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