The Volokh Conspiracy
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Second Amendment Protects Public Housing Tenants
The public Cortland Housing Authority (near Syracuse) required its tenants not to possess "firearms … or other weapons as defined by the laws and courts of the State of New York" on its property. In Hunter v. Cortland Housing Authority, decided Jan. 30, 2024 (though I somehow missed it), Judge Glenn Suddaby (N.D.N.Y.) held that this likely violates the Second Amendment,
First, as a threshold matter, the Court has trouble accepting defense counsel's argument that "[p]ublic housing … was assuredly not something that our Founding Fathers could have contemplated at the time of the drafting of the Constitution or the time of the drafting of the Second Amendment, [because] it just did not exist. Publicly-funded housing for low-income families was not … on their radar …. [A]s Justice Thomas said, it's a new circumstance in our modern society." To the contrary, in numerous states, past generations appear to have provided publicly funded housing for low-income families and individuals—albeit likely for less-definite terms of duration than in modern public housing—in the form of places such as publicly supported "almshouses," poor-houses, and poor-farms. Even if such historical analogues could be fairly characterized as "historical twin[s]" or "dead ringers," other relevant similarities would appear to exist to any historical regulation of firearms in boarding houses or the residences of indentured servants.
Granted, the Court does not demand that Defendants show that firearms were traditionally banned in these analogous places. The Court is dutifully mindful of the Second Circuit's criticism of reasoning from "historical silence." For example, lawmakers may not have been moved to forbid the possession of firearms by people who could not afford to own them, or the possession of firearms at locations where the firearms owner resided at the whim of a cautious or peace-keeping property owner. However, one would imagine that a thorough analysis of the Firearms Ban in question would at least start with an acknowledgment that any historical regulations of firearms in the above-referenced almshouses, poor-houses, and poor-farms would be relevantly similar to the Firearms Ban: after all, both the historical and modern regulations would impose a comparable burden (i.e., denying one the ability to defend oneself in one's—potentially congested—publicly funded residence through the use of a firearm), and both the historical and modern regulations would carry a comparable justification (i.e., preventing the unwarranted danger to others in close proximity to oneself due to the non-defensive use of a firearm).
However, Defendants do not acknowledge the existence of those relevant similarities, much less try to posit the reason for the apparent dearth of such historical analogues. Instead, Defendants argue that both the fact of public housing and the rate of gun violence therein are wholly unprecedented, necessitating the "more nuanced approach" permitted by the Second Circuit in Antonyuk and the Supreme Court in Bruen; and then Defendants leap to a comparison of the modern firearms regulation to a non-firearms regulation (specifically, the regulation of the fundamental right of a family to live as a family).
Even if the Court were to agree that a "more nuanced approach" is appropriate here, the Court has trouble accepting Defendants' argument such an approach constitutes a license for them to analogize the Firearms Ban to a non-firearm regulation, under the circumstances. In addition to the fact that four closer analogies appear to exist (again, the regulation, or lack of regulation, of firearms in almshouses, poor-houses, poor-farms, boarding houses, and indentured-servant residences), neither the Second Circuit in Antonyuk nor the Supreme Court in Bruen analogized the firearm regulations at issue there to a non-firearm regulation. Indeed, to the contrary, both the Second Circuit and Supreme Court expressly tied each part of the "metrics" analysis that it would be using to a firearm regulation.
Second, in any event, the Court is dutifully mindful of the Second Circuit's directive that "courts must be particularly attuned to the reality that the issues we face today are different than those faced in … the Founding Era, the Antebellum Era, and Reconstruction …. Thus, the lack of a distinctly similar historical regulation, though (again) no doubt relevant, may not be reliably dispositive in Second Amendment challenges to laws addressing modern concerns." The Court is also mindful of the Supreme Court's similar directive that "the Constitution … must … apply …." As a result, the Court will faithfully trace the analytical inquiry proposed by Defendants.
The Court understands the required analytical inquiry (which involves the aforementioned "metrics" analysis) to essentially set forth a proportionality test, requiring a measurement of whether the burdensomeness of the modern statute (i.e., its burdensomeness compared to its justification) is reasonably proportionate to the burdensomeness of its historical analogues (i.e., their burdensomeness compared to their justification). The Court further understands Defendants' argument to be essentially that the government may currently limit one's Second Amendment right to possess a handgun in self defense in one's publicly funded home even though the government could not historically do so in one's home, just as the government may currently limit one's fundamental right (presumably under the substantive Due Process Clause of the Fourteenth Amendment) to live with one's family in a publicly funded home (e.g., based on a family member's status as a convicted drug offender or sex offender) even though the government could not historically do so in one's home.
