Can Your Board of Directors Ban Guns in Your Community?

By Donna DiMaggio Berger, Esq.

Editor’s Note: Donna DiMaggio Berger is a Shareholder with Becker & Poliakoff. She regularly addresses issues of interest, such as this article, to community associations at The Community Association Law Blog www.communityassociationlawblog.com.

Florida lawmakers are considering several gun proposals in the 2016 Session. One bill would allow people with concealed-weapons licenses to carry guns on college and university campuses, while another would allow individuals with those concealed-weapons licenses to openly and visibly carry those firearms.

Naturally, guns and all the emotions they evoke from both sides continue to generate media attention and heated personal and public debate. Since a large percentage of the American populace lives in mandatory association communities with those numbers growing, the question of whether or not a board of directors has the right or the responsibility to restrict association members and their guests from carrying and/or discharging firearms inside the community needs to be asked.

Constitutional issues typically are raised in a private, residential community when a board attempts to enforce a restriction, and the violator claims that his or her constitutional rights are being trampled. What is often lost in translation is the fact that community associations are private entities and not state actors who would be bound by the U.S. Constitution to protect individual rights from infringement by the federal government or by a state or local government thanks to the 14th Amendment which extends constitutional principles to the states. However, courts have found that the behavior of private actors can be challenged with constitutional arguments in three different circumstances: state action through judicial enforcement, the public function test, and the state involvement test.

Let me be clear at this point that it is virtually impossible to completely analyze even a small portion of the constitutional issues which pertain to gun ownership in the space allotted. If constitutional claims have been raised as a defense in your community to the enforcement of any type of restriction, it is important for you to speak to an association attorney experienced in this area.

Hopefully, this article will spark a conversation between your board, manager, and association attorney when this issue eventually comes up in your community.

Can the Board of Directors Prohibit Guns Inside Your Unit?

The short answer is, no, the board (and even the members via an amendment to the governing documents) likely cannot prohibit owners from keeping guns inside their units/homes as the U.S. Supreme Court has held the right to keep a firearm in one’s home to protect that home and its inhabitants is a fundamental right.

In 2008, the United States Supreme Court, in the landmark case of District of Columbia v. Heller, 554 U.S. 570, addressed an individual’s Second Amendment rights. Heller involved two separate gun laws in Washington DC. One of those laws was an outright ban on handguns in Washington DC; the other was a law which required guns to be unloaded and disabled while stored in the home. Heller was a police officer in Washington DC who challenged these laws. This Supreme Court opinion is probably the most important case interpreting the Second Amendment.

Justice Antonin Scalia wrote the opinion, and he used his typical originalist interpretation to look at why the Second Amendment guaranteed the right to bear arms. Most folks are familiar enough with the Second Amendment to recognize that it guarantees the “right to bear arms”. However, the first part of the sentence is instructive: “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.” In the Heller opinion, Scalia looks at that first part of the sentence, and he finds that the original reason for the right to bear arms is self-defense. Long story short, Scalia argues that a disabled and unloaded gun will not be very useful if a burglar breaks into your home and you quickly need your gun for self-defense. He also found the ban on handguns to have no rational basis as they are often the weapon of choice for people who carry a gun in self-defense. Both gun laws were ruled unconstitutional by the opinion Scalia authored.

Scalia further said in dicta that the right to protect one’s home in self-defense is especially important and has special protection in the Constitution. Having a gun in your home for self-defense is seen as a fundamental right. Thus, a law (or in the community association arena—a covenant or rule) that prevented people from having guns in their own home would come under even stricter scrutiny. Given the clear and unambiguous direction laid out by the Supreme Court on the issue of maintaining a gun inside one’s home, it is hard to fathom how a board’s ban on keeping loaded guns in one’s unit or home (even one resulting from an amendment to the governing documents approved by the members) would pass constitutional muster.

Since there is no equivalent to the Heller ruling which confirms that carrying a gun outside the home is a “fundamental right”, then a private residential community could attempt to regulate or prohibit guns on the common areas. Moreover, the Court noted in the Heller decision that the Second Amendment right is not without limits when it stated: “nothing in our opinion should be taken to cast doubt on longstanding…laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

Communal living compels that some individual rights be abrogated in deference to and in support of the greater good. If a community association’s prohibition of guns in common areas is ever tested in court, the question may ultimately be whether or not the common areas of a private residential community qualify as a “sensitive area.” There have already been far too many instances of gun violence in shared ownership communities across the country, including crimes against directors, residents, and association managers/employees. The highly publicized death of teenager Trayvon Martin further highlighted how quickly a community can be swept up in all of the issues related to gun violence.

The Florida Second District Court of Appeals in the case of Hidden Harbor Estates, Inc. v. Basso, 393 So. 2d 637 (Fla.Dist.Ct. App. 1981) held that a community’s restrictions cannot “abrogate some fundamental constitutional right.” The right to carry or discharge a gun on an association’s common areas has not been held to be a “fundamental” constitutional right. Moreover, the Basso court did acknowledge that a community association could pass restrictions which were designed to promote “the health, happiness, and peace of mind of the unit owners.”  An argument could very well be made that a prohibition against guns in the clubhouse, pool area, meeting rooms, etc. would give peace of mind to (and safeguard the health of) residents already troubled by the volatile discourse in their community.

However, any association rule regarding guns would be scrutinized on a reasonableness standard while an amendment to the governing documents regarding guns would be cloaked with a presumption of reasonableness. Communities who are interested in restricting or prohibiting guns in and on their common areas should speak with association counsel prior to attempting to do so. There are other state and federal gun laws which may impact the manner in which a board of directors may draft such restrictions and, naturally, given the highly charged nature of the gun debate, taking the community’s pulse on the topic ahead of time would be advisable.

Footnote:  The Heller decision was one of the most significant decisions authored by Justice Scalia who passed away suddenly on February 13, 2016. Justice Scalia was appointed in 1986 by President Reagan and, with 30 years’ service, was the longest-serving Justice on the current Bench. Love him or hate him, the decision Justice Scalia penned in the Heller case has and will continue to have long-standing effects for years to come.

Donna DiMaggio Berger, Esq.

Becker & Poliakoff

Donna DiMaggio Berger is a Shareholder with Becker & Poliakoff and has represented all types of shared ownership communities throughout Florida. She is a member of the College of Community Association Lawyers (CCAL), a prestigious, national organization, which acknowledges community association attorneys who have committed themselves to high standards of professional and ethical conduct. Berger has worked with legislators on behalf of shared ownership communities. She has testified before the Florida Legislature and frequently appears on radio talk shows and in print media discussing association issues. She can be reached at (954) 364-6031 or at dberger@bplegal.com.