The Second Amendment Under a Government Landlord: Is There a Right to Keep and Bear Legal Firearms in Public Housing?

Authors

Jamie L. Wershbale

Document Type

Article

Abstract

(Excerpt)

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. Part III discusses the state of the law leading up through Heller, as well as HUD policies and congressional inclinations regarding firearms in public housing. Part IV explores the post-Heller constitutionality of firearms in public housing. This Part considers potential outcomes after McDonald, including the validity of a federal laws, the application of state laws, and challenges based on incorporation, as well as contemplating issues relevant to the right of armed self-defense. Although inconclusive as to the constitutionality of banning legal firearms in public housing, this Article lays the framework for analyzing the constitutionality of such prohibitions.

The focus is solely federally-subsidized, state-owned public housing developments—often referenced as “conventional” or “traditional” public housing—where the government serves as landlord. While arguably germane, public university dormitories, military lodgings, prisons, and Indian housing are beyond the scope of this Article.