Tennessee Court Says YES! Tenants of Public Housing Have Right to Possess Guns

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Tennessee – -(AmmoLand.com)- On October 13, 2022, the Tennessee Court of Appeals released a decision that addresses whether tenants in a public housing project can be forced by government landlords to “waive” their 2nd Amendment rights. The decision came in the matter of Columbia Housing & Redevelopment Corp. v. Kinsley Braden, M2021-00329-COA-R3-CV.

The litigation arouse in Maury County, Tennessee, when the landlord, Columbia Housing & Redevelopment Corporation, filed a civil action to evict Kinsley Braden, a tenant, “for possessing a firearm in his apartment in contravention of the lease agreement.” Columbia Housing is a corporation that provides subsidized housing for the City of Columbia pursuant to Tennessee’s Housing Authorities Law. It operated a multi-family, low-income public housing complex in Columbia, Tennessee.

The tenant voluntarily signed a lease that contained a provision prohibiting firearms on the property. When Columbia Housing learned that he had a firearm in his apartment, it moved forward to evict him. The tenant opposed the eviction by claiming that the lease agreement, which was with a government agent, violated his rights under the Second Amendment. The trial court rejected the defense and ruled in favor of the landlord.

The Court of Appeals found it significant and undisputed that the landlord was a governmental entity. As such, the Court concluded that it was bound to act subject to the restrictions on government action imposed by the constitution. It also found that “the unconstitutional conditions doctrine ‘prevent[s] the government from coercing people into giving up’ their constitutional rights.”

Columbia Housing had argued that low-income housing was not protected because it was a “sensitive place” under the Supreme Court’s decisions in Heller and New York State Rifle and Pistol Assoc. v. Bruen. The Court of Appeals rejected that argument based in part on the analysis set forth by the U.S. Supreme Court in Bruen regarding the issue of “sensitive places” and the national tradition dating to the time of the Second Amendment, which defines what those places are. The Court of Appeals also noted that unlike some categories of sensitive places that the Supreme Court has referenced, this case involved an individual’s private home, not a public venue.

This may be the first reported decision by an appellate court in Tennessee that examines the decision in Bruen, and that also looks at the evolving and unsettled sensitive places doctrine. The discussion of the doctrine by the Court of Appeals is only enough to resolve the case before it, but it is significant because it clearly shows adherence by the Court of Appeals to what the U.S. Supreme Court has held.

One such exception is the concept of “sensitive places,” a concept Columbia Housing relies upon to justify its prohibition. In Heller, the Supreme Court held that the government could constitutionally prohibit possession of firearms in “sensitive places.” 554 U.S. at 626. Under this exception, numerous courts have held that laws “forbidding the carrying of firearms in sensitive places such as schools and government buildings” do not violate the Second Amendment. See Heller, 554 U.S. at 626; see also Bruen, 142 S. Ct. at 2133. Moreover, and significantly, some scholars believe that the “sensitive places” concept may apply to public housing. See Jamie L. Wershbale, The Second Amendment Under a Government Landlord: Is There a Right to Keep and Bear Legal Firearms in Public Housing?, 84 St. John’s L. Rev. 995, 1018–20 (2010).

More recently, however, the Court in Bruen clarified that, when determining whether a place is a “sensitive place,” courts should look to those places where weapons were historical “altogether prohibited” and determine whether it is “settled that [certain] locations were ‘sensitive places,’” then “use analogies to those historical regulations of ‘sensitive places’ to determine [whether] modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” 142 S. Ct. at 2133. Thus, we must determine whether handguns have been historically prohibited in public housing.

Columbia Housing & Redevelopment Corp. v. Kinsley Braden, M2021-00329-COA-R3-CV

Of course, neither Heller nor Bruen were specifically addressing laws that banned firearms in places like “schools and government buildings” – such statements were examples offered by the Court in its discussion, which may well have to await a factual case on point in the future. However, it is clear that the U.S. Supreme Court is open to the idea that there may be one or more exceptions to the “shall not be infringed” prohibition of the Second Amendment, but if so, those would only apply in such “sensitive places”. The Supreme Court has also made clear that the concept of a “sensitive place” is not based on what a modern legislature may declare. Instead, the sensitive places doctrine, at least for now, is focused on the national tradition of regulation that existed in 1791 when the Second Amendment was adopted by the People and against the government.

