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San Francisco Housing Authority Allows Lawful Gun Possession by Residents:

See this settlement agreement in Doe v. San Francisco Housing Authority, filed Monday. Congratulations to Chuck Michel on a big victory.

Congratulations also, again, to Alan Gura on his victory in D.C. v. Heller, which I think helped bring this about. DailyPundit (Bill Quick) seems to be correct: This result undermines the claims, which I've often heard, "that Heller did not have any effect."

Of course it's possible that the San Francisco Housing Authority thought it would win at trial but settled for other reasons, such as a judgment that the policy was a bad idea or was bad politics; but on the facts as I know that, I'm skeptical that the Authority would indeed make such judgments. My suspicion is that the risk of a Second Amendment defeat must have played a pretty substantial role in the Authority's decision, though I should also note that such a defeat would have not been at all certain (given that it's not clear that courts will say that the Second Amendment is incorporated against the states via the Fourteenth Amendment, and that the Amendment binds the government as proprietor, even proprietor of people's homes).

Thanks to InstaPundit for the pointer.

ThreeOneFive (mail):
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.
1.14.2009 1:57pm
hawkins:
Would it always be unconstitutional for a city to condition eligibility for certain benefits on forfeiting a constitutional right?
1.14.2009 2:30pm
Eugene Volokh (www):
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.
1.14.2009 2:44pm
zippypinhead:
I'd be surprised if SFO settled -- and scuttled its cherished no-guns policy -- just to save litigation costs. After all, when has San Francisco ever done ANYTHING just to conserve taxpayer money?

More likely the city was terrified of making some REALLY bad (from their perspective) law, including incorporation of Heller and running an undue risk of a potentially broad ruling that in effect prohibits firearms regulation inside residences in general.
1.14.2009 3:08pm
Oren:
hawkins, sometimes yes, sometimes no.
1.14.2009 3:17pm
Soronel Haetir (mail):
I too would be skeptical of money saving as the rationale. SF had no problem litigating their general handgun ban to a loss.
1.14.2009 3:31pm
vassil_petrov (mail):
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?
1.14.2009 3:39pm
Oren:
vassil -- yes. So are restrictive bail/parole conditions.
1.14.2009 3:40pm
Soronel Haetir (mail):
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.
1.14.2009 3:41pm
Cornellian (mail):
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. 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.
1.14.2009 3:47pm
Clayton E. Cramer (mail) (www):

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?
1.14.2009 6:17pm
Putting Two and Two...:

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


Obviously, whatever they were smoking, they didn't want someone to try to extinguish it from a distance...

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.
1.14.2009 6:34pm
Eugene Volokh (www):
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.
1.14.2009 6:35pm
Shelby (mail):
What are they smoking in San Francisco city government?

Much as I think foolish decisions by local governments are often driven by complex factors, in this case it's just a matter of guns're BAD, mmkay? That's about the extent of thought that goes into the city's gun policy.

Disclaimer: I used to live in SF, and remain fond of it despite this kind of stupidity.
1.14.2009 6:36pm
whit:

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.
1.14.2009 7:37pm
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 object itself is not the problem, its the person using it to cause problems.

Back to the topic...

Some anti-gun group is probably advising the folks in SF, but it seems DC is not taking similar advice, trying to adopt CA's handgun rostering and "assault weapons" ban. With respect to prop h, SF's handgun ban, I think SF knew what the end result would be, so they had no problem wasting the people's money on their twisted ideological grounds. Here, its different, because of Heller, and some idiotic spewing by one of the 9th's judges in a previous case, makes the outcome uncertain (though leaning towards a win for CD Michel and company).
1.14.2009 7:58pm
whit:

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.
1.14.2009 8:05pm
MikeS (mail):

Why aren't "airsoft" guns a big problem with younger folks in Japan (or Hong Kong, or Korea), where they are immensely popular?


Because there aren't as many real guns on the streets there, so the AirSofts are less likely to be mistaken for the real thing and draw the wrong kind of attention.
1.14.2009 9:02pm
Putting Two and Two...:
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.
1.14.2009 9:20pm
Gene Hoffman (mail) (www):
Enh... As long as the Second Amendment incorporation question doesn't face Justice Volokh, I think we'll soon see the 2A in the states.

But ask me again in 24 hours...

-Gene
1.15.2009 3:36am
Clayton E. Cramer (mail) (www):

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.
1.15.2009 12:49pm
Clayton E. Cramer (mail) (www):

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.
California has banned sale of realistic toy guns for many years. And this measure banned even Super Soakers, which will never be mistaken for a real gun.
1.15.2009 12:51pm
Clayton E. Cramer (mail) (www):

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.
1.15.2009 12:58pm
Andy Freeman (mail):
> My suspicion is that the risk of a Second Amendment defeat must have played a pretty substantial role in the Authority's decision

It's unclear why SF would actually care about this risk unless SF has a generic interest in Second Amendment law.
1.15.2009 1:08pm
markm (mail):
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.
1.16.2009 5:37am
Clayton E. Cramer (mail) (www):

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.
So the old version prohibited unlawfully possessing water pistols?
1.16.2009 10:54pm

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