The Second Amendment under a Government Landlord: Is There a Right to Keep and Bear Legal Firearms in Public Housing?
Wershbale, Jamie L., St. John's Law Review
There is substantial controversy over the status and scope of the Second Amendment to the United States Constitution, otherwise known as the "right to bear arms."1 While it is clear there is no absolute right to gun ownership, what rights Americans do have, to possess firearms in their homes or elsewhere, is not entirely settled. This constitutional quagmire is a source of heated debate between gun control advocates and gun rights supporters.
The 2008 United States Supreme Court decision in District of Columbia v. Heller2 shed light on the status of gun ownership in America, articulating a federal individual right to bear arms unconnected to militia participation.3 Further illuminating the rights of gun owners in the United States, the subsequent 2010 decision in McDonald v. Chicago4 answered the open question of whether the Second Amendment is incorporated to the states: The Court held "that the Second Amendment right is fully applicable to the States."5 However, despite the outcome in McDonald, firearm regulation will remain an issue of controversy and the focus of much litigation.
The question of gun ownership becomes further clouded in the context of conventional public housing. Public housing consists of government-owned housing facilities, which shelter low- and very low-income tenants at significantly reduced rents.6 Taxpayers support public housing at a cost of $11 billion annually.7 Funds appropriated to the United States Department of Housing and Urban Development ("HUD"), a Cabinet-level federal agency, are formulaically allocated to local public housing authorities ("PHAs") to establish, maintain, and operate public housing developments.8 In public housing, the government is the landlord.
There are strong bases both for and against permitting legal firearm possession in public housing. Statistical and anecdotal evidence of high incidences of gun-related violent crime in housing projects supports prohibition of all firearms in public housing. Constituents' stereotyping all public housing as dangerous and dilapidated also favors public housing firearm bans.9 For many Americans, the term "project" conjures up thoughts of places like Chicago's violent drug-ridden Cabrini- Green and the now-demolished Robert Taylor Homes-stories of tenants sleeping in bathtubs for fear of stray bullets, images of tightly-packed high-rise buildings overrun by gangs, and tales of lawless places where poor minorities are isolated from society.10
While this picture of public housing is not baseless, it is far from a true cross-section of public housing developments nationwide.11 Over two million Americans live in public housing,12 the majority being law-abiding citizens working to better their positions in life.13 Very few public housing developments are high-rises, let alone high-rises containing thousands of units like the aforementioned Chicago facilities.14 There is truth in the common perception that poor minorities, particularly women with young children, populate public housing, but public housing also supports a significant number of low-income elderly and disabled persons, as well as nonminority families.15 Nonetheless, there are still serious concerns about gun violence in public housing developments, inducing many PHAs to ban or restrict all firearm ownership.16 However, after Heller, there are persuasive constitutional arguments that the law-abiding citizens in these developments should be permitted to legally possess firearms for defense of hearth and home, despite government ownership of the units.
This Article examines the right to bear arms under a residential government landlord, collecting legal scholarship and decisional law as a guide for future litigation efforts and public housing policy in the aftermath of Heller and McDonald. Part I overviews public housing in the United States. Part II concisely presents the Second Amendment, focusing on the holding in Heller and discusses incorporation under McDonald. …