely on the nonseverability of the ordinance and dispute the import of

the severability clause in Section 8 of the ordinance, see Appellants’ Br. at 5-6, we do not base our

decision on severability. We conclude that regardless of whether the remaining provisions of the

ordinance could be severed, we decline to sever them in our discretion based on their connection

to the overall scheme of the ordinance.

10

Given this disposition, which is dispositive, we need not consider Appellants’ arguments

regarding field preemption or their invitation to revisit our reported en banc decision in Gun

Owners of America, which is now on appeal before the Pennsylvania Supreme Court.

12

otherwise engage in the conditional use process. Accordingly, rather than judicially

rewrite the ordinance to allow FFL businesses in the four specified districts by right,

rather than by conditional use, we will reverse the trial court’s disposition, such that

application of Ordinance 4267 will be enjoined in its entirety.

For the foregoing reasons, we affirm in part the trial court’s order, to

the extent that it enjoined Ordinance 4267 in part. We reverse the trial court’s order

to the extent that it declined to permanently enjoin the ordinance in its entirety.

_____________________________________

MATTHEW S. WOLF, Judge

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Firearm Owners Against :

Crime-Institute for Legislative and :

Legal Educational Action, :

Shot Tec, LLC and Grant Schmidt, :

Appellants :

:

v. : No. 765 C.D. 2024

:

Lower Merion Township :

ORDER

AND NOW, this 9th day of October 2025, the May 28, 2024 decision

of the Montgomery County Court of Common Pleas is AFFIRMED in part and

REVERSED in part in accordance with the accompanying Opinion.

_____________________________________

MATTHEW S. WOLF, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Firearm Owners Against :

Crime-Institute for Legislative :

and Legal Educational Action, :

Shot Tec, LLC and Grant Schmidt, :

:

Appellants :

:

v. : No. 765 C.D. 2024

: Argued: December 11, 2024

Lower Merion Township :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MATTHEW S. WOLF, Judge

DISSENTING OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: October 9, 2025

By concluding that the entirety of Ordinance No. 4267 (Ordinance) of Lower

Merion Township (Township)1 is preempted by state law, the Majority strips the

Township of its traditional power over land use and zoning. Because I would

construe the Ordinance in a reasonable manner that preserves the validity of the

Ordinance and gives effect to the Township’s land use and zoning power, I

respectfully dissent.

It is well settled that “a municipality cannot exercise powers in a manner that

violates basic preemption principles,” which dictate that if the General Assembly

1

Lower Merion Twp., Montgomery Cnty., Pa., Ordinance No. 4267 (Apr. 19, 2023).

has expressly, by conflict, or by field preempted an area of law, municipalities are

without power to regulate in that area.2 Crawford v. Commonwealth, 326 A.2d 850,

858-61 & n.12 (Pa. 2024); see also Devlin v. City of Philadelphia, 862 A.2d 1234,

1242 (Pa. 2004). It is equally established, however, that Pennsylvania courts

“traditionally give[] local zoning power great play” and are “reluctant to strike down

a local ordinance in cases where a state statute does not directly and inherently

conflict with the zoning power.” Council of Middletown Twp. v. Benham, 523 A.2d

311, 315 (Pa. 1987); see, e.g., Hoffman Mining Co., Inc. v. Zoning Hearing Bd. of

Adams Twp., 32 A.3d 587, 600 (Pa. 2011) (holding that the Supreme Court “will not

infer that an express preemption clause encompasses the traditionally local concerns

of land use and zoning when the General Assembly has not clearly incorporated

those concerns into the clause”); Good v. Zoning Hearing Bd. of Heidelberg Twp.,

967 A.2d 421, 429 (Pa. Cmwlth. 2009) (upholding the validity of a zoning ordinance

because the “[l]ocal regulation of the location (as opposed to the method) of dead

animal disposal is not expressly prohibited by the preemption provision in the

Domestic Animal Law[, 3 Pa.C.S. § 2352(a)]”). Accordingly, in the face of a

preemption challenge, “[z]oning ordinances should be construed in a sensible

manner to preserve their validity.” Council of Middletown Twp., 523 A.2d at 317.

2

As recently explained by our Supreme Court,

there are three types of preemption: (1) express preemption, where “the state

enactment contains language specifically prohibiting local authority over the

subject matter;” (2) conflict preemption, which “acts to preempt any local law that

contradicts or contravenes state law;” and (3) field preemption, where “the state

regulatory scheme so completely occupies the field that it appears the General

Assembly did not intend for supplementation by local regulations.”

