Public housing tenants have a right to bear arms, even in common areas

So holds Tuesday’s Delaware Supreme Court decision in Doe v. Wilmington Housing Authority) (Del. Mar. 18, 2014). The court applied 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” — and the court noted that this language may justify broader protection than that given by the Second Amendment. Still, the precedent is likely to prove influential in other states as well, since the case deals with having guns for self-defense, which D.C. v. Heller has held is covered by the Second Amendment. (If the case had dealt with hunting and recreational use, for instance, the matter might well have been different.) An excerpt:

WHA argues that an accidental discharge of a firearm may have serious fatal consequences and that dangers inhere in the increased presence of firearms. But these same concerns would also apply to the area within any apartment — interior locations where the WHA concedes it cannot restrict the possession of firearms for self-defense. The Revised Policy does more than proscribe the unsafe use of a firearm. It also prohibits possession in the public housing common areas except where the firearm is being transported to or from an apartment. In this context, WHA must show more than a general safety concern and it has not done so….

[A]n individual’s interest in the right to keep and bear arms is strongest when “the weapon is in one’s home or business and is being used for security.” Residents have a possessory interest in both their apartments and the common areas. And although Residents cannot exclude other residents or the public from the common areas, their need for security in those areas is just as high for purposes of Section 20 as it would be inside their apartment or business. The common areas are effectively part of the residences. The laundry rooms and TV rooms are similar to those typically found in private residences; and the Residents, their families, and their guests will occupy them as part of their living space.

With the Common Area Provision in force under penalty of eviction, reasonable, law-abiding adults become disarmed and unable to repel an intruder by force in any common living areas when the intervention of society on their behalf may be too late to prevent an injury….

We recognize that where the government is a proprietor or employer, it has a legitimate interest in controlling
unsafe or disruptive behavior on its property. But WHA has conceded that after McDonald, as a landlord it may not adopt a total ban of firearms. Thus, occupying the status of government landlord, alone and without more, does not control. How the property is used must also be considered. Public housing is “a home as well as a government building.” The WHA is different from other public agencies in that it essentially replicates for low-income families services similar to those provided by a private landlord. The individual’s need for defense of self, family, and home in an apartment building is the same whether the property is owned privately or by the government.

The result seems quite right to me, though I’m not a fan of the “intermediate scrutiny” approach that the court used to reach the result — I think such tests, popular as they are among courts in various areas of the law, ultimately conceal more than they reveal (and I’d say the same about “strict scrutiny”). I discuss the public housing issue in more detail in my Implementing the Right to Keep and Bear Arms article (pp. 1473-75 and 1529-33). I also discuss the intermediate scrutiny/strict scrutiny/substantial burden question at pp. 1454-1473 of that article.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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