University of Idaho Law Student Challenging Ban on Possession of Guns in On-Campus Housing

So reports the Daily Caller; I got a copy of the complaint, and I see that the student is suing both based under the Second Amendment and under the Idaho Constitution. The Idaho Constitution has long been interpreting as securing an individual right to keep and bear arms in self-defense, including to carry guns in public (though not necessarily concealed); Idaho might likewise be willing to interpret it broadly even when it comes to possession in government-owned housing, perhaps more broadly than federal courts might interpret the Second Amendment.

I think the student (Aaron Tribble) might well have a strong case, though not open and shut, as you can see from some of the citations in this excerpt from my Implementing the Right to Keep and Bear Arms in Self-Defense article (footnotes noted using curly braces):

Some government-run housing projects impose lease conditions barring tenants from possessing any guns in their apartments. {See, e.g., Doe v. Portland Hous. Auth., 656 A.2d 1200, 1201 (Me. 1995) (holding such a lease condition to be preempted by state firearms law); Stipulation Re Settlement, Doe v. S.F. Hous. Auth., No. 3:08-cv-03112-THE (N.D. Cal. June 27, 2008) (agreeing to eliminate such a lease condition); Richmond Tenants Org., Inc., v. Richmond Redevelopment & Hous. Auth., 751 F. Supp. 1204 (E.D. Va. 1990) (upholding such a lease condition against a statutory challenge, but not considering the Virginia Constitution’s right to bear arms), aff’d, 947 F.2d 942, 1991 WL 230214 (4th Cir. 1991) (unpublished); Tex. Op. Att’y Gen. DM-71 (1991) (concluding such a lease condition is barred by state law).}

Illinois allows firearms in public housing, but bans stun guns. Aurora (Illinois) bans possession in public housing of firearms, stun guns, and even pepper spray. Louisiana and Lincoln (Nebraska) domestic violence shelters ban both guns and stun guns. Guns are also banned on other government property, including places where the risk of crime may be quite substantial, such as government-owned parks (both city parks and national parks). How much extra power should the government’s role as proprietor give it in such situations? How much extra power should the government’s role as proprietor give it in such situations? {See Mich. Coal. for Responsible Gun Owners v. City of Ferndale, 662 N.W.2d 864, 871 (Mich. Ct. App. 2003) (suggesting that the government might be able to “create gun-free zones,” in case involving ban on possession in city buildings, but not definitively reaching the constitutional question because it found the ordinance was preempted); Tenn. Op. Att’y Gen. No. 04-020, at *2 (2004) (concluding that “the State has authority to prohibit or regulate the possession and use of firearms on property that it owns”).}

I don’t know what the right answer is, but I can point to two wrong or at least incomplete answers. The first comes from a 2004 [Michigan] unpublished appellate decision that used a danger reduction rationale to uphold a ban on gun possession in public housing projects:

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 can’t be a sound argument, because it doesn’t explain why public housing projects are any different from private housing, where the right to keep and bear arms is indeed protected under the Michigan Constitution [and the Second Amendment]. After all, the right to bear arms is constitutionally protected even though the government has a legitimate interest in “maintaining a safe environment” for everyone, and there are few “environment[s] and circumstances” in which guns lose their dangerousness.

{The same criticism applies to the Maine Superior Court’s conclusion that a ban on gun possession in public housing is constitutional. Doe v. Portland Hous. Auth., No. CV-92-1408, 1993 Me. Super. LEXIS 359 (Me. Super. Ct. Dec. 29, 1993), rev’d on statutory grounds, 656 A.2d 1200 (Me. 1995). There too the court’s reasoning would have equally upheld gun prohibitions imposed even on private property (not just government-owned property), though perhaps limited to dangerous apartment buildings: The court reasoned that the ban was a “reasonable … regulation” given that (1) the housing complexes “have unique tendencies for violence and even criminal behavior that specially threaten the health, safety and welfare of the residents,” stemming from “the congregate closeness of the living arrangements and the resulting relationships among the residents[, which] tend to generate an atmosphere of volatility,” and (2) the special complexes for “senior citizens and the disabled” house many people who have “mental or emotional problems” which leads “to assault, vandalism, rowdyism and similar disturbances.” Id. at *19, 21-22. But it’s hard to see how the Maine Constitution’s expressly individual right to bear arms could rightfully be denied to non-criminal, non-mentally-ill people simply because they have the poor fortune to live around dangerous people — precisely the scenario where the right to bear arms is most useful to a law-abiding citizen.

