It’s been fifteen years since the Supreme Court told Washington, D.C. that banning the possession of handguns in the home violated the constitutional rights of residents, but some government agencies still haven’t gotten the message that preventing residents from keeping a firearm in their residence is a legal no-no. The Second Amendment Foundation, along with three individual plaintiffs, are now reminding the Cortland Housing Authority in Cortland, New York of that fact with a new lawsuit filed in federal court.
The Housing Authority oversees 380 federally-subsidized public housing units in multiple locations throughout Cortland County, and every tenant must abide by the CHA’s edict that they are obligated “not to display, use, or possess or allow members of Tenant’s household or guest to display, use or possess any firearms (operable or inoperable) or other weapons as defined by the laws and courts of the State of New York anywhere on the property of CHA.”
In April of this year Robert Hunter, who’s a tenant in one of the CHA’s senior public housing departments, fired off a letter to the Authority questioning the policy and pointing out that the provision in the lease violates his constitutional rights. A few weeks later Hunter’s attorney received a terse reply informing them that the CHA “will not be changing our stated position or lease provision on this matter.”
In their complaint, the plaintiffs argue the gun ban in Housing Authority properties is virtually identical to a prohibition put in place by the East St. Louis Housing Authority in Illinois; a prohibition that was successfully challenged by SAF and the Illinois State Rifle Association several years ago. In that case the Housing Authority ended up settling with the 2A groups and the resident who wanted to keep a firearm in their home for personal protection, acquiescing to a court order enjoining the Authority from denying “residents who are permitted under Illinois law to possess a firearm, to possess functional firearms that are legal in their jurisdiction for self-defense and defense of others in their residences, provided they are otherwise-qualified to do so.”
Now SAF and the three tenants of the Cortland Housing Authority are asking for the same relief from the federal courts in New York.
A governmental entity simply may not impose a wholesale ban on the possession of firearms in the home. Heller, 554 U.S. at 576 (holding that the District of Columbia’s “total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense” violated the Second Amendment) (emphasis added); Id. at 627 (“As we have said, the law totally bans handgun possession in the home.”) (emphasis added).
It is beyond cavil that there is no historical tradition of banning firearms possession in American homes. Therefore, CHA cannot make an affirmative showing that the Firearms Ban is part of any historical tradition of firearms regulation.
Moreover, because “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,” Heller, 554 U.S. at 582 (emphasis added), the Firearms Ban is unconstitutional both because it bans the possession of firearms and because it bans the possession of other legal non-firearm weapons, such as knives. The Individual Plaintiffs have a fundamental right not only to possess firearms in their homes at the Galatia Apartments, but also to possess non-firearm weapons for self-defense and other lawful purposes.
This case should be a slam-dunk, though you never know what kind of screwy rationale a judge might use to uphold a particular anti-gun policy. But Heller really did reject the idea that a governmental entity could institute a ban on handguns in the home, so the Cortland Housing Authority’s complete and total prohibition on all firearms is an even more egregious constitutional violation. The CHA might try to argue that as a landlord it has the right to impose whatever restrictions it wants on tenants, but as a governmental body it simply doesn’t have the authority to demand its residents be disarmed.
Besides the case involving the East St. Louis Housing Authority, I’m aware of at least one other successful challenge to a housing authority’s ban on firearms. In 2010, shortly after the McDonald decision came down and incorporated the Second Amendment against any infringement by state or local governments as well as the federal government, the NRA filed suit against the Wilmington Housing Authority in Delaware. At first, the authority tried to duck the issue by rescinding its ban on firearms in residents’ apartments, but maintained a ban in “common areas” of authority property. In 2014, however, the Delaware Supreme Court concluded that even the revised restrictions was a violation of the Second Amendment.
If the powers that be at the Cortland Housing Authority had done their homework, they would realize they don’t have a legal leg to stand on here. By demanding residents give up their right to armed self-defense as a condition of their lease, they’re shredding the protections guaranteed by the Second and Fourteenth Amendments. They could have done the right thing without being hauled into court, but if that’s what it takes to get them to comply with the Constitution, so be it and best of luck to the Second Amendment Foundation, Mr. Hunter, and the two other residents of the CHA who are suing to have their rights restored.