Sunday, January 24, 2016

Can your Board of Directors Ban Guns in Your Community?


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.

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


  1. Donna,
    Great job this is a hot topic in some associations and it is always good to know the courts point of view.

  2. This is such a difficult issue as there are so many varying opinions and each individual's personal interpretation varies also. I do not think the bill would ever pass and if it did how would they check to see if the guns are being kept as directed? I myself am very mixed on this, as I do feel we need to maintain the rights provided to us as Americans by our founding fathers and we do not want to diminish any of our founding amendments or make our country and democracy appear to be weak. But of everything considered, I feel our children's safety and is so important as is our ability to be free to go to a movie or doctor's office or send our children to school and college without fear of an incident occurring. Times have just changed so much so fast and it seems our safety and our security & society has deteriorated to such a sub level as never before seen.
    I think anyone running for President, Congress, Senate, should try to enact the following 4 items to at least put some safety precautions in place;

    1. Annual or Bi annual background checks to ensure no felonies or domestic violence has occurred.

    2. Annual or Bi annual psychological tests to ensure the stability and mental capacity has not deteriorated or individuals are not a danger to themselves or anyone else

    3. Annual or Bi annual registration of all guns owned and kept

    4.Bi annual re-training and safety educational classes for gun owners along with a certification of said training and attendance of training

    These steps at a minimum should provide some support and sense of safety and oversight for gun owners and non owners alike. I mean if you are a legitimate and legal gun owner who follows the rules these things should not be of issue to you.
    I just cannot believe our congress and house of representatives & senate cannot agree or come up with ANY agreeable by partisan terms that would satisfy! To date our congress, house of representatives, congress and Washington representatives are all a disgrace and their non action and noncommittal bipartisan nonsense & bickering is costing us the people who put them their the lives of our children. Agree to disagree but do something, some action is better than no action on their part.

  3. sandi.maccalla@gmail.comMarch 3, 2016 at 12:43 PM

    Donna - thank you for the clarification in the blog. Many of the use restrictions and/or rules I've encountered do stipulate that an owner is prohibited from discharging weapons within the common area. In reality, I'm not sure how that would really work out in the heat of a defensive moment. However, is a Board prudent to retain this prohibition which generally was in the original governing documents? Is there any case law that has tested this out?

    1. Any rule or amendment regarding discharge of a weapon on common areas should clarify that the owner is not prohibited from doing so in the act of self-defense. One would assume that should a life-threatening event arise, an owner would react as needed rather than being stymied by a board rule or amendment but even so, properly wording the restriction to take into account self-defense couldn't hurt. There has been no caselaw in Florida on this issue to my knowledge.

  4. Nice post Donna,
    1) I think a lot more people will die from 300 million guns of various calibers than terrorists will ever kill.
    2) Maybe. I don't know. But I do know you can't have a specialized unit respond to every "man with a gun call." There are too many.
    3) Where is private gun ownership in American criminalized?!