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

> Commonwealth Court of Pennsylvania · October 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11159741

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 9, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Wolf. Cohn Jubelirer
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11159741

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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).

RCJ - 4
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-

RCJ - 6
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11159741. Public record. Not legal advice.