Our goal in this chapter is to explore a concrete and seemingly discrete question: Can a legal gun owner face legal liability while cohabiting with a temporarily prohibited possessor? If, for example, a person is subject to an gun-prohibiting order because a judge has found that he poses an immediate risk to others, must his cohabiting spouse surrender her gun as well—especially at a time when her potential need for self-defense might be especially high?
Such questions suggest a collision between enforcement of person-based prohibitions and the constitutional rights of the non-prohibited persons with whom they live. As a practical matter, it is increasingly important to resolve that tension, as support grows for adoption of temporary gun prohibitions like emergency risk protection orders (ERPOs) and domestic violence restraining orders (DVROs).
In order to frame the discussion, Part I provides a short Second Amendment primer, focusing on the debate that was central to the Supreme Court’s seminal decision in Heller and showing how that debate cemented a view of the Amendment that is distinctly individualistic, home-bound, and focused on self-defense. Indeed, the Court seems to equate the self-defense interest of the gun-owner with that of the household as a collective.
As Part II shows, gun regulations like ERPOs and DVROs acknowledge and attempt address a different kind of gun threat: one that often originates within the home, not leveled against it. Especially as these legal devices continue to spread, it will be increasingly important to identify and understand their legal implications—including their impact on cohabitants. In particular, the doctrine of “constructive possession” attributes legal possession where a person can legally possess an object that is not in his or her immediate control. A temporarily prohibited person might therefore end up violating the terms of an order while living with a legal gun-owner. And as we show, that can turn otherwise-legal gun-owning cohabitants into accomplices, or subject them to liability for criminal negligence.
One solution to this problem is to require that cohabitants with knowledge of a gun-prohibiting order safely store their weapons so that the respondent cannot access them. And that, as Part III shows, brings us back to the Second Amendment. In Heller, the Supreme Court struck down a direct safe-storage requirement, concluding that such a requirement made it “impossible for citizens to use them for the core lawful purposes of self-defense.” Would a safe storage requirement in the ERPO/DVRO context similarly run afoul of the Constitution? We argue that it would not, and conclude with some thoughts about how evaluation of the question highlights central tensions within the broader Second Amendment debate.