Crawford v. Commonwealth, 326 A.2d 850, 861 n.12 (Pa. 2024)

RCJ - 2

The preemptive effects of two statutes are at issue here, which are nearly

identical in language. Section 6120(a) of the Pennsylvania Uniform Firearms Act

of 1995 (UFA) commands that “[n]o 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).

Similarly, Section 2962(g) of the Home Rule Charter and Optional Plans Law

(Home Rule Law) directs that “[a] municipality shall not enact any ordinance or take

any other action dealing with the regulation of the transfer, ownership, transportation

or possession of firearms.” 53 Pa.C.S. § 2962(g). Taken together, “[t]hese

provisions, generally speaking, prohibit local governments from enacting or

enforcing ordinances that regulate the ownership, transportation, possession, or

transfer of firearms.” Crawford, 326 A.3d at 856. However, these provisions do not

prohibit local governments from enacting or enforcing an ordinance that “does not

regulate firearms per se.” See Gun Owners of Am., Inc. v. City of Philadelphia, 311

A.3d 72, 83-84 (Pa. Cmwlth. 2024), petition for allowance of appeal granted, (Pa.,

No. 9 EAP 2025, filed Feb. 18, 2025). Likewise, these provisions do not prohibit

local governments from enacting or enforcing a zoning ordinance that regulates the

location of businesses dealing in firearms. See Gun Range, LLC v. City of

Philadelphia (Pa. Cmwlth., No. 1529 C.D. 2016, filed May 7, 2018), petition for

allowance of appeal denied, (Pa., No. 245 EAL 2018, filed Oct. 23, 2018).3

Here, the Majority neither “give[s] local zoning power great play” nor

construes the Ordinance “in a sensible manner to preserve [its] validity.” See

3

In accordance with Rule 126(b) of the Pennsylvania Rules of Appellate Procedure,

Pa.R.A.P. 126(b), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code

§ 69.414(a), unreported panel decisions of this Court may be cited for their persuasive value.

RCJ - 3

Council of Middletown Twp., 523 A.2d at 317. Instead, the Majority concludes the

entirety of the Ordinance is preempted by Section 6120(a) of the UFA and Section

2962(g) of the Home Rule Law because the Ordinance “is a gun regulation, not a

zoning regulation” as it “is clearly intended to regulate the sale of firearms, rather

than to regulate zoning.” Firearm Owners Against Crime v. Lower Merion

Township, ___ A.3d ___, ___ (Pa. Cmwlth., No. 765 C.D. 2024, filed Oct. 9, 2025),

slip op. at 11. The Majority does not, however, specifically explain how the

provisions of the Ordinance at issue before this Court regulate firearms, but merely

pronounces that these provisions “are part and parcel of the [O]rdinance’s intent

overall, which is to regulate guns and gun transfers.” Id. Contrary to the Majority’s

conclusion, none of the provisions of the Ordinance at issue here regulate the

ownership, transportation, possession, or transfer of firearms, ammunition, or

ammunition components.

The Township enacted the Ordinance to amend its zoning ordinance4 to

harmonize the unique zoning challenges caused by businesses requiring a federal

firearm license (FFL) with the Township’s comprehensive zoning plan.

See Ordinance § 5(A). Relevant here, the Township amended its zoning ordinance

to only permit FFL businesses as a conditional use in four zoning districts and to

require FFL businesses to meet the following conditional use standards:

(1) No FFL shall be permitted to operate in or on the grounds of, or

within 1,000 feet of the grounds of, a public, parochial or private

school, unless the FFL can demonstrate compliance with 18 U.S.C.

§ 922(q), as amended.

(2) An FFL shall produce and keep on file with the Township a current

copy of the applicable license or licenses issued by the federal Bureau

4

LOWER MERION TWP., MONTGOMERY CNTY., PA., ZONING ORDINANCE §§ 155-1.1–155-

11.4 (2025).

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of Alcohol, Tobacco, Firearms, and Explosives, as well as any other

required state, county, municipal, or administrative licenses or

registrations including but not limited to any required by the

Pennsylvania State Police.

(3) An FFL shall identify any fictious name under which the FFL will

operate, the street and mailing address for the business . . . .

Id. §§ 2, 5(C)(1)-(3).5 Based on the plain language of the Ordinance, none of these

provisions are preempted by Section 6120(a) of the UFA or Section 2692(g) of the

Home Rule Law.

