It has happened before in Massachusetts: A small, hardy band of armed Americans faces off against elements of the most powerful military in the world and commits a revolutionary act that paves the way for greater freedom for their countrymen. In this case, as then, the immediate confrontation was over the military’s infringement of the Americans’ right to arms. And, as before, the insurgents won a hard-fought victory and secured their precious liberties for another day.
Unlike in 1775, fortunately, this skirmish occurred in the relatively civil battleground of the United States District Court for the District of Massachusetts. The combatants were not exchanging lead balls and bayonet thrusts but court filings and legal memoranda. The issue was whether the U.S. Army could effectively eject a local gun club from its longstanding use of the installation’s shooting ranges via the imposition of exorbitant and unsubstantiated fees. The club successfully invoked the protection of a little-known federal range access statute, winning an improbable legal victory that could potentially serve as a template for similar lawsuits. The case is Ft. Devens Rifle & Pistol Club, Inc. v. U.S. Army Garrison Fort Devens.
The Fort Devens Rifle & Pistol Club, the members of which are mostly U.S. military veterans, is a certified affiliate of the Civilian Marksmanship Program. It was formally incorporated in 1996 and had been using the ranges at Fort Devens in Massachusetts since 1990 to stage competitions and marksmanship practice. The base itself closed as an active-duty military installation in 1996 and has since served as a training center for the Army Reserve and National Guard. Its 56 firing ranges also continue to provide a valuable resource to both private gun owners and law enforcement agencies in the area.
For some 30 years, use of certain ranges was made available to the Fort Devens Rifle & Pistol Club free of charge, with the club providing its own supplies and ammunition, as well as oversight and safety personnel. The club also policed its own brass and made sure its members conducted themselves as good stewards of the facilities. All concerned seemed happy with the arrangement for many uneventful years.
All that changed, however, right around the time Joe Biden declared himself the winner of the 2020 presidential election, when the club received notice from the Army that future uses of the ranges beginning in 2021 would be subject to a $250 minimum fee per outing. The Army cited a June 19, 2020, Department of Defense memorandum that announced the DOD would provide “non-reimbursable support of any nature” to other governmental or private entities only where “required by statute[.]”
The club objected to the Army’s fee demand, responding that it was “excessive,” as well as “arbitrary and capricious.” It attempted to negotiate an alternative arrangement where the club was charged a more modest fee based on the number of shooters attending an outing. The Army rejected the counteroffer, stating that the facility “is not funded for purposes of providing access and usage of its ranges and facilities to non-DOD organizations.” It reasserted its $250 asking price as a take-it-or-leave-it proposition.
Thereafter, the club filed a Freedom of Information Act (FOIA) request to obtain information that would allow it to evaluate the Army’s purported expenses in providing range access. The Army charged the club $1,056 to process the request but then balked at providing any records after the fee was paid. Of particular note was its reluctance to disclose details of its contract with a company providing port-a-johns to the installation, which the Army insisted was “confidential information.” This and other circumstances led club officials to conclude the Army’s asserted expenses – which included compensation for a range officer and range safety technician that had never been present at previous outings, “wear and tear” of target holders, and $144.12 for a couple hours’ use of a portable toilet – were pretexts designed to discourage the club from use of the facilities.
Faced with this sort of resistance and stonewalling by one of the planet’s most powerful and opaque bureaucracies, many would have surrendered the field. Fortunately for the Fort Devens Rifle & Pistol Club, its treasurer, James Gettens, is himself a veteran of the Army’s Judge Advocate General Corps and is not overawed by the military’s ability to wield jargon, paperwork, procedure, and delay in vindicating its positions. Rather than retreat, he dug in, and – with the help of pro-gun attorney Richard Chambers – sued to assert the club’s rights.
The club raised a little known but expansive federal law codified at 10 U.S.C. § 7409, which broadly states: “All rifle ranges constructed in whole or in part with funds provided by the United States may be used by members of the armed forces and by persons capable of bearing arms.” It further provides: “In the case of a rifle range referred to in subsection (a) that is located on a military installation, the Secretary concerned may establish reasonable fees for the use by civilians of that rifle range to cover the material and supply costs incurred by the armed forces to make that rifle range available to civilians.”
The complaint averred that Fort Devens incurred no extra costs for the club’s activities on the installation above what it already cost to operate the facility for DOD purposes and that those costs are paid in full by congressionally appropriated funds. It also stated that the fees the Army could charge the club for use of the ranges were limited to the “material and supply costs incurred … to make the range available,” which the Army had failed to substantiate by answering the club’s FOIA request, although the club had already paid the processing fee.
On March 20 of this year, U.S. District Judge Myong J. Joun – a Biden appointee, no less – ruled in favor of the club, granting its motion for summary judgment as to the first count of the complaint, brought under 10 U.S.C. § 7409, and denying the Army’s own cross-motion for summary judgment on that count. In granting relief, the court wrote:
Until such time that the Army can arrive at a reasonable fee for the Club’s use of the Army’s firing ranges consistent with the adopted R&R and can demonstrate the reasonableness of such fee—which will necessarily entail providing a breakdown of actual expenses in material and supply costs attributable to a non-DOD entity’s use of the firing ranges and an explanation as to how the fee was calculated—the Club is restored to its original position prior to October 2020, such that the Club’s members will be granted access to the firing ranges at no charge.
According to Mr. Gettens, the Army has now capitulated, and amicable relations between the club and the powers-that-be at Fort Devens are on their way to being restored. Whether that, or the inhospitable treatment the club endured over the previous four years, had anything to do with the respective commanders in chief at the time, has not been conclusively established. But the coincidences of timing and of those officials’ very different approaches to the Second Amendment have not been lost on James Gettens.
There appear to be no prior published decisions on enforcement of range access under10 U.S.C. § 7409. The case therefore represents an important precedent that could lead to more access to federally funded ranges, which – after all – ultimately owe their existence to the U.S. taxpayer.
It also reasserts an important lesson that another empire learned 250 years ago and that is well known to every member of the NRA: Never underestimate a determined band of Americans, however outnumbered and under-resourced, fighting to preserve their rights.
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