Saturday, June 28, 2008

Guns in Public Housing

Wasting little time, the NRA is bringing suit against cities and suburbs with the country's most restrictive gun laws. Although San Francisco's city-wide ordinance banning guns by city residents had already been held invalid on California state law grounds, the NRA has targeted another San Francisco policy---the housing authority's insistence that tenants in public housing agree not to have guns as a condition of their leases. I have a speaking part in this NPR story on the issue, in which I say that the lawsuit will almost certainly lose in the lower federal courts because, until the Supreme Court overrules Presser and Cruikshank, the Second Amendment does not apply against the states. Although Justice Scalia has said in his off-the-Court writings that this continues to be true, I would not bet a lot of money against the Court incorporating the Second Amendment when the issue comes before it.

Here I'll raise an issue that I discussed with the NPR reporter but that was cut from the story. Suppose the Second Amendment is incorporated. It's pretty clear that if so, a city could not ban gun possession in the home. That, after all, is what Heller expressly says of the federal government. But could a city---ostensibly acting in its capacity as landlord rather than as regulator---forbid tenants in public housing from having guns?

The NRA talking point in favor of this lawsuit is that poor people should have the same right to protect their homes and families as rich people do. That's a fair point, if it really is true that private leases in San Francisco generally do not contain n0-gun provisions. But if they do, then the insertion of a no-guns lease in a public housing lease doesn't put poor people in any worse position than typical renters in the private housing market.

The better argument for the NRA position attacks the regulatory/proprietary distinction. Even if a private landlord could enforce a no-guns condition in a lease, it does not follow that a public housing authority could. Consider an analogy. State law might make enforceable a private lease that authorized the landlord to gain access to a tenant's apartment "whenever, in the landlord's sole discretion, entry is deemed useful for the safety of the other tenants." Yet a parallel provision in a public housing lease would---or at least good liberals would say "should"---raise Fourth Amendment concerns, as it authorizes warrantless searches on less than probable cause. Likewise, here: Just as the government as employer has constitutional obligations that a private employer lacks, so too the government as landlord has constitutional obligations.

The best reason to uphold a no-guns lease would be that public housing is already dangerous, and more guns will likely make it more dangerous. But that argument has just about no chance of succeeding, given that it is precisely the policy argument against a robust private right to gun ownership in the first place. If the Supreme Court eventually incorporates the Second Amendment against the states, it will presumably rule out the argument that guns may be banned because they make people unsafe. Might the San Francisco Housing Authority argue that public housing is akin to those special places recognized as permissible gun-free zones by the Court in Heller: schools and government office buildings? Although this list presumably is not exhaustive---e.g., airport gun bans are certainly valid---the mere fact that a place has a lot of crime is not going to turn it into a permissible gun-free zone. If it could, then the entire District of Columbia would qualify and the exception would have swallowed the rule in Heller.

[NB: I'll be taking a break from blogging as I move from NYC to Ithaca. Look for some posts by Neil Buchanan and possibly other co-bloggers over the next week.]

Posted by Mike Dorf


heathu said...

Although the Heller decision stands for the proposition that the 2nd Amendment’s prefatory clause “does not limit or expand the scope of the operative clause,” could the prefatory clause stand as a textual reason not to incorporate the 2nd Amendment and make it applicable to the states? Heller states the prefatory clause “ does not limit the latter grammatically, but rather announces a purpose.” If the purpose of the 2nd Amendment is to benefit “the security of a free state” with a “well-regulated militia”, what if a state decides to waive that benefit? Way back in the 18th century, states benefitted by having men with their own guns who could be mustered and serve the state, and the states didn’t want to give that up by having this new federal entity they were creating disarm their men. But suppose in the 21st century, a state (I’ll take my home state of NJ as an example) says “Thank you, heathu, but we don’t need your marksmanship skills at the ready anymore. We have professional police and National Guardsman to do the tasks we would call regular white men to do. We now think that too many guns in our populace is dangerous and want to ban all of them.” If my home state of NJ does not have a “right to keep and bear arms” analogue in our state constitution, (which a quick check of the online version of our state constitution indicates we don’t) then I’d be out of luck. After all, the Supreme Court doesn’t automatically incorporate every amendment in the Bill of Rights - I still don’t have a federally guaranteed right to a jury trial in civil cases, and I could still have to serve as an unwitting host to New Jersey National Guardsmen (called up under U.S. Code Section 32, anyway) in my apartment - so maybe the prefatory clause of the 2nd Amendment could provide an originalist, textual reason not to incorporate it.

Sobek said...

Wouldn't a better analogy be based on equal protection? If San Francisco decided that public housing were only available for white tenants, there is no doubt whatsoever that the law would be invalid, and San Francisco could save its ordinance by claiming it was acting as a lessor rather than a municipality.

