HOA Board members may be asking, ‘can we prohibit firearms on properties within the HOA.’ Meanwhile, individual gun owners and 2nd Amendment advocates may well be asking themselves, ‘Is it legal for my HOA to prohibit guns?’
Let’s shed some light on the subject matter for all concerned.
The 2nd Amendment, of course, states that “a well-regulated militia being necessary to a free state, the right of the people to keep and bear arms shall not be infringed.”
This isn’t exactly unclear, you would think – but the Constitution, of course, was ratified in order to constrain the power of the federal government over individual citizens. It was not ratified in order to restrict the authority of private property owners, or their representatives on homeowners’ association boards. And so the question becomes, “will not be infringed by whom?”
In fact, case law tends to grant HOAs and condominium association boards substantial latitude to enact whatever covenants and restrictions they please, provided they are clearly spelled out in association bylaws and covenants and properly voted on and enacted in open meetings of the association board, in accordance with governing documents.
To draw a point on it – for those who believe that living in a development that prohibits gun ownership is a dumb idea, the courts believe that while the federal government cannot disarm them, private individuals and associations have a right to be dumb. This is a foundational element of liberty.
And so it devolves to state laws. Generally, if your jurisdiction prohibits the private ownership of firearms – such as is it case in Washington, D.C., New York and Chicago, then there is little legal impediment to enacting a requirement that simply amounts to expecting residents and owners to comply with the law at that location.
Furthermore, even where the state and local governments generally allow the private possession of firearms, the law generally allows HOA and condo boards to restrict gun possession while on their property.
Generally, in such instances, HOAs are free to prohibit possession of firearms in the common areas, no problem. It is in common area restrictions where the legal authority of HOAs to set rules and standards is at its highest.
The Courts have consistently held that the 2nd Amendment only restricts the authority of government and quasi-government organizations – and HOAs don’t qualify as such, writes Marilyn Ratzel, a Partner at Lazega & Johanson, LLC, an Atlanta law firm specializing in HOA and condominium law. And, as such, protests relying purely on 2nd Amendment objections are likely to fail. HOAs are not government entities, but are instead the creations of a series of voluntary, private contracts between individuals – the people whom the Bill of Rights was designed to protect.
However, some special considerations apply for directors of government housing projects, who are, indeed, government or quasi-government entities. Furthermore, in areas like company towns, where a single private entity is standing in the stead of a local government, providing services normally provided by government, and choices in housing are very limited, then the courts may declare the association a quasi government entity – and shoot down disarmament rules that don’t comply with the federal or state Constitutions.
Concealed Carry Laws and HOAs
If your state allows individuals to carry a concealed weapon, then again, it falls to state law. Each state generally publishes a list of areas where carrying is prohibited, even for licensed carriers. But generally, condominium associations don’t qualify.
That said, the political and legal environment surrounding the issue will vary substantially from community to community. cAn attempt to ban firearm possession could be met with ferocious opposition in one area and with next to none in another.
If an HOA elects to ban possession of firearms for home and self-defense purposes, then they may take on increased burden of responsibility for protection of residents against crime. Indeed, specific legislation has been proposed in at least one state to heighten liability for business owners who create gun-free zones if someone is then hurt by a criminal on the premises.
But a jury does not need a specific law to find liability. If someone were victimized by a robber, rapist or murderer in her own home, the argument would go, “you expressly prohibited my client from possessing the means to protect herself, and yet you took no action to protect her.”
I would not want to be the defendant board representative on that witness stand.
If an HOA does decide to move to prohibit the possession of firearms in any way, they should seriously consider providing the substantial additional burden and cost of an armed guard service, gates, and other security measures.
These are doable – we’ve all seen gated communities – but they aren’t cheap. The costs will have to be borne by the community. It may well be more trouble than it’s worth.
There is no blanket court decision dealing with the validity of HOA bans on gun possession once and for all, but the legal bias is clearly in favor of the right of HOAs to impose such a restriction if they so desire – simply on the basis of upholding the right of private individuals to enter into whatever contracts and associations they like.
As long as the courts do not define HOAs as government or quasi-government agencies for this purpose, it will probably be allowable.
For more reading on the legal theories undergirding the issue, see here.
Writing about personal finance and investments since 1999, Jason Van Steenwyk started as a reporter with Mutual Funds Magazine and served as editor of Investors’ Digest. He now publishes feature articles in many publications including Annuity Selling Guide, Bankrate.com, and more.