It’s an interesting question, and it’s coming up in New Jersey. I’ve often heard of homeowners associations banning signage, or dictating what color you paint your house. But can they ban guns, or otherwise infringe on civil liberties? There’s quite a lot of confusion about how civil rights law is applied within the gun rights community, but it seems to me you might be able to sue the homeowners association under 18 USC 1595, which provides for civil action against violators of the Civil Rights Act, namely 18 USC 241, conspiracy against rights. Civil Rights Law isn’t something I’m an expert on, so maybe this isn’t actionable, but unlike pure advocacy against gun rights, which is not considered a legal conspiracy, actually preventing people, or conspiring to prevent people, from exercising a constitutional right would seem to be to be unlawful activity under the Civil Rights Act, and subject to civil as well as criminal penalties.
UPDATE: Thinking about it more, if you were a prospective homeowner, coming into an association that banned guns, you probably don’t have a case, because you willingly agreed to surrender your rights. If you were an existing homeowner within an association, and that association votes to ban guns, I think you may have a case. You may have contracted to abide by the dictates of the homeowners association when you bought the house, but I think a reasonable argument could be made that can’t extend so far as to deprive one of constitutional rights.
IMHO, no association should be allowed to put one in the position to choose between living somewhere and surrendering a civil right.
This would be no different than an association saying to its members, “People of all religions are allowed here, but the practicing of Judaism is not permitted.”
Depriving or conspiring to deprive people of their civil rights by offering them a contract under which they can elect to waive those rights seems like a pretty bizarre charge.
But then, depriving a person of his civil rights by declining to do business with him is also a pretty bizarre charge, and it’s just the kind of thing the CRA was written to criminalize, so who knows?
Would a homeowner’s association rule that prohibited you from writing letters to the editor survive court challenge?
While I find the logic offensive, Shelley v. Kraemer (1948) is spot on.
I have more of a problem with it if it is an HOA or Condo Association than if it is a rented location. But, how would people react if they wanted to ban:
– Muslims
– Books
– Computers
– People of certain ethnic ancestries
– People who are not on a pre-approved list from visiting
– People of a particular political persuasion
If it is a constitutionally guaranteed right, and you truly own your property, how can they legally strip you of that right?
– People of a particular political persuasion
Frankly, the proposal has a lot more to do with that than with guns.
Contracts that are violations of civil rights are unenforceable – cf, CC&R’s that mandate you only sell to ‘white people’. So no, the condo can’t limit the second amendment.
And why should they? Could they limit your first amendment rights and say, e.g., that you could not blog from the privacy of your home, or read the ‘wrong kind of newspaper’ there? Or that you forfeit your fourth amendment rights simply by living there?
Sure they can.
Remember, the Constitution is a Living Document. It means whatever judges say it means.
It is still ok for boarding houses to ban single men. It is still ok for university dorms to discriminate based on gender. It is still ok to discriminate in scholarships, hiring, and promotion on the basis of race. It is ok for the government to give a hiring preference for the disabled, discriminating on the basis of disability. It is ok to discriminate against equally qualified younger candidates for employment.
Why would gun rights get more weight than equal treatment on the basis of race or health?
About 20 out of 70+some units here are rentals, but creating a set of CC&R’s just to ban guns, something that is a constitutional right, would be counterproductive — and amending existing ones out of spite would be expensive. It IS expensive to draw up new CC&R docs because you got a lot of pages to read and process and Lawyers who specialize in real-estate law have to be intimately involved.
People who own a condo unit for investment and rent it out don’t have a lot of choices about who they can NOT rent-to as long as their basics are good, that’s standard civil-rights stuff and guns are a part of it – but with guns it’s more like DADT.
Also with guns-and-condos, Rule #4 is a real standout with the, “Every bullet has a lawyer attached” caveat. I have precious few directions here that I can let one go without impacting my neighbors – talk about living in a glass house.
No one would recognize a requirement in an HOA making the residents there slaves. So why should a ban on guns be acceptable?
They cannot bar you from putting up an antenna or dish for receiving television.
But I think that is something important, like the regulatory preemption of the FCC over local laws, not something minor like a constitutional right.