Litigation Highlight: New York Federal Judge Strikes Down Public Housing Handgun Ban

On January 30, District Judge Glenn Suddaby of the Northern District of New York granted a motion for preliminary injunction of a Cortland, New York ban on handgun possession by public housing tenants in Hunter v. Cortland Housing Authority.  Judge Suddaby has played a major role in post-Bruen Second Amendment litigation thus far, previously issuing a series of decisions in a high-profile challenge to New York’s concealed carry licensing rules and locational gun restrictions in Antonyuk v. Chiumento. (The Second Circuit subsequently reached a mixed decision on appeal, affirming some aspects of his decision while vacating the injunction as to certain locational bans).  In Hunter, Judge Suddaby was presented with a seemingly less complex inquiry: whether the Second Amendment permits a public housing authority to require tenants to enter into a lease agreement prohibiting the possession of handguns on authority property, including personal residences.[1]

The defendant housing authority in Hunter argued that the ban is consistent with historical tradition under a “more nuanced” analysis.  Bruen permits a more flexible approach to analogy when modern laws address phenomena unknown at the time of the Founding, and here the housing authority asserted that public housing was unknown at the Founding and that this nuanced analysis allowed reasoning by analogy to restrictions on fundamental rights unrelated to firearms or the Second Amendment.  Namely, the housing authority suggested that

public housing authorities may limit certain firearms on their properties despite the fact that the guarantees of the Second Amendment are at their zenith within the home, just as public housing authorities may limit who may be part of a tenant’s household despite the deeply rooted fundamental right of a family to live together as a family. 

Essentially, the housing authority’s argument was that the established right of public housing authorities to exclude certain family members from authority property (those who use illegal drugs or are registered sex offenders, for example), despite the fundamental right to live together as a family and absolute respect for that right around the Founding, must imply a corollary right to ban firearms today notwithstanding the Second Amendment. 

This argument has three main parts: (1) “The concept of the fundamental right of a family is as deeply rooted in this Nation’s history” as the Second Amendment right to keep and bear arms; (2) “There is a close analogy that can be made between governmental regulation of family within one’s home and a restriction of firearms in the same”; (3) “the lease provision [banning] firearms . . . should [] be upheld based upon the historic analogy of the government limiting the equivalent fundamental family rights of individuals in public housing” because—just as changed circumstances now allow housing authorities to exclude drug users and other criminals from public housing notwithstanding the right to reside with family—changes in society similarly allow housing authorities to ban firearms notwithstanding the Second Amendment.  The Supreme Court has upheld a housing authority’s ability to exclude tenants’ family members from public housing, notwithstanding the due process interest in familial unity.  The Court ruled in 2002 that provisions of federal law requiring public housing leases to allow the authority discretion to terminate tenancy based on illegal drug use (including prohibiting illegal drug users or alcohol abusers, even if family members of a tenant, from visiting or residing in public housing) presented no constitutional problem.

Judge Suddaby first observed that, in his view, public housing is not necessarily an unprecedented phenomenon that supports a more nuanced historical analysis.  Rather, he suggested that the initial step was to search for historical gun regulations in 18^th and 19^th century “almshouses, poor-houses, and poor-farms”; or, potentially, boarding houses or shared residences.  Mindful of the Second Circuit’s direction in Antonyuk v. Chiumento to avoid over-relying on historical silences, Judge Suddaby held that even a more nuanced approach would not necessarily justify comparing the public housing ban to a history of ­non-firearm regulation (such as restrictions on the right to reside with family).  Observing that drug-related exclusions are often based on criminal conduct, Judge Suddaby also was not persuaded “that, during the time periods in close proximity to 1791 and 1868, the government was never permitted to limit one’s fundamental right to live together with one’s family.”  As the judge observed,

one cannot confidently reason that the government’s current limitation on one’s fundamental right to family in a publicly funded home is such a permissible departure from the government’s historical ability to limit one’s fundamental right to family that the departure warrants a commensurate invasion of one’s Second Amendment rights.

Judge Suddaby also found the ban broadly inconsistent with Heller and rejected the argument that it is permissible because it might allow residents to possess rifles, shotguns or non-firearm weapons (Heller, of course, also dealt with a handgun ban and observed “that the American people have considered the handgun to be the quintessential self-defense weapon”).  Judge Suddaby issued the requested injunction, noting that the balance of the equities tilted heavily in the plaintiffs’ favor and that “the injunction is narrowly tailored to the enforcement of the Firearms Ban in CHA dwelling units.”

Hunter highlights how Bruen makes even legal analysis of straightforward, meritorious Second Amendment claims more obscure and illegible.  I believe this would be a relatively simple case under Heller.  The housing authority banned handguns in individual dwelling units as a mandatory lease condition, and Heller emphasized that Second Amendment rights are most expansive in “the home, where the need for defense of self, family, and property is most acute.”  Heller, of course, also endorsed “laws forbidding the carrying of firearms in sensitive places such as . . . government buildings.”  But Hunter brushed aside the idea that a public housing complex is the type of government building the Supreme Court had in mind—as did the Tennessee Court of Appeals in a 2022 decision we covered here.[2]  That seems correct.  Public housing is fundamentally unlike the “legislative assemblies, polling places, and courthouses” Bruen cited approvingly as sensitive government buildings, in that people reside in public housing.  An approach that permitted guns to be banned in the dwelling units of public housing complexes would thus create the odd situation where Second Amendment rights differ based on an individual’s ability to afford to live outside of public housing.

