The Right to Bear Arms? Hold on a Second!

Recent events have renewed cries for stricter gun control.  The question that has risen is “How far can the Government go in restricting and individual’s right to keep and bear arms?”  In the Landlord/Tenant arena, the question becomes, “Can a Landlord prohibit Tenants from owning or possessing firearms on the property?”

The Second Amendment to the Constitution of the United States, as ratified by the States and authenticated by then Secretary of State, Thomas Jefferson, reads “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.” 1

At first glance, the Landlord seemingly would not have the right limit another person’s Constitutional right to possess a firearm.  There are many instances where a property owner’s right to determine what can or cannot be on his property is not absolute.  A Landlord can prohibit pets, but not assistive animals.  A Landlord can prohibit excessive traffic, but cannot prevent a Bible Study.  At present, a Landlord may prohibit marijuana use, but the effect of recent medical marijuana legislation has yet to be determined through the Courts.  The Federal and State Fair Housing laws limit what a private property owner can or cannot do.  If there is a “protected class” involved, namely, race, color, religion, sex, disability, familial status, or country of origin, a Landlord faces restrictions on what he can do on his property2.
 In the area of guns, there is a very limited amount of caselaw regarding the Second Amendment.  The Supreme Court recently heard two cases involving gun control, District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 3025 (2010).

Heller was a landmark case in which the Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm for “traditionally lawful purposes, such as self-defense within the home and within federal enclaves.”3

In McDonald, the Supreme Court held that the right of an individual to “keep and bear arms” protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the States.  The decision cleared up the uncertainty from Heller regarding whether the scope of the Second Amendment protected gun rights from infringement by local governments.

Although those cases prohibit Federal, State and local governments from infringing upon the individual right to keep and bear arms, nothing addresses whether an individual property owner can make such a restriction.  Gun owners are not a “protected class” and therefore, not subject to Fair Housing laws.  Only governments, Federal, State or Local, cannot infringe on an individual’s right to keep and bear arms.

The matter then reverts to the property owner’s rights and the law of contract.  If a Landlord does not want firearms on his property, and the lease provides that the tenant agrees not to have firearms on the premises, it is a negotiated term and can be upheld.  However, it stands to reason that the converse would also apply.  If a Landlord wants to require that all tenants must have a firearm in the unit if they are going to rent from this Landlord, it would also be a negotiated term and would be upheld.4

If a Landlord is seriously considering prohibiting firearms on his property, consider that those who stand firm on the Second Amendment are very passionate about that right.  There was an instance in Arizona history where a town attempted to ban all firearms within the town limits.  The town was Tombstone.  The ban went into effect and was said to be one of the causes of the famous Shoot-out at the O.K. Corral.  Infringement by a governmental body, or an individual seen by a tenant as one who has some control over their behavior and freedom, is seldom a wise choice.  Just because you can, doesn’t always mean you should.


1 The Second Amendment to the Constitution of the United States, as passed by Congress, reads “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.”  The difference in capitalization and punctuation was not sent to the States to be ratified.

2 Some Cities are adopting ordinances adding to this list, e.g., sexual identity.

3 The District of Columbia is considered a “federal enclave” in that the Federal Government exercises exclusive legislation and authority over that property

4 At the time of this writing, a City in Maine is debating an ordinance requiring all residents to have at least one firearm and ammunition in every household within the city limits