April 6, 2010
Wershbale on the Second Amendment and Public Housing
I often tell my land use students that there is hardly any public policy or private law issue that doesn't have some sort of land use question involved, if for no other reason than because all human activity necessarily takes place on land, and land is a unique and finite resource. The conflict between public law and private rights is often fought over land use controversies. Furthermore, I often advise con-law junkies that in practice, many constitutional issues involving civil rights and liberties are played out in disputes over land use rights and regulations (see, e.g., exclusionary zoning, billboard regulation, sexually-oriented businesses, and RLUIPA).
Proving my point in a new way is an article posted by Jamie L. Wershbale (U.S. Dept. of Housing & Urban Development) titled The Second Amendment Under a Government Landlord: Is There a Right to Keep and Bear Legal [Fire]Arms in Public Housing?, forthcoming in St. John's Law Review, Vol. 84. The abstract:
This article explores the constitutionality of banning legal firearms in government-owned public housing developments, an issue which is far from clear. Public housing is federally-subsidized low-income housing, owned and operated by local governmental entities known as Public Housing Authorities (“PHAs”). Many PHAs nationwide have banned all firearm possession on PHA-owned premises, based on their authority as landlords, property-owners, and in exercise of their inherent police power to control crime. Such bans potentially violate public housing tenants’ gun ownership rights, under either state law or the Second Amendment. This article evaluates public housing firearm bans in light of the right to armed self-defense articulated in District of Columbia v. Heller, and in contemplation of Second Amendment incorporation under the forthcoming Chicago v. McDonald decision. The analysis considers the constitutionality of public housing firearm bans under federal housing law, state law, and the Fourteenth Amendment, with an eye towards future litigation.
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