March 18, 2018
More on the East St. Louis Housing Gun Case
Timothy Birdnow
Reason published an article by Eugene Volokh about the East St. Louis Housing Authority gun ban case I wrote about in American Thinker yesterday.
For a quick recap of my article, a woman living in public housing in what Donald Trump would call a s hole, aka East St. Louis (America's premier third world city) was facing eviction for keeping a firearm for her protection. She had been raped and had an ex who was violent, and the woman was a legal concealed carry permit holder. She is suing, arguing she has a Second Amendment right to possess the firearm. The government disagrees, arguing that since she is accepting assistance from her fellow citizens they have a right to put restrictions on some things - such as gun possession. The case is pending in court.
Volokh states:
"There is little law on the subject, and it's mixed:
[A.] Constitutional rights generally seem to apply to public housing, though there have been few cases on the subject. See, e.g., Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding that the Fourth Amendment barred warrantless sweeps through public housing projects); Resident Action Council v. Seattle Hous. Auth., 174 P.3d 84 (Wash. 2008) (evaluating restriction on public housing residents' posting materials on the outside of their apartment doors the same way the U.S. Supreme Court had evaluated restriction on private residents' rights to post materials in their windows).
[B.] A 2014 Delaware Supreme Court decision held that public housing tenants have a right to bear arms under the Delaware Constitution's right to bear arms provision -- "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use" -- even in common areas of the building. (The court noted that the Delaware Constitution's language may justify broader protection than that given by the Second Amendment, and indeed a federal district court had upheld the ban on gun possession in common areas under the Second Amendment; but given the individual rights reading of the Second Amendment in D.C. v. Heller, I'd view the Delaware Supreme Court's reasoning as potentially influential in other states, too.)
Nonetheless, the main limitation of the case is that the government "conceded that after [McDonald v. City of Chicago], as a landlord it may not adopt a total ban of firearms." This meant that the Delaware court didn't focus on analyzing whether banning guns in people's public housing apartments was unconstitutional; instead, the court reasoned that, accepting that the inside-apartment ban would be unconstitutional, a ban on possession in common areas was, too.
[C.] A nonprecedential 2004 Michigan appellate court decision upheld a ban on gun possession in public housing against a challenge based on the Michigan Constitution's right to bear arms provision ("Every person has a right to bear arms for the defense of himself and the state"):
While the right to possess arms is acknowledged within the Michigan Constitution, this right is subject to limitation. Jurisprudence in this state has consistently maintained the right to keep and bear arms is not absolute. This Court has determined that "the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power." The state has a legitimate interest in limiting access to weapons.
It is recognized that public housing authorities have a legitimate interest in maintaining a safe environment for their tenants. Infringements on legitimate rights of tenants can be justified by regulations imposed to serve compelling state interests which cannot be achieved through less restrictive means. Restrictions on the right to possess weapons in the environment and circumstances described by plaintiff are both in furtherance of a legitimate interest to protect its residents and a reasonable exercise of police power. This is particularly true given defendant's failure to make any allegation she feels physically threatened or in danger as a resident of plaintiff's complex necessitating her possession of a weapon to defend herself.
But this can't be a sound argument, because it doesn't explain why governmental restrictions on guns in public housing projects are any different from governmental restrictions on guns in private housing. After all, the government has a "legitimate interest" in "maintaining a safe environment" for everyone; there are few "environment and circumstances" in which guns lose their dangerousness; and the government's "police power" extends to private property as well as to government property. Yet the government can't just ban guns in private housing using the argument given above -- and the Michigan opinion doesn't explain why the rules for guns in public housing should be any different.
(A Maine trial court took the same view in 1993, but its analysis was similarly weak.)
[D.] A 1988 Oregon Attorney General opinion, applying the Oregon Constitution's right to bear arms ("The people shall have the right to bear arms for the defence of themselves"), took the opposite view from the Michigan court:
It is well settled that the government may not condition entitlement to public benefits, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action. The United States Supreme Court has repeatedly upheld that principle under the United States Constitution....
