Federal court overturns gun bans in Public Housing

A federal District Court judge recently ruled that banning the lawful possession of firearms by Public Housing residents is unconstitutional.

In a case brought against the East St. Louis Housing Authority (ESLHA), a Public Housing resident claimed that ESLHA’s restriction against tenants having firearms in their units violated her Second Amendment rights. The case was brought by the Second Amendment Foundation and the Illinois State Rifle Association on behalf of the resident.

Listed in court documents as N. Doe, she cited the need to have a gun for safety and self-defense. She had been abused by her ex-husband while he was on parole after serving time for murder. He had also threatened to kill her and her children. She had also been sexually assaulted in her home by a family acquaintance. The assault was halted when one of her children confronted the attacker with her gun. Doe’s weapon was properly registered. She had received training and education in the safe use of firearms and held a valid Illinois Firearms Owner ID card.

ESLHA’s Public Housing lease contained a clause banning possession of firearms. The lease clause stated that, “residents are not to display, use or possess or allow members of (Doe’s) household or guest to display, use or possess any firearms (operable or inoperable)…anywhere on the property of the authority.” Violation of this clause could result in the housing authority terminating the lease. Doe had come to Public Housing after health issues in her family had brought them on hard times. She feared for losing her affordable housing unit because of her possession of the gun.

The suit contends that the ban discriminates against poor people, denying them the same right to bear arms that is enjoyed by those who can afford private housing. District Court Judge Phil Gilbert ruled that ESLHA cannot deny, through rules or regulations, a tenant’s right to lawfully own a firearm. Judge Gilbert said that, “Among whatever else, the Second Amendment protects the rights of a law-abiding individual to possess functional firearms in his or her home for lawful purposes, most notably for self-defense and defense of family.”

HUD provides no guidance on the issue of firearms in Public Housing, relying on Public Housing Agencies (PHAs) to follow state and local requirements. Many PHAs choose reasonable regulation. Typically, this means that they place restrictions on firearms in common areas. At the same time, residents are allowed to lawfully keep firearms in their rental units and transport them appropriately when taken out of the home.

Although the Second Amendment provides the right to bear arms, it does not keep private property owners from restricting the presence of guns. For example, many shopkeepers post signs banning guns from their stores. Unless a state explicitly prohibits landlords from banning firearms, they can restrict any activity they want as long as it is not in violation of federal civil rights and fair housing laws. Some states, like Tennessee, explicitly allow landlords to restrict the possession of guns on their properties. Others, like Minnesota, forbid landlords from banning legal possession of firearms.

Landlords who accept Section 8 Housing Choice Vouchers are accountable to state and local laws on gun possession. Because of the variations between states, there are many places where Section 8 voucher holders may not be able to keep firearms in their apartments. Some states, however, have taken steps requiring Section 8 landlords to allow residents to lawfully keep firearms. In 2016, Maine passed a law that forbids landlords who accept Section 8 vouchers from barring firearms kept lawfully by tenants. It not only applies to private landlords accepting Section 8 vouchers, but to virtually all publicly assisted housing in the state.

Housing authorities and private property owners that receive housing subsidies have an interest in maintaining safe living environments for their residents. At the same time, low-income residents have the same constitutional rights as wealthier households. Low-income renters who own firearms should check with the housing authority or property owner about gun possession rules before taking an apartment. You can also ask your local legal services office about state and local laws relating to keeping firearms in a rental property.