Now that the Supreme Court has said in no uncertain terms that average, everyday citizens of the United States possess not only the right to keep a gun in the home for self-defense but to bear arms in public as well, the anti-gun lobby is going to have to get creative in order to curtail the exercise of those rights. Unfortunately for those of us who support the Second Amendment, our opponents have pretty good imaginations when it comes to inventing new restrictions on our centuries-old right, and one suggestion that’s being floated could actually be implemented without putting any new laws on the books in most states.
I ran across this particularly bad idea at the inadvertently appropriate website “City Limits,” where author David Brand pondered whether in a city like New York, where only about 1 in 3 residents own their home or apartment, landlords might be able to stop a mass movement towards gun ownership by imposing gun bans in rental properties.
Experts who spoke with City Limits say owners can ban guns as a condition of a lease because they are imposing restrictions on their own private property, though some said the high court could someday determine that the Second Amendment—at least as it is interpreted by the six justices on the bench who ruled in favor of gun enthusiasts—could supersede those ownership rights.
“A landlord is just like any business owner—a restaurateur, a movie theater owner, an amusement park,” said Andrew Lieb, a New York-based constitutional lawyer and real estate attorney. “The Second Amendment is only about government restrictions on your rights.”
Lieb said landlords can add a “no guns” provision to leases as long as the same rules apply to everyone in a multi-unit building. “I’m as confident in that statement as I am that there is no alien in my room right now,” he added. (Then again, a House Intelligence Committee recently held a hearing on UFOs. We live in interesting times).
Lieb said it may not be possible for a property owner to actually enforce a “no guns” rule, but the lease language could protect them from liability if someone is killed or injured by a renter or guest with a gun.
“I would think that it becomes standard in leases across New York City and elsewhere,” Lieb said. “The reason you would do it is because of liability and indemnification…It’s because of money, not because of principle.”
If that comes to pass, it’s going to be the middle and working-class who suffer the greatest deprivation of their rights. Those on the upper end of the economic spectrum can afford to buy and not rent if they want to, and as Brand reluctantly acknowledges, bans on gun ownership in public housing have proven to be constitutionally problematic in several places where they’ve been challenged in the past.
A federal court in 2019 overturned a public housing authority’s gun ban in East St. Louis, Illinois, and some states have also moved to prevent landlords from banning guns in apartments subsidized by the federal Section 8 program.
The NYCHA lease agreement does not mention firearms and residents can legally possess a gun in their unit, though state law has made that inconvenient because few can legally carry in public. “NYCHA residents, like all New Yorkers, are bound by New York State law,” said a NYCHA spokesperson.
If those who can afford to purchase a home as well as those who live in government-subsidized or government-provided housing are protected, it seems odd that those in the middle could still find themselves in essence priced out of exercising a constitutional right. The median home price in three of the city’s five boroughs is more than $700,000 right now, which means an awful lot of New Yorkers are already priced out of buying a home or apartment outright. If their landlord decides to make their property a “gun-free” zone, do these renters have any recourse? That’s very much an open question at the moment.
Levine, the New York-based attorney, said he is not sure what would happen if a case where a tenant challenges a landlord’s gun ban ever made it to the Supreme Court. “I don’t know how well that would hold up if it’s challenged,” he said, before describing a counter-argument. “If you do want to have a gun, you can move somewhere else.”
But Arizona-based attorney Denny Dobbins thinks such a case will reach the court down the road. Dobbins has frequently commented on gun bans in rental buildings and said Second Amendment interpretations may some day supersede private property rights in an apartment because, unlike other business premises, the space is under the tenant’s control.
“A bar owner could say, ‘No guns here,’ but in an apartment, though it’s owned by someone else, it’s controlled by you,” said Dobbins, who serves as counsel to the background check firm CrimShield. “If the rule and regulation is ‘it’s controlled by you,’ then it may be a violation of your Second Amendment right.”
Still, landlords can continue banning guns until the Supreme Court says otherwise, Dobbins said in a lengthy interview in the February issue of Rental Housing Journal—though he said he believes gun owners should be considered a “protected class.”
“The private landlord can make that decision because there hasn’t been a case yet that draws the Second Amendment into the private-landlord decision-making process on the issue, as has happened with Fair Housing issues like race, color, national origin, familial status, religion, gender, age, military status and Americans with disabilities,” he said.
There might not be a case yet, but give anti-gun activists in places like New York, California, and New Jersey a little time and I’m sure one of them will give a tenant justification to file suit.
The current laws regarding landlords and gun bans vary from state to state, but I can easily see blue-state governments incentivizing landlords to ban guns from their property, as well as the gun control lobby launching a public pressure campaign aimed at landlords as well. Will this completely undo the Bruen decision? Absolutely not, but it could make it virtually impossible for many Americans to keep a gun in their home, much less carry one in public for self-defense… at least if the courts don’t step in and declare that even if you don’t own your home the Second Amendment guarantees your right to protect your life inside your residence with a lawfully-owned firearm.