... Although the Oregon Supreme Court has not ruled on the issue directly, from [various state court] authorities we believe that, if faced squarely with the question, the court would hold that this "unconstitutional condition" principle applies under the Oregon Constitution....
Eligibility for low-income housing provided by a housing authority plainly is a public benefit or privilege. Subject to certain federal limitations, a housing authority lawfully may condition eligibility for low-income housing on satisfaction of income criteria and other factors designed to ensure that only responsible tenants reside in that housing. However, we conclude that a housing authority may not require an otherwise-eligible individual to surrender rights under article I, section 27 in order to obtain low-income housing.
End excerpt.
Volokh goes on to point out that there are indeed situations where people surrender some of their rights in return for a benefit, and the courts have generally ruled that it is acceptable on limited terms. A case worker, for instance, may be permitted to do home inspections in public housing but the generally rule is these inspections must be limited in scope. He concludes that there probably should remain a right to keep and bear arms in public housing but with limits that comport with the safety of other residents; no high powered weapons, or whatnot.
This is a tricky question. In a rational world I would say there is a right to restrict things like gun ownership if you voluntarily take public assistance; strings should be expected. But this is not a rational world, and the gun grabbing Left will use all available tactics to get what they want. If we agree to a limitation on guns here we will be fighting them later over restrictions on others, like retirees, or student loan recipients. The Left always twists everything together to get their way. It's unfortunate but a "reasonable" gun restriction is like crack in a concrete dam; you've got to plug it right away or the whole thing will collapse.
Also, if you live in East St. Louis you had better have a gun.
Now, the liberals will use this to argue for "mixed use" housing where public assistance types live cheek by jowel with market renters. That's been another goal of the Left for a long time. But nobody wants that; it leads to nothing but deterioration and decay. Here in St. Louis there was a place called Laclede Town which was such an experiment; within a couple of years all of the non welfare types were gone and Laclede Town turned into a crime riddled hellhole.
These projects are tough places. There are people willing to live there, but they have to have a way to protect themselves.
And what are the limits of a Constitutional right? Interestingly enough, the First Amendment speaks of "Congress shall make no law" but the Second Amendment doesn't even bother mentioning Congress, but says "the right of the People to keep and bear arms shall not be infringed." There is NO wiggle room.
Thoughts?
Reason published an article by Eugene Volokh about the East St. Louis Housing Authority gun ban case I wrote about in American Thinker yesterday.
For a quick recap of my article, a woman living in public housing in what Donald Trump would call a s hole, aka East St. Louis (America's premier third world city) was facing eviction for keeping a firearm for her protection. She had been raped and had an ex who was violent, and the woman was a legal concealed carry permit holder. She is suing, arguing she has a Second Amendment right to possess the firearm. The government disagrees, arguing that since she is accepting assistance from her fellow citizens they have a right to put restrictions on some things - such as gun possession. The case is pending in court.
Volokh states:
"There is little law on the subject, and it's mixed:
[A.] Constitutional rights generally seem to apply to public housing, though there have been few cases on the subject. See, e.g., Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding that the Fourth Amendment barred warrantless sweeps through public housing projects); Resident Action Council v. Seattle Hous. Auth., 174 P.3d 84 (Wash. 2008) (evaluating restriction on public housing residents' posting materials on the outside of their apartment doors the same way the U.S. Supreme Court had evaluated restriction on private residents' rights to post materials in their windows).
[B.] A 2014 Delaware Supreme Court decision held that public housing tenants have a right to bear arms under the Delaware Constitution's right to bear arms provision -- "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use" -- even in common areas of the building. (The court noted that the Delaware Constitution's language may justify broader protection than that given by the Second Amendment, and indeed a federal district court had upheld the ban on gun possession in common areas under the Second Amendment; but given the individual rights reading of the Second Amendment in D.C. v. Heller, I'd view the Delaware Supreme Court's reasoning as potentially influential in other states, too.)
Nonetheless, the main limitation of the case is that the government "conceded that after [McDonald v. City of Chicago], as a landlord it may not adopt a total ban of firearms." This meant that the Delaware court didn't focus on analyzing whether banning guns in people's public housing apartments was unconstitutional; instead, the court reasoned that, accepting that the inside-apartment ban would be unconstitutional, a ban on possession in common areas was, too.
