The Second Amendment and the Law of Nuisance

WUNC’s Adhiti Bandlamudi has a terrific new article called “On The Edge of Suburbia: Where Noise Pollution and Gun Rights Collide,” which is part of the broader Guns & America series. (Darrell Miller and I were interviewed and are quoted in the story, but you should read it anyway.)

In addition to being well-executed and informative, the piece helps draw attention to one of the more interesting (and least discussed) issues involving gun rights and regulation: the applicability of legal rules that regulate the use and possession of guns without targeting them as such.

Understandably enough, most scholarly and political attention is paid standard form “gun control” that directly regulates the possession or use of guns. But in some areas—especially those that lack much direct regulation—the most relevant forms of potential legal liability come from other areas of law: trespass, nuisance, restrictive covenants, and so on. Such legal rules can burden the right to keep and bear arms in ways that are “incidental,” in the sense that Mike Dorf has explained, but nonetheless quite significant: Heller might prohibit urban areas from banning handguns, but so long as homeowners associations can do so, private ordering could end up providing a rough equivalent.

Of course, that presumes that an HOA ban—or nuisance liability, for that matter—would be constitutional and otherwise legal, and that’s not easy to say. (Christopher Wahl wrote a good piece on this question a few years ago.) It is not hard to imagine people, such as the backyard-shooters in Bandlamudi’s story, arguing for a constitutional exemption from generally applicable rules like nuisance.

Such claims are hard to dismiss out of hand. In some areas of constitutional law, even private actions between individuals based on background principles of tort or property law can trigger constitutional review—think New York Times v. Sullivan or Shelley v. Kramer. In others, neutral laws of general applicability are effectively immune from constitutional challenge—see Employment Division v. Smith.

Darrell and I explored the Second Amendment implications a few years ago. in “What Is Gun Control?” (Mike wrote a terrific response.) In brief, we concluded that there’s no easy answer. In some instances, and depending on one’s understanding of the Second Amendment, it could well be that the nuisance law and the law of covenants must give way to the right to keep and bear arms.

I’m not aware of any cases yet holding as much in the nuisance context—most of the action has been on the statutory front. As Jake Charles noted on Twitter last week, the West Virginia Supreme Court recently held—on the basis of some specific statutory language exempting firearms uses—that a shooting range could not be held liable for violating a noise ordinance. Other cases have gone the other way.

As Bandlamudi’s story suggests, this is not an issue that is likely to go away any time soon.