Wednesday, September 25, 2019

Veteran Successfully Challenges Public Housing Gun Ban

Posted at 9:04 am 
on September 25, 2019 
Cam Edwards

Tom Chapin is a gun owner in Menomonie, Wisconsin, but until recently he wasn’t allowed to have his guns in his home. He wasn’t subjected to a red flag or order or anything like that. The military veteran lives in a property owned by the Housing Authority of the City of Menomonie, and they ban firearms in their properties, or at least they did until a group called the Wisconsin Institute for Law and Liberty got involved.

In a May 2019 letter to the Housing Authority, WILL Deputy Counsel Tom Kamenick wrote, in part, “We are aware of no ban on firearm ownership by residents of public housing that has survived a legal challenge. The Authority’s ban plainly violates the constitutional rights of Mr. Chapin and all other residents of the Authority’s housing.”

Upon receipt of WILL’s letter, the city housing authority agreed to stop enforcing the gun ban and to remove the ban from all leases by April 2020. A formal agreement was signed on Sept. 13.

Good. Bans on firearms in public housing are some of the most egregious violations of the 2nd Amendment rights of Americans, n my opinion. Governments exist to protect our rights, not to deny the rights of some of society’s most vulnerable. And Kamenick is correct in noting that no ban on gun ownership in public housing has survived legal scrutiny. The 2nd Amendment doesn’t say “… the right of the people to keep and bear arms shall not be infringed, unless you live in public housing”, and banning all firearms from someone’s home is about as infringey as it gets.

The NRA has been involved in several challenges to similar bans over the years, including a ban on guns in public housing in Wilmington, Delaware that was fought by Josephine Byrd, a woman in her 70s who, in her words “marched behind Martin Luther King at Selma” for civil rights, but was denied her right to keep and bear arms in her own apartment. Her courage in taking on the ban resulted in it being struck down by the Delaware State Supreme Court, and now she and others can protect themselves with a firearm in their residences.

The Wisconsin Institute for Law and Liberty notes that these gun bans are still fairly common, which is sad but true. And as UCLA law professor Eugene Volokh pointed out at Reason earlier this year, in Michigan the state appellate court has ruled that public housing authorities have the power to ban guns from their properties.

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.

As Volokh notes in his analysis, the Michigan court’s decision suffers from one major flaw.

“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[s] 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.”

The Michigan opinion is really an outlier here. Most courts, and most housing authorities when challenged, accept the fact that the right to keep and bear arms exists, even for residents of public housing. It’s just a shame that it takes the threat of a court fight to get the right recognized in so many places.

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