I suspect that this has less to do with DC v. Heller and more to do with the City's desire to save money. The City probably would have won in federal court (as the City of Chicago did). The 7th and 9th Circuits are probably not the best Circuits to test incorporation in any event.

Hawkins: The answer is not always. Consider, for instance, a prosecutor's conditioning eligibility for a plea agreement on the waiver of the right to trial by jury, or a government employer's conditioning an employee's paycheck on the employer's not saying things that dramatically undermine the employer's efficiency (cf. Pickering v. Board of Ed.). But the answer is also not never. What exactly the rule should be, or even what it is, is a matter that has occupied many people for many years, with no really clear answer emerging.

hawkins, sometimes yes, sometimes no.

Consider, for instance, a prosecutor's conditioning eligibility for a plea agreement on the waiver of the right to trial by jury

Is that constitutional?

I have more trouble with conditioning pleas on not appealing than on waiver of trial. Not having a trial would seem to be a major point of a plea agreement.

A flat out ban on handgun possession by anyone in a public housing
project would appear to be a clear problem under Heller. This situation
looks different though, since the prohibition was contained in the lease
agreement. Therefore it seems to be, not a flat out ban, but a
condition of agreeing to rent the unit to a tenant.

Except that it was imposed on tenants after they moved in. And ask yourself if a rental contract ban on writing letters to your Congresscritter, or writing books, would be Constitutional.

Presumably it
wouldn't apply to a resident who hadn't signed a lease (e.g. a roommate
or relative of a tenant) or to a guest. It's not so clear that that's a
problem under Heller, but in any event, it seems like a bad policy.
Living in a public housing project would make me more likely to want to
own a gun, not less.

Yup. And it was really outrageously stupid. The ban applied to water pistols. What are they smoking in San Francisco city government?

Clayton: I agree that the no-guns condition is potentially unconstitutional; and I agree that it's worth thinking of the First Amendment analogy. But the trouble is that there are other analogies, too.

For instance, under Moore v. City of East Cleveland, the government may not pass laws that limit people's ability to live with their family members. But does it follow that a government agency may not condition leases in certain housing projects on a promise to limit occupancy to 1 or 2 people, or not to have children living there? Far from clear. (Maybe federal or state laws may preclude some such no-children policies, but I don't think the Constitution does.) Conversely, people have a constitutional right not to have children, but a city may offer special housing options only to families with children living with them.

Likewise, the First Amendment protects not just the right to speak, but also the right to run a bookstore. But I take it that the city may ban people from conducting businesses in their apartments, including businesses that involve the constitutionally protected sale of books. So I don't think that the analogy to one sort of First-Amendment-protected activity is sufficient to dispose of the issue.

Seriously, the ban on water pistols wasn't so crazy. The projects have a lot of kids and a fair number of drive-by shootings. It wouldn't be the first time a kids was shot because someone mistook a toy for a gun.

and at least a ban on water pistols doesn't have the constitutional issues that a ban on firearms does (unless somebody is going to make the argument that a water pistol is an "arm" but i'll pray that doesn't happen).

the really bad ones are these "airsoft" guns. i have dealt with kids carrying these on several occasions. some of them look exactly like the real gun they replicate.

Why aren't "airsoft" guns a big problem with younger folks in Japan (or Hong Kong, or Korea), where they are immensely popular? Could it be that some kids in the US aren't taught to behave responsibly when using airsofts?

The object itself is not the problem, its the person using it to cause problems.

not that i said that airsofts are a big problem, but there is one salient difference.

in japan, etc. if you see a kid with what looks like a gun, it is almost certainly a toy as there are very very few handguns in civilian hands, adult or children. that's indisputable.

in america, this is clearly NOT the case.

while responsible behavior with ANY gun (fake or otherwise) is important, that is a major difference between the countries.

William Z:

Why aren't "airsoft" guns a big problem with younger folks in Japan (or Hong Kong, or Korea), where they are immensely popular? Could it be that some kids in the US aren't taught to behave responsibly when using airsofts?

The problem isn't with the kids with airsoft or squirt guns. The problem is with others who might perceive a realistic-looking toy as a threat: i.e. police or real thugs who hang out at -- but tend not to live at -- SF housing projects (largely due to a lack of cooperation/coordination between local police and administrators of the federal housing program.

For instance, under Moore v. City of East Cleveland, the government may not pass laws that limit people's ability to live with their family members. But does it follow that a government agency may not condition leases in certain housing projects on a promise to limit occupancy to 1 or 2 people, or not to have children living there? Far from clear. (Maybe federal or state laws may preclude some such no-children policies, but I don't think the Constitution does.)

Moore is one of the sillier analogies. The Court struck down East Cleveland's law, which was clearly intended to prevent communes and such, because it wasn't well written. The goal of the law was NOT to ban grandparents from raising grandkids, but that's effectively what the law did, because someone didn't think of that possibility. I find the Moore decision not terribly persuasive.

Likewise, the First Amendment protects not just the right to speak, but also the right to run a bookstore. But I take it that the city may ban people from conducting businesses in their apartments, including businesses that involve the constitutionally protected sale of books. So I don't think that the analogy to one sort of First-Amendment-protected activity is sufficient to dispose of the issue.

The city can regulate the operation of businesses in public housing, certainly. But they could not ban residents selling books while allowing them to sell jewelry--that would be a clear violation of First Amendment protections. (They might be able to do the reverse, since jewelry enjoys no Constitutional protection.) In this case, the ban was on possession of arms, not on sales.

Does anyone know how these lease clauses read before this settlement? I'm guessing that the only changes were to insert "unlawfully" before "possessing firearms" - and the city keeps trying to make that category broader than even California laws allow. So the SFHA has transferred the litigation costs to other departments without giving up much.