The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Public Housing Complexes May Not Ban Gun Possession by Tenants

So holds the Tennessee Court of Appeals.


From today's decision in Columbia Housing & Redevelopment Corp. v. Braden, decided today by the Tennessee Court of Appeals, in an opinion by Judge Frank G. Clement, Jr., joined by Judges Andy D. Bennett & W. Neal McBrayer:

On April 19, 2018, Kinsley Braden signed a lease agreement with Columbia Housing for the privilege of residing at 103 West Willow Street in Creekside Acres. The lease agreement incorporated by reference the Community Housing Rules, which prohibited, inter alia, any resident from possessing a firearm on the premises. In relevant part, the Community Housing Rules read: "No Weapons & Firearms. The possession or use of any type of weapon, firearm, or dangerous object is strictly prohibited within the boundaries of the property."

On November 4, 2020, Columbia Housing learned that Mr. Braden had been keeping a handgun in his residence. As a result, Columbia Housing filed a Detainer Summons against Mr. Braden, seeking to evict him ….

The lower court ruled for Columbia Housing, but the appellate court ruled for Braden, reasoning:

Columbia Housing is a government entity acting as the landlord of the Creekside Acres residences…. For this reason, the actions of Columbia Housing and the policies of Creekside Acres must conform to the Constitution….

[T]he circuit court reasoned that by agreeing to the Community House Rules in the lease agreement, which prohibit possession of a firearm within the leased premises, "Mr. Braden voluntarily waived any rights he may have to possess a firearm on the premises." However, in reaching this conclusion the circuit court did not consider the unconstitutional conditions doctrine, which "prevent[s] the government from coercing people into giving" up constitutional rights..

The unconstitutional conditions doctrine provides that a governmental entity "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests." Perry v. Sindermann (1972); see Dolan v. City of Tigard (1994) (explaining that "the government may not require a person to give up a constitutional right … in exchange for a discretionary benefit")….

Thus, unless an exception applies, requiring Mr. Braden to surrender the "central component" of his Second Amendment rights for the benefit of public housing is an unconstitutional condition. See also Holt v. Richmond Redev. & Hous. Auth. (E.D. Va. 1966) ("[A] tenant's continued occupancy in a public housing project cannot be conditioned upon the tenant's foregoing his Constitutional rights.").

One such exception is the concept of "sensitive places," a concept Columbia Housing relies upon to justify its prohibition. In Heller, the Supreme Court held that the government could constitutionally prohibit possession of firearms in "sensitive places." Under this exception, numerous courts have held that laws "forbidding the carrying of firearms in sensitive places such as schools and government buildings" do not violate the Second Amendment. Moreover, and significantly, some scholars believe that the "sensitive places" concept may apply to public housing. See Jamie L. Wershbale, The Second Amendment Under a Government Landlord: Is There a Right to Keep and Bear Legal Firearms in Public Housing?, 84 St. John's L. Rev. 995, 1018–20 (2010).

More recently, however, the Court in Bruen clarified that, when determining whether a place is a "sensitive place," courts should look to those places where weapons were historically "altogether prohibited" and determine whether it is "settled that [certain] locations were 'sensitive places,'" then "use analogies to those historical regulations of 'sensitive places' to determine [whether] modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible." Thus, we must determine whether handguns have been historically prohibited in public housing.

Public housing constitutes both an individual's home and a building owned by a state's government; however, it remains largely unsettled whether public housing developments could constitutionally prohibit firearm possession under both the Second Amendment to the United States Constitution and nearly identical provisions of certain state constitutions. See, e.g., People v. Cunningham (Ill. App. Ct. 1st Dist. 2019) (holding that a statute prohibiting visitors to public housing units from possessing firearms on the property did not violate the Second Amendment); Doe v. Wilmington Hous. Auth. (Del. 2014) (concluding that the Delaware Constitution prohibited public housing authorities from banning firearms in public housing developments); Lincoln Park Hous. Comm'n v. Andrew (Mich. Ct. App. 2004) (per curiam) (holding that a prohibition on firearm possession in public housing passed constitutional muster under the Michigan Constitution). Noticeably, various states have come to different conclusions regarding whether a ban on firearm prohibition within a public housing development is permissible. Thus, it cannot be said that public housing developments have historically "altogether prohibited" possession of firearms on the property.

Moreover, while the United States Supreme Court has identified "legislative assemblies, polling places, and courthouses" as "sensitive places," the Court has continued to emphasize that the Second Amendment must protect the right of "law-abiding citizens to use arms in defense of hearth and home." For this reason, we cannot say that an individual's public housing unit is analogous to that of other established sensitive government buildings. Thus, in light of the Supreme Court's most recent decision in Bruen and keeping in mind the presumptively unconstitutional status of Columbia Housing's policy based on the Supreme Court's decision in Heller, we conclude that a total ban on the ability of law-abiding residents—like Mr. Braden—to possess a handgun within their public housing unit for the purpose of self-defense is unconstitutional under the Second Amendment….

Note that the court doesn't resolve whether much more modest restrictions, such as requirements that any guns be loaded with rounds that are designed to minimize the risk of going through walls, might be constitutional. (The government as landlord does have some extra power, stemming from its ownership interests, to control behavior on its property, including constitutionally protected behavior, though the court pointed out that this power is not unlimited.) For more, see pp. 1473-75 and 1529-33 of this article.

Congratulations to David G. Sigale and Eugene R. Hallworth, who represented the tenant.