[Eugene Volokh, 3/30/2004
09:49:16 AM]
(See posts that link to this one)
Can public housing residents be
denied the right to keep and bear arms: A week ago, in Lincoln
Park Housing Comm'n v. Andrew, the Michigan Court of Appeals
held that a public housing agency may bar its tenants from possessing guns.
The public housing agency, though, is governed by the Michigan Constitution of
1963, article 1, section 6 of which says "Every person has a right to keep and
bear arms for the defense of himself and the
state." The court dealt with the right to
keep and bear arms by reasoning that:
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 analysis, I think,
this can't be right: Under this reasoning the government could equally
entirely ban all guns, since the government has a compelling interest in
maintaining a safe environment for everyone, and since the court seems willing
to defer to the government's assertion that banning guns is a reasonable means
of serving that interest. But surely a court can't simply negate a
constitutionally secured right, not just in its peripheral or unusual
applications, but in its very core, simply by reasoning that the right is
dangerous. Presumably the right's presence in the state bill of rights
represents a constitutional judgment that every person has a right to keep and
bear arms for the defense of himself (or, in this case, herself)
despite the arguments (familiar in 1963 as they are today) that banning
guns is needed to "maintain[] a safe
environment."
The tougher question, it
seems to me, is whether the government acting in its capacity as landlord has
the power to completely prohibit the exercise of this constitutional right,
as a condition of using government property. This is the issue that
arises when the government tries to insist that tenants waive their Fourth
Amendment rights, see the controversial decision in Pratt v. Chicago
Housing Authority, 848 F. Supp. 792 (N.D. Ill. 1994) (holding such a
waiver requirement to be unconstitutional, despite its seeming popularity with
most tenants), or perhaps that they not live with relatives (such as
grandkids) other than their parents, spouses, and children (a condition that
the Court struck down when imposed by the government as to private property).
The Michigan court pointed, in another section of the opinion, to cases in
which "evictions by public housing authorities have been upheld as not
violative of the right of free association when such actions by the housing
association was part of their efforts to control crime." But as I read these
cases, they simply concluded that the right of association wasn't sufficiently
burdened when tenants are evicted for not taking sufficient steps to prevent
their guests and apartment-mates from committing crimes -- the cases didn't
allow categorical prohibitions on intimate association, so I'm not sure
they're an adequate precedent for upholding a categorical prohibition on the
exercise of a constitutional right
here.
This, of course, is another aspect
of the perennial "unconstitutional conditions" problem, which asks when the
government may insist that people waive their constitutional rights as a
condition of using government property or some government benefit -- a very
important question in a country where governments at all levels take and then
redistribute 25-30% of the GNP, and control a vast range of property that most
people have to use. It's an unusual and particularly interesting aspect,
though, especially since it cuts a bit across political lines: The right to
bear arms is generally most supported by conservatives and libertarians, while
restrictions on the government's power to attach conditions to its property
are generally most supported by
liberals.
Incidentally, since forty-four
of the 50 states have right to
bear arms provisions in their state bills of rights, this issue
will remain regardless of the outcome of the Second Amendment
debates.
*********************************************************************** Professor
Joseph Olson Hamline University School of
Law tel. (651)
523-2142 St. Paul,
Minnesota 55104-1284 fax. (651)
523-2236 < [EMAIL PROTECTED]>
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