A week ago, in Lincoln Park Housing Comm'n v. Andrew, the Michigan Court of Appeals held that a public housing agency may bar its tenants from possessing guns. The public housing agency, though, is governed by the Michigan Constitution of 1963, article 1, section 6 of which says "Every person has a right to keep and bear arms for the defense of himself and the state."

     The court dealt with the right to keep and bear arms by reasoning that:

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.

     This analysis, I think, can't be right: Under this reasoning the government could equally entirely ban all guns, since the government has a compelling interest in maintaining a safe environment for everyone, and since the court seems willing to defer to the government's assertion that banning guns is a reasonable means of serving that interest. But surely a court can't simply negate a constitutionally secured right, not just in its peripheral or unusual applications, but in its very core, simply by reasoning that the right is dangerous. Presumably the right's presence in the state bill of rights represents a constitutional judgment that every person has a right to keep and bear arms for the defense of himself (or, in this case, herself) despite the arguments (familiar in 1963 as they are today) that banning guns is needed to "maintain[] a safe environment."

     The tougher question, it seems to me, is whether the government acting in its capacity as landlord has the power to completely prohibit the exercise of this constitutional right, as a condition of using government property. This is the issue that arises when the government tries to insist that tenants waive their Fourth Amendment rights, see the controversial decision in Pratt v. Chicago Housing Authority, 848 F. Supp. 792 (N.D. Ill. 1994) (holding such a waiver requirement to be unconstitutional, despite its seeming popularity with most tenants), or perhaps that they not live with relatives (such as grandkids) other than their parents, spouses, and children (a condition that the Court struck down when imposed by the government as to private property). The Michigan court pointed, in another section of the opinion, to cases in which "evictions by public housing authorities have been upheld as not violative of the right of free association when such actions by the housing association was part of their efforts to control crime." But as I read these cases, they simply concluded that the right of association wasn't sufficiently burdened when tenants are evicted for not taking sufficient steps to prevent their guests and apartment-mates from committing crimes -- the cases didn't allow categorical prohibitions on intimate association, so I'm not sure they're an adequate precedent for upholding a categorical prohibition on the exercise of a constitutional right here.

     This, of course, is another aspect of the perennial "unconstitutional conditions" problem, which asks when the government may insist that people waive their constitutional rights as a condition of using government property or some government benefit -- a very important question in a country where governments at all levels take and then redistribute 25-30% of the GNP, and control a vast range of property that most people have to use. It's an unusual and particularly interesting aspect, though, especially since it cuts a bit across political lines: The right to bear arms is generally most supported by conservatives and libertarians, while restrictions on the government's power to attach conditions to its property are generally most supported by liberals.

     Incidentally, since forty-four of the 50 states have right to bear arms provisions in their state bills of rights, this issue will remain regardless of the outcome of the Second Amendment debates.

UPDATE: A couple of people have suggested that the government's power here is similar to the government's power to restrict guns in courthouses, airports, schools, and the like. I don't think that's quite right.

     First, state courts interpreting right to bear arms provisions have distinguished the ability to have a gun at home from the ability to have it outside the home. I think that's generally a mistake (except when the text of the constitutional provision provides for greater regulation of "wearing" or carrying guns, which generally does refer to carrying them outside the home). When the provision affirms our right to defend ourselves using guns, it should generally (perhaps with some exceptions, but generally) apply to defending ourselves wherever we are in danger, whether that's in the home or outside the home. But I do agree that the provision certainly does apply, at least and especially, to defending yourself in your own home. Stopping you from defending yourself in public places interferes with your right to bear arms -- but stopping you from defending yourself even at home interferes with it even more. And your apartment in a public housing complex is your home, where an airport or a courthouse is not (even for those who spend as much time in the office as Judge Kozinski's clerks do).

     Second, at least in courthouses and in airports, the government can credibly claim that the risk of criminal attack -- the main thing from which you have a right to defend yourself -- is considerably less, because the government does indeed police those places pretty well (not perfectly, but much better than most other places). One could plausibly argue that therefore the right is weaker in those places as well. Again, though, one surely can't make the same argument as to public housing.

     So even if the government has the power to restrict guns in public places (whether publicly owned or privately owned -- some state laws, for instance, ban the possession of guns in places where alcohol is served), and even if the government should have the power to restrict guns in at least some public places, people's apartments in government-run housing complexes seem to be a very different matter.