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Heller to lead to more gun bans falling?

Posted by JAZZ SHAW, Assistant Editor in At TMV.
Jun 28th, 2008 | Comments

It seems that the ink was barely dry on the Heller decision before the NRA began challenging other gun bans. This story comes to us from San Francisco, following a challenge in Chicago.

The National Rifle Association sued the city of San Francisco on Friday to overturn its handgun ban in public housing, a day after the U.S. Supreme Court struck down a handgun ban in the nation’s capital.

The legal action follows a similar lawsuit against the city of Chicago over its handgun ban, filed within hours of Thursday’s high court ruling.

This story was brought to my attention over at Hot Air, where Ed Morrissey was commenting on it. As he points out, there are some subtle but notable differences between the San Francisco case and Heller.

This case will definitely provide better clarification of Heller. The DC gun ban reflected the limits of states and cities for general gun ownership restrictions, but a court could easily conclude that the government has more expansive rights on public housing. The city owns the housing and rents it to the tenants. However, such a ruling could have a huge and negative impact on the scope of other rights for public-housing residents. Do they have lesser 4th Amendment rights on search and seizure, too? Can the government place tighter restrictions on speech and the practice of religion in public housing?

While I agree that the apparent differences are interesting, I think there is little to fear. On every level there are reams of legal text on the rights of tenants vs. landlords. While it is tempting to treat public housing differently, in this case the city truly is nothing more than a landlord. While the property owner maintains and can exert tremendous power over what goes on regarding a leased property, I did some quick checking at FindLaw and see nothing which indicates that a landlord has ever been able to supress constitutional rights which do not directly affect the physical property. (i.e. real estate.)

The owner can prevent the tenant from painting the walls, changing the carpeting, or otherwise physically altering the property. However, they can not restrict people of a given religion from renting nor prohibit them from praying inside the property. (This is not to say that a “nod and a wink” situation won’t exist where certain renters are excluded for “other reasons” of course.) The landlord can not claim that the police can enter the rental without a warrant, etc.

While the Kelo case of eminent domain tought me not to be too surprised at anything the Supremes may do, it seems to me that Keller has laid the base groundwork which will make the bans in Chicago and San Francisco fall without too much of a fight. Specific classes of people can still have their rights to gun ownership restricted following Keller, but general bans of “everyone in this given area” (even if “this area” is a public housing tract) being forbidden gun ownership has, I believe, fallen by the wayside. If the lower courts don’t completely ignore this definitive ruling, expect to see most of these bans falling like dominos soon.

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runasim

As the rights of the landlord of public housing are considered, I think the rights of the residents should be ocnsiered, as well. If the tenants organized into a representative body, I would think that they should have a say in determining 'house rules', too.

In the SC decision, celebrating indivdual rights, the residents of DC. were not consulted as to which rights they wished to exercise in their own community.
It was a case of outsiders taking decisons out of their hands.
In particular it took the decision away from voitng age adults and enabled accessibility of guns to underage criminal thugs.

StockBoySF

Jazz, look what you've gone and done.... you've put a hole in my thinking about 2nd amendment rights. :)

What I mean is that I was quite happy to support the SC's decision last week- I do believe that people have a right to bear arms.

But this post of yours highlights a double standard (I suppose) in my thinking... I don't know how to reconcile that.

So on the one hand I do believe in individuals to bear arms, but my first inclination on the ban of guns in public housing is to support such ban because I think (and maybe my own prejudices are glaring in technicolor right now) that it makes sense to me that people in public housing shouldn't own guns because public housing is dangerous enough.

So now I'm torn between my support of the 2nd amendment and my "daddy knows best" attitude (an attitude I try to avoid) when it comes to keeping public housing safe. I guess my support of 2nd amendment rights will win in the end.

I have a question to throw out there... what if a violent criminal (let's say he was convicted of armed robbery or maybe murder) did his time in prison and was released. Should he be able to buy guns- even an ordinary run of the mill handgun?

Jazz

I'm going to write another column on this subject today, but sometimes it's more fun to play in the comments section. The double standard you refer to is hardly uncommon, and rarely so often as with the gun debate. It's one of the unfortunate side effects of liberty. Consider, for example, freedom of speech. I imagine most of us would prefer to live in an area where there were no KKK or neo-nazi types allowed. We don't want them hanging out in our town squares, screaming about how the ni**ers and fags and kykes (sp?) are ruining the world. Unfortunately, to maintain our own free speech, we can't outlaw theirs and drive them out of town on a rail, as much as we might wish we could.