Certain kinds of guns and ammunition may be especially dangerous in apartment buildings, whether publicly or privately owned, because the apartments are separated by only a single wall; this increases the risk that a bullet would injure or kill a neighbor. But this concern has never been seen as justifying total bans on all gun possession in all apartment buildings. And it would in any case not justify bans on shotguns, which fire small pellets that are highly unlikely to go through a wall or retain their lethality even if they do. Likewise, it wouldn’t justify bans on handguns that are loaded with special frangible ammunition, which is designed to similarly not go through walls.}

The second wrong (or at least incomplete) approach comes from the Oregon Attorney General’s opinion that a ban on gun possession in public housing would be unconstitutional:

It is well settled that the government may not condition entitlement to public benefits, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action. The United States Supreme Court has repeatedly upheld that principle under the United States Constitution….

… Although the Oregon Supreme Court has not ruled on the issue directly, from [various state court] authorities we believe that, if faced squarely with the question, the court would hold that this “unconstitutional condition” principle applies under the Oregon Constitution….

Eligibility for low-income housing provided by a housing authority plainly is a public benefit or privilege. Subject to certain federal limitations, a housing authority lawfully may condition eligibility for low-income housing on satisfaction of income criteria and other factors designed to ensure that only responsible tenants reside in that housing. However, we conclude that a housing authority may not require an otherwise-eligible individual to surrender rights under article I, section 27 in order to obtain low-income housing. {46 Or. Op. Att’y Gen. 122, 127-28 (1988); see also Ark. Op. Att’y Gen. No. 94-093 (1994) (expressing uncertainty about whether a ban on firearms in public housing would be unconstitutional).}

The problem here is that, though all the cases cited by the Oregon Attorney General indeed rejected government demands that someone waive a constitutional right to get a benefit, many other cases uphold such demands. A plea bargain may be conditioned on a waiver of the right to trial. Welfare benefits, or membership on a high school sports team, may be conditioned on a waiver of some parts of the recipient’s rights to be free from searches without probable cause. A government paycheck may be conditioned on a promise not to reveal certain things the employee learns in confidence.

More broadly, the government may sometimes refuse to allow the exercise of constitutional rights on its property, especially setting aside traditionally open places such as parks and sidewalks. It could, for instance, insist that abortions not be performed in government-owned hospitals. It could bar a wide range of speech in government buildings.

Public housing might be treated specially, because it is a home as well as a government building, or because it is the sort of government benefit that is unusually important to those who use it. This has been the view of cases striking down at least certain kinds of speech restrictions and search and seizure policies in public housing. {E.g., Resident Action Council v. Seattle Hous. Auth., 174 P.3d 84 (Wash. 2008) (striking down ban on posting material on the outside of one’s public housing apartment door); Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding that warrantless searches for guns in public housing units are likely unconstitutional, and silently assuming that the Fourth Amendment rules are the same in publicly owned housing as they are in other homes).} But still, while the Oregon Attorney General probably reached the right result in concluding that public housing authorities can’t require their tenants to surrender the right to bear arms, the unconstitutional conditions analysis in that opinion too categorically rejects the government-as-landlord claim, just as the Michigan opinion quoted above too categorically rejects the constitutional right claim.

It’s not clear to me how other public property should be treated: Should the government be allowed to ban guns on government-owned recreational land, whether a city park or a national park, either by insisting that people who want to use the land must waive their right to bear arms, or by otherwise concluding that there is no right to bear arms in such places? As a condition of going onto a public university campus, which might have a considerable amount of open space and parking areas where crime is not uncommon?

In public university dorm rooms, where one state attorney general’s opinion suggests gun possession is constitutionally protected? {See La. Op. Att’y Gen. No. 94-131 (1994) (suggesting that Second Amendment protects university student’s right to possess guns in dorm rooms).} As a condition of going onto a public primary or secondary school campus, or into a government office building, especially when this requires walking unarmed through a potentially dangerous parking structure? Courts need to work out a government-as-proprietor doctrine for the right to bear arms much as they have done for the freedom of speech.

Of course, even setting aside the merits, what a fun extracurricular project for a law student!

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