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Safe at Home: Delaware Supreme Court Upholds Right to Bear Arms for Tenants of Public Housing

Friday, March 21, 2014

Thanks to a successful NRA-backed lawsuit, Delaware public housing tenants will be safer in their homes. In a unanimous ruling, the Supreme Court of Delaware held on March 18 that policies adopted by the Wilmington Housing Authority (WHA), which prevented residents, their families and their guests from exercising the right to self-defense in certain areas of the housing authority's property, were unconstitutional.    

According to the U.S. Department of Housing and Urban Development, persons receiving housing assistance are estimated to be over twice as likely to suffer victimization (including firearm-related crime) as other members of the population.

Despite that, WHA's policies, incorporated into each resident's lease agreement, prohibited a resident, members of his or her household, and any guests from carrying a firearm (or other weapon) in any "common area" (spaces like a laundry room, corridor, "community room" or parking area), unless the firearm or weapon was being transported to or from the resident's unit, or was being used in self-defense. A violation of this policy was grounds for immediate termination of the lease and eviction.

Another policy required the resident, household member, or guest to have available for inspection any permit, license, or other document required by law for the ownership, possession, or transport of any firearm (including a license to carry a concealed weapon) when there was reasonable cause to believe that the law or policies had been violated. The WHA claimed these policies were a "carefully crafted and balanced" approach that reconciled firearm rights with minimizing the risk of accidental or intentional shootings and "the alarm caused by having weapons displayed" in common areas, which (according to the WHA) were really not part of the resident's "home."

Two residents disagreed and filed suit, alleging these restrictions violated their right to bear arms. In 2012, a federal district court upheld the policies as valid under the Second Amendment. Although public housing was, fundamentally, a home, "not every square foot of public housing was any individual's …home.'" Assessing the validity of the policies, the court purported to reject the use of a deferential "reasonable regulation test."  Its notably superficial analysis, however, found that by limiting guns in common areas, the WHA limited "potential violence," and that "safety [was] best promoted by prohibiting possession of firearms in common areas." All that was needed was "a reasonable fit" between the policy and the WHA's interest in protecting the safety of those on the premises.

The residents appealed to the U.S. Court of Appeals for the Third Circuit, arguing the relevant consideration was the Delaware Constitution, not the U.S. Constitution. The Third Circuit agreed, sending the case to the Delaware Supreme Court for a ruling under Article I, Section 20 of the Delaware Constitution ("A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use").  The National Rifle Association of America filed an amicus brief in support of the residents, arguing strongly that the WHA policy "flatly contradicts Article I, Section 20 of the Delaware Constitution."

In Tuesday's ruling, Doe v. Wilmington Housing Auth., No. 403, 2013, 2014 WL 1032699 (Del. Mar. 18, 2014), the Supreme Court of Delaware agreed. It confirmed that the right to bear arms under Delaware law was not limited to the "home" (however defined), and that the core of the right consisted of a purpose, lawful defense of self, family, and home, not a place.

The court further ruled that the Delaware right to keep and bear arms was intentionally broader than the district court's reading of the Second Amendment and protected the right to bear arms outside the home. The "distinctive language" of Delaware's Constitution and its legislative history demonstrated an intent to provide a right to keep and bear arms independent of the federal right.

This right was deemed a "fundamental right." While government actions affecting fundamental rights are almost invariably evaluated using the highest judicial test ("strict scrutiny"), the court in this case determined, unfortunately, that a lessened level of review was justified because the right was "not absolute." In applying intermediate scrutiny (where the governmental action must serve important governmental objectives and must be substantially related to the achievement of those objectives), the court nonetheless found that the common areas policy overreached its stated purpose. Given the objective (preventing the unsafe discharge of firearms), the policy did more than prohibit unsafe use; it banned almost all possession.

Moreover, WHA residents do have a possessory interest in the common areas, not just their units. Under the policy, "reasonable, law-abiding adults" were liable to "become disarmed and unable to repel an intruder by force in any common living areas when the intervention of society on their behalf may be too late to prevent an injury." Clearly, the policy "severely burden[ed] the right [to bear arms] by functionally disallowing armed self-defense in areas that Residents, their families, and guests may occupy as part of their living space. Section 20 of the Delaware Constitution precludes the WHA from adopting such a policy." The documentation policy that enforced the unconstitutional common areas policy was held to be unconstitutional as well.

The court pointed out specifically that the policies were not sustainable simply because the WHA claimed to be acting as a landlord and not as a government or sovereign authority. There was a critical distinction between government property used for housing, and government property used for providing "services typically provided to the public on government property," and residents of government property didn't waive their firearm rights simply by virtue of their occupancy.  "The individual's need for defense of self, family, and home in an apartment building is the same whether the property is owned privately or by the government."

Thanks to the court's ruling, residents of the WHA will no longer be treated as second class citizens with respect to their Second Amendment rights.

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