Q: Our homeowners’ association is considering banning guns everywhere in the community, including in the residents’ homes. Many of the residents are upset about this, while others are in favor of it. Is the association even able to enact this rule? — Margie
A: This is the type of question that attorneys will disagree about. In my opinion, enacting this rule would overstep the board’s authority and not be enforceable.
Without getting into the politics of firearm ownership, the law is well-settled that people can keep firearms in their homes.
The Supreme Court sees the right to keep a gun in your home for self-defense as a fundamental right. Your association cannot put other restrictions, such as requiring guns to be kept unloaded, since “[t]his makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional,” as stated by Justice Scalia in the landmark Heller case on the issue. If someone can legally own a firearm, the association cannot restrict them from keeping the gun in their home.
The issue of whether carrying guns in the community’s common areas is more complicated since private owners can restrict others from bringing firearms onto their property. Also, there are certain places where people who can otherwise legally carry firearms are restricted, such as schools and courthouses.
Depending on where you live, there may be restrictions on how a gun may be carried in public, such as making sure the gun is out of view.
Some lawyers believe that a community association can restrict firearms on common property, while others point out that owners have an ownership interest in the common areas.
If your community feels it has a particularly good reason to restrict concealed carry in a common area, it should still proceed cautiously. First, it may open itself to an expensive lawsuit by disagreeing owners. Second, this type of rule can prove challenging to enforce given the hidden nature of carrying a gun concealed.
Finally, it can be argued that by restricting residents’ ability to defend themselves, the association is taking that responsibility onto itself. This can lead to problems if a resident becomes a victim of a crime if the community does not take adequate steps to provide security.
With all the potential problems and pushback with this sort of rule, this is likely an area better left to the governmental authorities.
Board-certified real estate lawyer Gary Singer writes about industry legal matters and the housing market. To ask him a question, email him at gary@garysingerlaw.com, or go to SunSentinel.com/askpro.