[C.] A nonprecedential 2004 Michigan appellate court decision upheld a ban on gun possession in public housing against a challenge based on the Michigan Constitution's right to bear arms provision ("Every person has a right to bear arms for the defense of himself and the state"):
While the right to possess arms is acknowledged within the Michigan Constitution, this right is subject to limitation. Jurisprudence in this state has consistently maintained the right to keep and bear arms is not absolute. This Court has determined that "the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power." The state has a legitimate interest in limiting access to weapons.
It is recognized that public housing authorities have a legitimate interest in maintaining a safe environment for their tenants. Infringements on legitimate rights of tenants can be justified by regulations imposed to serve compelling state interests which cannot be achieved through less restrictive means. Restrictions on the right to possess weapons in the environment and circumstances described by plaintiff are both in furtherance of a legitimate interest to protect its residents and a reasonable exercise of police power. This is particularly true given defendant's failure to make any allegation she feels physically threatened or in danger as a resident of plaintiff's complex necessitating her possession of a weapon to defend herself.
But this can't be a sound argument, because it doesn't explain why governmental restrictions on guns in public housing projects are any different from governmental restrictions on guns in private housing. After all, the government has a "legitimate interest" in "maintaining a safe environment" for everyone; there are few "environment
(A Maine trial court took the same view in 1993, but its analysis was similarly weak.)
[D.] A 1988 Oregon Attorney General opinion, applying the Oregon Constitution's right to bear arms ("The people shall have the right to bear arms for the defence of themselves"), took the opposite view from the Michigan court:
It is well settled that the government may not condition entitlement to public benefits, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action. The United States Supreme Court has repeatedly upheld that principle under the United States Constitution....
... Although the Oregon Supreme Court has not ruled on the issue directly, from [various state court] authorities we believe that, if faced squarely with the question, the court would hold that this "unconstitutional condition" principle applies under the Oregon Constitution....
Eligibility for low-income housing provided by a housing authority plainly is a public benefit or privilege. Subject to certain federal limitations, a housing authority lawfully may condition eligibility for low-income housing on satisfaction of income criteria and other factors designed to ensure that only responsible tenants reside in that housing. However, we conclude that a housing authority may not require an otherwise-eligible individual to surrender rights under article I, section 27 in order to obtain low-income housing.
End excerpt.
Volokh goes on to point out that there are indeed situations where people surrender some of their rights in return for a benefit, and the courts have generally ruled that it is acceptable on limited terms. A case worker, for instance, may be permitted to do home inspections in public housing but the generally rule is these inspections must be limited in scope. He concludes that there probably should remain a right to keep and bear arms in public housing but with limits that comport with the safety of other residents; no high powered weapons, or whatnot.
This is a tricky question. In a rational world I would say there is a right to restrict things like gun ownership if you voluntarily take public assistance; strings should be expected. But this is not a rational world, and the gun grabbing Left will use all available tactics to get what they want. If we agree to a limitation on guns here we will be fighting them later over restrictions on others, like retirees, or student loan recipients. The Left always twists everything together to get their way. It's unfortunate but a "reasonable" gun restriction is like crack in a concrete dam; you've got to plug it right away or the whole thing will collapse.
Also, if you live in East St. Louis you had better have a gun.
Now, the liberals will use this to argue for "mixed use" housing where public assistance types live cheek by jowel with market renters. That's been another goal of the Left for a long time. But nobody wants that; it leads to nothing but deterioration and decay. Here in St. Louis there was a place called Laclede Town which was such an experiment; within a couple of years all of the non welfare types were gone and Laclede Town turned into a crime riddled hellhole.
These projects are tough places. There are people willing to live there, but they have to have a way to protect themselves.
And what are the limits of a Constitutional right? Interestingly enough, the First Amendment speaks of "Congress shall make no law" but the Second Amendment doesn't even bother mentioning Congress, but says "the right of the People to keep and bear arms shall not be infringed." There is NO wiggle room.
Thoughts?
Posted by: Timothy Birdnow at
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