For the sake of brevity, the Court will not linger on the lack of relevant similarity between limiting a right of criminal convicts and limiting a right of law-abiding, responsible citizens. The bigger problem with Defendants' analogy is that they have not persuaded the Court that, during the time periods in close proximity to 1791 and 1868, the government was never permitted to limit one's fundamental right to live together with one's family. As an initial matter, it is somewhat unclear whether defense counsel is arguing that the fundamental right to family under the substantive Due Process Clause of the Fourteenth Amendment is as longstanding as the right to keep and bear arms under the Second Amendment.
In any event, for the sake of argument, the Court will assume that the fundamental right to family preceded the right's formal recognition by the Supreme Court in 1923. After all, the Court is dutifully mindful of the Second Circuit's finding in Antonyuk that "it is implausible that the public understanding of a fundamental liberty would arise at a historical moment, rather than over the preceding era." Even so, the historical record appears to indicate that, during the times in question, in at least some publicly funded almshouses, children could be separated from their families. As a result, one cannot confidently reason that the government's current limitation on one's fundamental right to family in a publicly funded home is such a permissible departure from the government's historical ability to limit one's fundamental right to family that the departure warrants a commensurate invasion of one's Second Amendment rights.
Simply stated, instead of meeting their burden of establishing that the modern regulation is consistent with the National tradition, Defendants base their justification for their Firearms Ban on half of a historical analogy (to a non-firearms regulation, no less), which actually seems to undermine their case. More-persuasive historical analogues appear to be those firearms regulations that expressly made exceptions for the possession of firearms in one's home or residence, and even one's boarding house. They do not include regulations prohibiting firearms merely in government buildings. See Columbia Hous. & Redevelopment Corp. v. Braden (Tenn. Ct. App. 2022) ("[W]e cannot say that an individual's public housing unit is analogous to that of other established sensitive government buildings [for purposes of Bruen] …. [W]e 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.").
{The Court notes that, while their orders are of little precedential effect, at least two other federal district courts have approved stipulations enjoining similar public-housing lease provisions as unconstitutional under the Second Amendment. See Doe v. East St. Louis Housing Authority (S.D. Ill. 2019) ("The Court concludes that the Stipulation should be approved, and judgment should be entered in favor of Plaintiffs."); Montag Doe v. San Francisco Housing Authority (N.D. Cal. 2009) ("Defendant SFHA shall not at any time enforce the provisions of [the Model Lease Agreement] relating to the lawful possession of firearms and other arms or weapons.").}
Third, Defendants' justification also teeters precariously on their assertion that the Firearms Ban is not "categorical" in nature (given that tenants may supposedly possess rifles, shotguns and crossbows on CHA property without breaching the lease). [This refers to the government's argument that under New York law "firearm" refers to handguns, short-barreled rifles or shotguns, or "assault weapon[s]"; see also plaintiff's counterargument. -EV.] Even if the Court were persuaded by this assertion[, which it is not], the Supreme Court in Heller specifically rejected it as a ground for finding such a firearms regulation constitutional:
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
Fourth, and finally, the Court does not understand Plaintiffs to be arguing that they may, under the Second Amendment, bear a firearm in self-defense in the common areas of CHA property. Rather, the Court understands Plaintiffs to be arguing that merely that they may, under the Second Amendment, securely transport their firearms to and from their home through the common areas of CHA property, in compliance with New York State law. As a result, the injunction that the Court issues is narrowly tailored to preserve that right. {Cf. Doe v. Wilmington Housing Authority (D. Del. 2012) ("In the Court's view, this case presents exactly the type of situation that merits the application of intermediate scrutiny. The Revised Policy, including the Common Area Provision, does not impose a complete ban, expressly recognizes a right to possess firearms in the home, and provides an exception for self-defense. Hence, the Revised Policy preserves the 'core' of Plaintiffs' Second Amendment rights…. [T]he Revised Policy does not severely limit those rights inside the home—or come close to the level of infringement struck down in Heller …."); rev'd in part on other grounds (3d Cir. 2014).}
