The Volokh Conspiracy

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Challenge to Gun Ban in East St. Louis Public Housing

The anonymous plaintiff offers a pretty compelling factual story -- but the legal analysis is surprisingly unsettled.


Some public housing projects ban tenants from possessing guns. Does that violate the Second Amendment (or similar state constitutional right to bear arms provisions)?

The just-filed Complaint in Doe v. East St. Louis Housing Auth. (S.D. Ill.) may yield an answer—unless the housing authority changes its policy, as San Francisco and Warren County (Illinois) had done. Here's an excerpt from the Complaint:

[2.] Plaintiff N. DOE, filing anonymously, is a resident of Auburn Terrace, a public housing facility in East St. Louis, Illinois, administered by the East St. Louis Housing Authority. She is a customer service representative for a medical supply distributor, who due to health issues of her family and herself, became in need of governmental assistance in the form of subsidized housing. She has a valid Illinois FOID card, and has trained and educated in the safe use of firearms. She wishes to possess a handgun in her residence for self-defense, and did at one point, but has been forced to refrain from doing so due to the threat of losing her subsidized housing. At the present time, she resides with her two teenage children in her residence….

[6.] N. DOE has an ex-husband who was incarcerated for murder. He was released on probation, and during that time was violently abusive to N. DOE on multiple occasions, including choking her to unconsciousness, and beating her so badly that she had internal bleeding. He threatened, on multiple occasions, to kill N. DOE and her two children if she ended her relationship with him. As a result of this violence, he was returned to prison with his probation revoked. He has since been released, and N. DOE has recently received word that he is still "very angry" with her and is looking for her.

[7.] Further, in January, 2017, N. DOE was beaten and raped in her home by a family acquaintance, who decided that since N. DOE was suffering from a hand injury, that she was unable to fight back. During the rape, N. DOE was able to call for help from her children, who stopped the attack by threatening to brandish the firearm, that at the time was in the residence, at the attacker and getting the attacker to leave N. DOE's residence.

[8.] On two occasions, N. DOE has to call the police due to shootings in nearby residences. Shootings are common enough to be called routine in the subject ESLHA property….

[17.] Section IX.(p) of the ESLHA Lease, entitled "RESIDENT'S OBLIGATIONS," requires that N. DOE is "[n]ot to display, use, or possess or allow members of [DOE's] household or guests to display, use, or possess any firearms, (operable or inoperable) … anywhere in the unit or elsewhere on the property of the Authority."

[18.] Section XI.E. of the ESLHA Lease, entitled "SPECIAL INSPECTIONS," states that "ESLHA staff may conduct a special inspection for any of the following reasons: … Suspected lease violation."

There is little law on the subject, and it's mixed:

[A.] Constitutional rights generally seem to apply to public housing, though there have been few cases on the subject. See, e.g., Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding that the Fourth Amendment barred warrantless sweeps through public housing projects); Resident Action Council v. Seattle Hous. Auth., 174 P.3d 84 (Wash. 2008) (evaluating restriction on public housing residents' posting materials on the outside of their apartment doors the same way the U.S. Supreme Court had evaluated restriction on private residents' rights to post materials in their windows).

[B.] A 2014 Delaware Supreme Court decision held that public housing tenants have a right to bear arms under the Delaware Constitution's right to bear arms provision—"A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use"—even in common areas of the building. (The court noted that the Delaware Constitution's language may justify broader protection than that given by the Second Amendment, and indeed a federal district court had upheld the ban on gun possession in common areas under the Second Amendment; but given the individual rights reading of the Second Amendment in D.C. v. Heller, I'd view the Delaware Supreme Court's reasoning as potentially influential in other states, too.)

Nonetheless, the main limitation of the case is that the government "conceded that after [McDonald v. City of Chicago], as a landlord it may not adopt a total ban of firearms." This meant that the Delaware court didn't focus on analyzing whether banning guns in people's public housing apartments was unconstitutional; instead, the court reasoned that, accepting that the inside-apartment ban would be unconstitutional, a ban on possession in common areas was, too.

[C.] A nonprecedential 2004 Michigan appellate court decision upheld a ban on gun possession in public housing against a challenge based on the Michigan Constitution's right to bear arms provision ("Every person has a right to bear arms for the defense of himself and the state"):

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.

But this can't be a sound argument, because it doesn't explain why governmental restrictions on guns in public housing projects are any different from governmental restrictions on guns in private housing. After all, the government has a "legitimate interest" in "maintaining a safe environment" for everyone; there are few "environment[s] and circumstances" in which guns lose their dangerousness; and the government's "police power" extends to private property as well as to government property. Yet the government can't just ban guns in private housing using the argument given above—and the Michigan opinion doesn't explain why the rules for guns in public housing should be any different.

(A Maine trial court took the same view in 1993, but its analysis was similarly weak.)

[D.] A 1988 Oregon Attorney General opinion, applying the Oregon Constitution's right to bear arms ("The people shall have the right to bear arms for the defence of themselves"), took the opposite view from the Michigan court:

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.

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.

I'm inclined to think that the Oregon AG reached the right result: Public housing is a home as well as a government building, and government control over people's exercise of their constitutional rights in their homes—as a condition of getting a benefit that may often be economically necessary for them—is an especially serious burden. Indeed, even the case that allowed some restrictions of rights in the home as a condition of an economically necessary benefit, Wyman v. James (1971), stressed the narrowness of the intrusion: The case held that the Fourth Amendment did not bar a policy under which welfare recipients had to allow home visits by case workers; but the Court stressed that the nature of the "search" was quite limited, with the case worker limited to seeing what can be seen in plain view, rather than "snooping." I doubt that this could be properly extended to a categorical prohibition on the exercise of all of one's Second Amendment rights in one's home.

Nonetheless, the analysis has to be more careful than what the Oregon opinion offers, precisely because the precedents on whether "the government may … condition entitlement to public benefits, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action" are so mixed.

[E.] Finally, I think a public housing authority could regulate guns that it sees as especially dangerous in its buildings, where apartments are separated by only a single wall, which 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. 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. And it wouldn't justify bans on handguns that are loaded with special frangible ammunition, which is designed to similarly not go through walls.

For citations to some of the sources mentioned above, see my Implementing the Right to Keep and Bear Arms article, pp. 1529-33.