An entire textbook and law school class could be devoted to the topic of handgun regulation. This article will focus on two recent United States Supreme Court (“Court”) decisions, briefly discuss some of the ways in which the Court’s decisions could apply to community associations, and identify practical issues that a community association should consider before embarking on any attempt to restrict handguns in its community. Any association interested in regulating firearms should consult experienced association counsel before embarking on such a task.

The Second Amendment to the U.S. Constitution states:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

State and Local Governments’ Unsuccessful Attempts at Handgun Bans

In the 2008 case of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008), the United States Supreme Court struck down laws that banned handguns and required guns to be unloaded and disabled while stored in the home.

In reaching its decision, the Court found that having a gun in the home for protection is a fundamental right that enjoys special protection under the Constitution. The Court held that “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition on their use is invalid.” That Court also held that it was unconstitutional to prohibit any firearm in the home from being “operable for the purpose of immediate self-defense.” The Supreme Court appeared to limit its holding to the home and noted that its decision should not be construed as casting doubt on longstanding laws prohibiting the carrying of firearms in “sensitive areas” such as schools and government buildings.

Two years later, the Court decided a similar case in McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020 (2010). This case involved the challenge to laws enacted by Chicago and one of its suburbs that effectively banned handgun possession by almost all private citizens. This case focused on state versus federal rights; namely, whether the Second Amendment applied to the states and their subdivisions. The Court relied heavily on the Heller decision and recognized that “it is clear that the Framers and the ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” The Court held that the Second Amendment is binding on the states and their subdivisions. Accordingly, the handgun laws at issue did not survive the challenge.

How the U.S. Supreme Court’s Decisions Could Apply to Associations

Do these cases apply to community associations? Generally speaking, the U.S. Constitution applies to and constrains federal, state, and local governments. So, in order for the Constitution to apply to a community association, a court would have to find a community association to be a state actor.

There are three primary ways that a private entity can be considered a state actor: 1) the enforcement of certain private restrictions through court action; 2) the “public function” test, and; 3) the “state involvement test.”

Although decided in the context of civil rights, the Court found that private entities took on the role of state actors when they sought to enforce racially restrictive covenants through state action. However, in the Pennsylvania case of Midlake on Big Boulder Lake, Condominium Association v. Cappuccio, 673 A.2d 340 (Pa.Super. 1995), the court rejected a First Amendment argument concerning yard signs by finding that the association was not a state actor that could violate the U.S. Constitution. It is not clear whether the federal jurisprudence on this concept would be limited to civil rights issues or would expand to include the Second Amendment.

A private entity that meets the “public function” test is another way that a private entity can be considered a state actor. For, example, the U.S. Supreme Court found a company town that provided the essential functions of a local government to be constrained by the U.S. Constitution. The Court held that for the “state involvement test” to apply, there must be a “sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.”

State law provides additional avenues of challenge, such as limits on servitudes. Again, this article is limited in scope and does not delve into the state law issues that any handgun regulation would face.

Based on the very strong language in both the Heller and McDonald cases, and our nation’s historical promotion of the defense of home, it is very doubtful that any ban on the possession of guns within the home would survive legal challenge. Likewise, any restriction on an individual’s ability to transfer his lawfully owned handgun to and from his home would face the same legal challenge.

An association would have a much better chance defending restrictions on gun possession in certain common areas or at association meetings. The more that an association can limit restrictions to so-called “sensitive areas,” the better the association’s chances of withstanding a legal challenge are. As outlined below, however, the practical challenges of enforcing a handgun restriction could outweigh the difficulties of legal challenges.

Why I Don’t Get Invited to Parties

In an earlier post I mentioned that one (of the many) professional hazards of being a lawyer is not being invited to parties. As someone who sees the world as one potential liability after another, these observations do not endear me to the host of the party (i.e. “Are you crazy? Spray string!? You might as well have the kids juggle flaming chainsaws!”). You get the picture. The following thoughts regarding handgun restrictions are along these lines.

The perverse consequence of banning handguns in the common areas is that it could expose the association to greater liability. As a practical matter, any handgun restriction imposed by an association will not be enforced. A properly concealed handgun is extremely difficult to spot. The only effective way to enforce a handgun restriction is through the use of metal detectors or physical pat downs. I can’t think of a single association that would install metal detectors at the clubhouse entrance or hire private security officers to pat down residents as they enter the health club. I use the term “security officers” because I am assuming that an association would not want to expand the roles of its lifeguards, gym attendants, and maintenance personnel to include the enforcement of a handgun ban. However, by proclaiming certain common areas to be “gun free,” it is possible that the association has undertaken a duty to enforce such a ban.

Imagine a situation where a member of the public knows about the association’s “gun free” areas. This individual believes that the gun free policy is being enforced by the association and decides to attend an event at the clubhouse knowing that he will be safe from gun violence. While at the clubhouse, this individual is shot by an individual who possesses a valid permit to carry a concealed firearm. The shooter was either unaware of the gun free policy or deliberately disregarded the policy. The member of the public sues the association under the theory that the association’s failure to enforce its own gun policy resulted in his injuries. While this example sounds outrageous, I do not think such an argument would be beyond the scruples of an aggressive personal injury lawyer looking to implicate as many insurance policies as possible.

The Tennessee Legislature was contemplating a bill that would make the ancillary of the above example into law. According to an early version of this bill, a property owner who imposes a firearm ban would be liable to any citizens who were injured as a result of complying with the firearm ban. For example, an individual with a valid permit to carry a firearm respects the association’s firearm ban and leaves his handgun in his unit while he attends an event at the clubhouse. While at the clubhouse, the individual is shot. The earlier version of the Tennessee bill would make the association liable for the individual’s damages. The argument would sound something like, “But for your firearm ban, myself and others would have been armed and able to defend ourselves against the attacker. By intentionally disarming law abiding citizens who were licensed to carry, you became responsible for my safety.” If these concepts are being discussed by elected officials, you can rest assured that the personal injury bar is aware of these legal arguments.

Although involving a dog bite within a homeowners’ association, the Pennsylvania case of McMahon v. Pleasant Valley W. Ass’n, 952 A.2d 731 (Pa.Cmwlth. 2008), demonstrates that the issues raised above are not theoretical. A homeowner who was attacked by his neighbor’s pit bull sued the association as well as the dog’s owner. The theories of liability asserted against the association included the failure to establish and enforce rules and regulations requiring homeowners to maintain, control, and confine dogs on their property.

In upholding the dismissal of the action against the association, the Pennsylvania Commonwealth Court pointed to the following factors: 1) the association did not retain the right to control the lot on which the dogs were kept; 2) the association did not undertake to provide any additional protections against dog attacks; 3) the association did not undertake to assume the duty of the government entities empowered to enforce the Pennsylvania Dog Law. Had the association in the McMahon case adopted some type of dog restriction, the case may have turned out very different.

So before your association embarks on this journey, undertake a critical and honest assessment as to whether your association could or would enforce a handgun restriction.