In an 8-page decision issued on October 13, the Tennessee Court of Appeals ruled in Columbia Housing v. Braden that the landlord of a public housing complex cannot prohibit tenants from keeping firearms in their residences because this “prohibition . . . is an unconstitutional lease condition.” The decision, which is consistent with at least one pre-Bruen state-court decision under the old “two-part” test, provides an interesting window into what Bruen changes and what it does not.
The trial court had ruled in favor of the landlord, relying primarily on a 2009 Tennessee Attorney General legal opinion stating that, “[u]nder the general principles of contract law, a tenant can contractually agree to give up rights as long as the waiver is not unconscionable, or in violation of a statute. A lease provision forbidding the possession of firearms on the leased premises is neither.” Under this reasoning, the trial court held that the tenant had voluntarily waived his right to possess a firearm by entering into a lease containing a gun prohibition.
However, the Court of Appeals reversed in a unanimous decision and found that it was unconstitutional for the landlord to include the clause in the lease to begin with. The appellate panel noted that the unconstitutional conditions doctrine places limits on the ability of a government entity to require an individual to sacrifice a constitutional right for a benefit (here, access to public housing). Therefore, a landlord of public housing units cannot require prospective tenants to waive Second Amendment rights unless some exception to the constitutional right applies.
In this case, the landlord argued that it could ban guns under the sensitive places doctrine. The court, relying on Bruen’s brief analysis of sensitive places, sought to “determine whether handguns have been historically prohibited in public housing.” Noting that the modern decisional law on handgun prohibitions in public housing is unsettled, the court concluded that there was no longstanding tradition of such bans and “that an individual’s public housing unit is [not] analogous to . . . other established sensitive government buildings” because it is the tenant’s home. Therefore, the court found the handgun prohibition unconstitutional and unenforceable.
It’s worth noting that the outcome here may not have been any different under the pre-Bruen legal test. While courts diverged on the question of whether guns could be prohibited entirely in a lease agreement for a public-housing unit, the Delaware Supreme Court applied intermediate scrutiny to a challenge to public-housing lease rules regarding firearms brought under the state’s Second Amendment analogue in 2014. The Delaware court found that provisions banning guns in common areas and requiring residents to produce a gun permit upon a showing of reasonable cause of a potential lease violation were overbroad and unconstitutional. While that court did not apply Heller directly because it was dealing with a state constitutional provision, its analysis was similar to how federal courts approached Second Amendment challenges pre-Bruen. And the holding in the Delaware case was actually broader than the recent Tennessee decision: the landlord in question permitted guns to be kept in individual units, and banned them only in common areas. The Delaware Supreme Court held that:
[T]he restrictions of the Common Area Provision are overbroad and burden the right to bear arms more than is reasonably necessary. Indeed, the Common Area Provision severely burdens the right by functionally disallowing armed self-defense in areas that Residents, their families, and guests may occupy as part of their living space. Section 20 of the Delaware Constitution precludes the WHA from adopting such a policy.
To be sure, other courts came out differently when evaluating similar challenges. For example, an Illinois court upheld a public housing gun ban in 2019 under “heightened means-ends scrutiny,” finding that the ban was sufficiently tailored to the objective of “protecting the safety of residents, guests, and others who are present from time to time at housing facilities.” After Bruen, it’s difficult to imagine a blanket gun prohibition in a public-housing lease being upheld by any court—and that appears to be the type of consistency that the Supreme Court majority was hoping to facilitate by rejecting a “judge-empowering interest-balancing inquiry.” Given Heller’s directive that “the right of law-abiding, responsible citizens to use arms in defense of hearth and home is elevated above all other interests,” the majority’s concerns about interest-balancing might be well-taken in the public-housing context—after all, blanket lease prohibitions completely prevent individuals from keeping guns in their homes for self-defense, and it’s difficult to view the pre-Bruen decisions upholding such provisions as consistent with a right to armed self-defense that is strongest within the home.
Moreover, the Tennessee Court of Appeals’ application of the sensitive places doctrine here seems correct. Bruen requires a historical-analogical approach to determine whether a given location may be deemed sensitive. The court’s conclusion that modern-day public housing units are not analogous to polling places and legislative assemblies where guns were prohibited around the time of the Founding is well-reasoned. Public housing units are fundamentally distinct in that they are someone’s primary residence—polling places, legislative assemblies, and courthouses are not.
The decision in Braden, however, also highlights deficiencies in how other courts have evaluated sensitive-places laws post-Bruen. For example, the recent decision striking down large portions of New York’s sensitive-places list relied primarily on small differences between modern-day locations and their potential historical analogues: modern-day stadiums and concert halls are not relevantly similar to “public assemblies” in the 1800s, the judge found, because that term likely required that the attendees were specifically exercising constitutional rights. The decision in Braden, by contrast, illustrates the type of broad, fundamental difference in kind that properly makes a historical law non-analogous. The “residential use” distinction is one appropriate way to demarcate historical comparators—a historical firearms prohibition that applied only to non-residential locations cannot support a modern law banning guns in residences, and vice versa.