Under the old two-part test, the ban would have been subject to strict scrutiny and (presumably) the strong interest in permitting tenants to keep handguns for self-defense at home would have trumped the housing authority’s arguments about the ban’s potential policy benefits.  Despite withering scholarly and judicial criticism of the two-part test and its purported malleability from certain quarters, I don’t think the outcome here would be in much doubt.[3]  Some state courts had applied intermediate scrutiny to invalidate even common-area public-housing gun bans prior to Bruen, as described in this prior post.  The analysis is straightforward: If handguns are banned in living spaces, that severely burdens (indeed, eliminates) the right to armed self-defense within the home for tenants and requires an exceptionally strong government interest on the other side—one that the housing authority here does not seem particularly close to articulating. 

Yet the legal test is now much more attenuated from the common-sense view that the government cannot ban law-abiding citizens from keeping handguns in the home for self-defense.  I think Judge Suddaby is correct, in theory, that the closest analogue here would be a ban on guns in a 19^th century poorhouse.  At least, this is probably where the historical inquiry starts.  But using text, history, and tradition to resolve this case quickly devolves into a series of non-sensical historical comparisons that may actually under-protect the right to keep and bear arms, at least insofar as that right is principally a right to keep a gun in one’s home for self-defense.  Let’s take Judge Suddaby at his word that we don’t have readily available examples of historical poorhouse gun bans from around the Founding.  (I should note here that it’s not immediately clear one would expect to find such regulations, if they existed, in public-law records, as opposed to in private records which may or may not be preserved.  This strikes me as a situation potentially akin to public colleges—although the organizations were under government control, they may have promulgated their own rules.  And fully private charities, potentially including poorhouse-like lodging facilities, were “an important source of poor relief” in the Founding Era.)

What if a close examination of social practice, however, reveals an extreme amount of state authority that most today would find objectionable and improper?  It seems at least possible that if, as Judge Suddaby notes, “children could be separated from their families” in 19^th century poorhouses, other kinds of government overreach were also commonplace.  An 1883 investigation of a notorious Massachusetts almshouse revealed appalling conditions, including “cases of ill-treatment of patients, who were left for days without food, and unattended by a physician when sick.  Another report indicates that “poorhouses were designed to enforce discipline [and] ‘[s]piritous liquors,’ disorderly conduct, and profane language were forcefully regulated.”   In fact, in some states, pauper actions—where poor men, women, and children were sold to the highest bidder—persisted until the late 1800s.  

As Michael Katz explains in his seminal book on the subject, In the Shadow of the Poorhouse: A Social History of Welfare in America, poorhouses were “miserable, poorly managed, underfunded institutions, trapped by their own contradictions, [that] failed to meet any of the goals so confidently predicted by their sponsors.”  Katz notes that, up until the early 1800s, states employed a “mixture of auction, contract, outdoor relief [small allotments of money or food without requiring an individual to enter a state institution], and poorhouses” to address “pauperism.”  This was a phenomenon that many leading reformers of the time considered hereditary, with paupers “inherit[ing] their distaste for work and their fondness for drink from their pauper parents.”  During the height of the poorhouse era that followed,[4] “inmates [often] received worse treatment than criminals, worse even than animals.”  The line between pauperism and criminality was often blurred, and discipline occasionally exceeded even that which might be found in a prison (with residents forbidden to speak to one another about any topic other than their work, for example).

While the comparison between modern public housing and a 19th-century poorhouse might have some superficial logic, it quickly becomes absurd.  If government-controlled institutions could profoundly mistreat and even sell the poor around the time of the Founding, tear children away from parents, and impose severe punishment on tenants for disorderly conduct, foul language, or any other minor infraction, then of course there was no right among that group to possess firearms for self-defense while in a poorhouse (regardless of any formal ban).  The record indicates poorhouse residents didn’t have First Amendment rights either—at least nothing close to the modern concept of free speech rights.  The idea of such a legal challenge being brought at the time is almost laughable. 

This should not, however, dictate that a modern ban on guns in public housing is constitutional.  Rather, a court probably should not use America’s 18^th and 19^th century treatment of the poor as a model for anything.  Yet that is the funnel through which Bruen forces the analysis, at least when reduced to discrete locational comparisons.  Applying a higher-level framework such as the dangerousness principle urged by the Solicitor General in Rahimi may lend some clarity even to a case like Hunter.  If the historical principle is that the government can ban guns in public locations where gun carrying is especially dangerous, then a handgun ban that sweeps into the homes of law-abiding citizens seems to be immediately off the table.