Public housing may be more dangerous in many places, but it is still, in fact, "housing" and is somebody's home. And they must have the same rights inside their homes as anyone else. Trying to flatly restrict a constitutional right to only people who own their own homes or rent from private landlords - if you think about it being worded in those terms - flies in the face of the entire concept of freedom.

To your question about violent criminals, I will need to run back and check for the existance (if any) of a federal statute, but I believe most - if not all - states bar conficted violent felons from gun ownership for life.

runasim

Jazz,
iYou skipped over a step in your free speech narrative.

The KKK has to apply for a license to march, and they have to march along a specified route. Their right to free speech is protected, but restricted by local regulations. The reasons are often pragmatic, not ideological: no one wants a riot, which would happen if the police couldn't prepare ahead of time.
Restrictions on rights are commonplace and necessary, for the greater good of the community.

Just as individuals comprise communities, individual rights have to be considered within a communal framework. That's civilization for you. It'a also the reason for a democracy: people vote (through Congress) on the laws that will govern the community, and individuals have to suppress their personal urges in order to comply.
It's not a simple process. majority power vs. minority rights, federal laws vs state alws, one right vs another.

I find it very strange that gun ownership is put on a pedestal, above the normal give and take and balancing of considerations and concerns.
People living far away,and with no knowledge of what it takes to manage public housing in Sf, are taking it upon themselves to impose their views on a community of which they are not a member.
I would call that extreme and irresponsible.

If it were up to me, I would make NRA and their supporters put their money where their mouth is: move into public housing and take responsibility for its management . I can just see the lawsuits for reckless endangerement and homicide piling up to keep lawyers in the clover forever.

StockBoySF

Jazz, here's how I look at free speech (in its simplest terms):

I may not like the following statement but I can live with it if someone were to come up and say it, "I don't agree with gays and think homosexuality is wrong."

This statement or belief crosses the line, "I don't agree with homosexuality and all homos should be shot." This is NOT free speech.

StockBoySF

"If it were up to me, I would make NRA and their supporters put their money where their mouth is: move into public housing and take responsibility for its management."

I have been wondering whether the NRA is just bringing this lawsuit because they're in a pissing contest and just want to win.

Now, having said that.... I still go back to being torn between free speech and controlling guns in public housing. Ultimately the constitution should triumph. Jazz pointed out that public housing is someone's home and they should be able to have the constitutional rights protected.... but the other side of that is that no one is forced to live in public housing... I think the landlord can make certain rules and if someone agrees to them, then so be it. But I still go back to the freedom of speech under the constitution and that people have these rights. Can't people "give up" their rights or choose not to exercise them?

In San Francisco a lot of landlords won't rent to smokers... couldn't smoking be considered a form of freedom of speech, in which case these (potential) landlords are violating freedom of speech.... and what about someone (renter or owner) who needs to have a roommate. If the person who has a place and is looking for a roommate doesn't want a smoker, then wouldn't that, too be considered violating constitutional rights? But then again smoking is banned in some public places, but that's because of a public health policy. I wonder what would happen if a smoker sued a city because they wanted to smoke in a restaurant... and they claimed a violation of free speech....

Well, you can see the straws I'm grasping and perhaps smoking isn't a form of freedom of speech and I've gone too far... I'm not trying to start an argument, but I am trying to work through the shades of gray in my head. But the basic question still exists... When can someone choose to give up certain constitutional rights?

StockBoySF

Jazz, thanks for the felon gun ban info. That's what I thought (the felon would be banned from owning guns once released). But if the felon has served his time and repaid his debt to society.... then why can't he own a gun? Wouldn't his second amendment rights be violated?

Maybe a better question to ask is this, "When else is a person penalized all his life for a mistake that he made and then subsequently "fixed"?" I mean all our life we're learn from our mistakes and are forgiven for them (or pay for them). So why is a felon treated differently? The only answer I can come up with is that it is the degree of how bad the mistake was... Personally I don't think felons should own guns... but since Jazz opened up this gun right issue I just have to look at all angles.

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