Sunday, January 24, 2016

Can your Board of Directors Ban Guns in Your Community?

PART 1:

Florida lawmakers are considering several gun proposals in the 2016 Session. One bill would allow people with concealed-weapons licenses to carry guns on college and university campuses while another would allow individuals with those concealed-weapons licenses to openly and visibly carry those firearms.

Naturally, guns and all the emotions they evoke from both sides continue to generate media attention and heated personal and public debate. Since a large percentage of the American populace lives in mandatory association communities with those numbers growing, the question of whether or not a board of directors has the right or the responsibility to restrict association members and their guests from carrying and/or discharging firearms inside the community needs to be asked.

Constitutional issues typically are raised in a private residential community when a Board attempts to enforce a restriction and the violator claims that his or her constitutional rights are being trampled. What is often lost in translation is the fact that community associations are private entities and not state actors who would be bound by the U.S. Constitution to protect individual rights from infringement by the federal government or by a state or local government thanks to the Fourteenth Amendment which extends constitutional principles to the states. However, courts have found that the behavior of private actors can be challenged with constitutional arguments in three different circumstances state action through judicial enforcement, the public function test, and the state involvement test.

Let me be clear at this point in my blog post that it is virtually impossible to completely analyze even a small portion of the constitutional issues which pertain to gun ownership in the space allotted in a blog format. If constitutional claims have been raised as a defense in your community to the enforcement of any type of restriction, it is important for you to speak to an association attorney experienced in this area.

Hopefully, this blog post will spark a conversation between your board, manager and association attorney when this issue eventually comes up in your community.

CAN THE BOARD OF DIRECTORS PROHIBIT GUNS INSIDE YOUR UNIT?
The short answer is no, the Board (and even the members via an amendment to the governing documents) likely cannot prohibit owners from keeping guns inside their units/homes as the U.S. Supreme Court has held the right to keep a firearm in one's home to protect that home and its inhabitants is a fundamental right.

In 2008, the United States Supreme Court, in the landmark case of District of Columbia v. Heller, 554 U.S. 570, addressed an individual's Second Amendment rights. Heller involved two separate gun laws in Washington DC. One of those laws was an outright ban on handguns in Washington DC; the other was a law which required guns to be unloaded and disabled while stored in the home. Heller was a police officer in Washington DC who challenged these laws. This Supreme Court opinion is probably the most important case interpreting the Second Amendment.

Scalia wrote the opinion and he used his typical originalist interpretation to look at why the Second Amendment guaranteed the right to bear arms. Most folks are familiar enough with the Second Amendment to recognize that it guarantees the "right to bear arms". However, the first part of the sentence is instructive: "a well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." In the Heller opinion, Scalia looks at that first part of the sentence and he finds that the original reason for the right to bear arms is self-defense Long story short, Scalia argues that a disabled and unloaded gun will not be very useful if a burglar breaks into your home and you quickly need your gun for self-defense. He also found the ban on handguns to have no rational basis as they are often the weapon of choice for people who carry a gun in self-defense. Both gun laws were ruled unconstitutional by the opinion Scalia authored.

Scalia further said in dicta that the right to protect one's home in self-defense is especially important and has special protection in the Constitution. Having a gun in your home for self-defense is seen as a fundamental right. Thus, a law (or in the community association arena-a covenant or rule) that prevented people from having guns in their own home would come under even stricter scrutiny. Given the clear and unambiguous direction laid out by the Supreme Court on the issue of maintaining a gun inside one's home, it is hard to fathom how a Board's ban on keeping loaded guns in one's unit or home (even one resulting from an amendment to the governing documents approved by the members) would pass constitutional muster.

Stay tuned for Part II of this blog post- Can the Board of Directors restrict or prohibit firearms on the common areas