To start, Sections 2 and 5(C)(1) of the Ordinance are not preempted by Section

6120(a) of the UFA or Section 2692(g) of the Home Rule Law because the

provisions regulate the location of FFL businesses. Section 2 of the Ordinance

only permits FFL businesses as a conditional use in four zoning districts. Therefore,

Section 2 of the Ordinance does not regulate firearms but is the quintessential land

use and zoning regulation because it regulates where a particular use is permitted

in the Township. See Arbor Res. LLC v. Nockamixon Township, 973 A.2d 1036,

1046 (Pa. Cmwlth. 2009) (“Regulating whether a particular use is permitted in a

particular location is the essence of zoning.”). Similarly, Section 5(C)(1) of the

Ordinance is a classic zoning regulation because it regulates the location of FFL

businesses in relation to school zones. See id. The Majority nonetheless concludes

this condition is preempted because it “appears to be directly lifted from the Gun-

Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), a federal gun regulation.”

5

As enacted, the Ordinance required 12 conditions for FFL businesses. Upon the

underlying challenge here from Firearm Owners Against Crime–Institute for Legislative and Legal

Educational Action, Shot Tec, LLC, and Grant Schmidt, the Montgomery County Court of

Common Pleas (trial court) permanently enjoined enforcement of conditions 4 through 12 and a

portion of the third condition because Section 6120(a) of the UFA preempted these conditions.

The Township has not challenged the trial court’s decision. Therefore, the only conditions at issue

before this Court are conditions one, two, and the portion remaining in three as identified above.

RCJ - 5

Firearm Owners Against Crime, ___ A.3d at ___, slip op. at 11. Even if true, Section

5(C)(1) of the Ordinance is not transformed into a regulation of firearms merely

because it appears similar to a federal firearm statute; Section 5(C)(1) simply

regulates the location of FFL businesses in relation to schools. Accordingly,

Sections 2 and 5(C)(1) of the Ordinance are not preempted because the provisions

are zoning regulations, not firearm regulations, as the provisions regulate the

location of FFL businesses. See Gun Range, slip op. at 13 (“Because the [zoning

ordinance] 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

[municipality], its zoning regulations as to the retail sales of firearms are not

preempted by [Section 6120(a) of the UFA].”).

Additionally, Sections 5(C)(2) and (3) of the Ordinance are not preempted by

Section 6120(a) of the UFA or Section 2962(g) of the Home Rule Law because

neither condition regulates firearms per se. Section 5(C)(2) requires FFL businesses

to provide the Township with the applicable licenses required to operate as an FFL

business. Relevantly, Section 5(C)(3) requires an FFL business to provide the

Township with any fictitious name and the business’s street and mailing address.

Neither of these conditions regulate the ownership, transportation, possession, or

transfer of firearms, ammunition, or ammunition components or restrict how FFL

businesses may operate and conduct their business. Rather, the conditions merely

request from FFL businesses information the businesses are already required to

obtain or possess to operate and conduct their business. Simply, these conditions

are not preempted because requiring FFL businesses to provide the requested

information as a condition to operate as a conditional use in designated zoning

districts does not regulate firearms per se. See Gun Owners of Am., 311 A.3d at 83-

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84 (upholding an ordinance that regulated the parts, machinery, and manufacturing

process of firearms because it did not regulate firearms per se); see also LOWER

MERION TWP., MONTGOMERY CNTY., PA., ZONING ORDINANCE § 155-10.6 (2025)

(requiring medical marijuana grower/processor facilities to provide similar

information as a condition to operate as a conditional use in the Township).

The Supreme Court has long directed that Pennsylvania courts should “give[]

local zoning power great play” and “[z]oning ordinances should be construed in a

sensible manner to preserve their validity.” Council of Middletown Twp., 523 A.2d

at 315, 317. The Supreme Court and this Court have consistently adhered to these

principles. See, e.g., Hoffman Mining, 32 A.3d at 600; Good, 967 A.2d at 429; Gun

Range, slip op. at 13. The Majority departs from this long-standing directive to

conclude the entirety of the Ordinance is preempted despite that, under a reasonable

construction of the Ordinance, the provisions at issue do not regulate firearms per se.

In so doing, the Majority deprives the Township of its land use and zoning

prerogative. Because I would construe the Ordinance in a manner that preserves its

validity and the Township’s traditional land use and zoning authority, I respectfully

dissent.

___________________________________________

RENÉE COHN JUBELIRER, President Judge

Judge Dumas joins in the dissent.

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