I agree with you that the Court would not likely accept the argument that public housing is too dangerous to allow guns. Pro-gun groups argue that they are dangerous specifically because criminals know no one in there is armed, so it's easy pickings. You can argue that's not true, but such an argument impliedly failed in Heller.

Sobek said...

"...could the prefatory clause stand as a textual reason not to incorporate the 2nd Amendment and make it applicable to the states?"

Yes. But the first word of the First Amendment is a strong textual reason not to incorporate that Amendment against the States, and we all know what happened with that.

"If the purpose of the 2nd Amendment is to benefit 'the security of a free state' with a 'well-regulated militia', what if a state decides to waive that benefit?"

Scalia said that "state" means "polity," which presumably also includes the feds, counties, cities, etc.

Adam P. said...

Isn't this just Rust v. Sullivan though? You have a right to an abortion, but that doesn't include a right to a state subsidy of it. You have a right to a home protected by guns, but the state doesn't have to subsidize it.

More over, when the state is acting as to regulate its own property as landlord, I think there is a distinction. There are all sorts of regulations the state imposes on public housing that would not be valid as to the state as a whole- mandatory reporting of work, limits on who can live together, etc.

Andj said...

oh my, i don't even want to read this. why can't things be simple like fuck. gun or no gun in a fucking house isn't gonna change a persons will to use it, if he is truly determined or obsessed with it he'll hide it in his car or office. for those disturbed that live in poor homes if they really want to kill they can use a kitchen knife, it'll make less noise and probably be in reach assuming that the, what should be an unsettled argument, would be taking place in the living area rather than the corner of bedroom beside the cabinet in where the gun is being kept. if it's a really poor home with a bedroom and kitchen in one than i really don't know what else to say. but i suppose we could make an argument out of everything can't we!

heathu said...

Regarding Sobek’s point that the first word of the 1st Amendment is “Congress”, and it was incorporated anyway: The entire Bill of Rights was originally only meant to be a check on Congress, so the fact the 1st Amendment was incorporated would be an argument that the entire Bill of Rights should be incorporated wholesale, an approach the court has not taken. Besides, it sidesteps the point I was making that the 2nd Amendment is the only amendment in the Bill of Rights that announces a purpose, a purpose, it could be argued, not served by incorporation.

Another point regarding incorporation is this: It only takes one of the conservative justices who signed on the majority to decide, for whatever reason, it is not incorporated. Assuming the dissenting justices will vote against incorporation, it could go 5-4 against incorporation, leaving the Heller decision to stand for little else than Mr. Heller gets his gun.

Early to Bed said...

The 2nd amendment is perfectly clear in intent. Try this one on for size.

A walk around the lake on a sunny day, being necessary to a happy disposition, the right of the people to keep and wear shoes shall not be infringed.

Does this limit the people to wear shoes only in their homes, or only while walking around the lake. Clearly not. It merely points out a major benefit of wearing shoes.

Sobek said...

"...the 2nd Amendment is the only amendment in the Bill of Rights that announces a purpose..."

The entire Constitution announces its purpose, yet no one has contended in over two centuries that it restricts the scope of the rights set forth therein.

Adam P. said...

But shoes aren't guns. And obviously, even if they were, no right is absolute even if there is no language conditioning it.
Take speech. "The freedom of speech shall not be abridged." Under your logic, heathu, that would mean ALL SPEECH can never be punished. So public employees could never be punished for their speech; obscenity could never be punished; etc. Since no one on the court, and few of those supporting a robust 2d Amendment, espouses that view, your analogy is .

Andj, knives are not protected. What if the housing development bans poison, knives, and every other conceivable weapon? The inconsistency of rights jurisprudence with this new Heller right is shown, in that you can regulate the things with less dangerous applications but not things with fewer non-lethal applications.
Moreover, we now privilege the right to own a weapon over the right to vote. Judicial activism indeed.

Sobek said...

" that you can regulate the things with less dangerous applications but not things with fewer non-lethal applications."

How so? Heller did not say guns cannot be regulated.

"Moreover, we now privilege the right to own a weapon over the right to vote."

How so?

Early to Bed said...

Whoa, slow down. You worry too much over guns. Wake up, worry over the fact that you have no voting rights.

Not until "None of the Above" is automatically on every ballot for every elective office, will everyone eligible to vote have voting rights. I don't know why I put that in a blog on Guns in Public Housing. So don't ask. I look at the two bozos who will be on the Nov. 2008 Presidential ballot and I have no one to vote for.

As far as Guns in Public Housing, every honest, of military age, citizen has the right to self-defense.

vanrana said...

Dorf, anti-gun fanatics are responsible for more criminal deaths than are armed law-abiding citizens. When are you going to face reality and accept that "gun-free zones" aree simply shooting galleries for criminals? It is already against the law to attack and murder people, why do you think that denying the law-abiding citizens the means and rights to protect themselves will reduce assault and murder rates. Just study England for a real live example of how a country went from one of the safest to one of the most deadly in less than a century, because of it implemented anti-gun legislation.

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