The Bruen decision and the evolving clarity that the prohibitions on infringements mandated by the Second Amendment suggest that several Tennessee laws and regulations are at present likely unconstitutional and should be repealed by the Legislature voluntarily before being forced to do so by a state or federal court. What are some of these? Consider these non-exclusive examples:

  • Prohibitions on carrying in most public buildings;
  • Prohibitions on carrying in public parks, greenways, campgrounds, and recreational facilities;
  • Prohibitions on carrying in daycare facilities;
  • Prohibitions on carrying on public transit;
  • Prohibitions on carrying on private property (to the extent the government imposes criminal sanctions for doing so);
  • Prohibitions in carrying in restaurants;
  • Prohibitions on being in possession of a handgun while consuming alcohol;
  • Prohibitions on possessing a handgun or firearm during hunting seasons or while training dogs;
  • Prohibitions on carrying on college campuses;
  • Prohibitions on carrying on private K-12 properties; and
  • Prohibitions on possessing a firearm in areas inhabited by big game.

For years, true Second Amendment advocates have pushed government officials for the removal of these and similar infringements that are imposed by state and local laws and regulations in Tennessee. By and large, the Tennessee Legislature and its Governors have turned a deaf ear to even the possibility that these laws and regulations are unconstitutional infringements. When action has occurred, it has been at a snail’s pace on the theory of incrementalism rather than at the patriot’s cry of its unconstitutional. The determination that a law or regulation is or even may be unconstitutional calls for immediate action – not deferrals and “summer studies.”

John Harris
Executive Director
[email protected]

Joining and supporting TFA is an investment in the fight to restore our constitutional rights and to fight against politicians who are willing to sell their votes and your rights to whichever business interest gives them the most money!


About Tennessee Firearms Association:

The Tennessee Firearms Association is dedicated to defending the right to keep and bear arms and promoting the responsible use, ownership, and carrying of firearms.

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Montana454Casull

There is no such thing as a ” sensitive place ” just infringing morons that are tyrants that don’t honor thier oath to uphold the constitution.

Hazcat

Though I believe ALL laws restricting the 2A to be unconstitutional these three are truly baffling:

  • Prohibitions on carrying in public parks, greenways, campgrounds, and recreational facilities;
  • Prohibitions on possessing a handgun or firearm during hunting seasons or while training dogs;
  • Prohibitions on possessing a firearm in areas inhabited by big game.
gregs

following the state’s logic to the extreme, they would be allowed to restrict/violate everyone’s civil rights and designate who was allowed to obtain subsidized housing, what they could say on said grounds, if leo’s could enter any unit without a search warrant. sounds like a communism to me.

HankB

A couple of decades ago, LEOs in Chicago WERE entering and searching public housing units without any warrants. Door to door. I remember one Black woman on TV being interviewed about it and talking about the cops “with their dirty hands” going through her lingerie drawer, meaning she had to wash everything again. Cops hit some of the same units multiple times until bad publicity and a court order stopped this practice.

Bubba

Can anyone show history of the second amendment being infringed during the late 1700’s and early1800s
Can anyone show places that were prohibiting firearms during that time?
Also, there is no standing for sensitive places yet.
Someone is going to be forced to get this issue to go back to SCOTUS for a decision on what is sensitive and what is not.

Bruen has been a good start. It’s going to be a slow process to restore our Constitutional Rights.

Last edited 2 months ago by Bubba
DIYinSTL

I think UVA had a weapons prohibition back then. It wasn’t about it being a sensitive place; dueling was a big thing back then and the student body needed some restraint lest the graduating class be reduced to single digits.

swmft

judges and jury members were often armed

Steve

That’s why I cannot stand that whole series of movies that came out glorifying Wyatt Earp and his brothers. Scum like Earp and others banned guns in places like Dodge City, Tombstone etc..Sam Elliott played his character’s roles with a special kind of zeal. So many like him are known to be unabashed liberal pukes off screen and yet, they made a fortune playing gun toting tough guys on screen.

DC

It is time we work to better define “sensitive places”. Even places where flammable materials are present are not really sensitive to possession, but rather to discharge of firearms. In many places, keeping weapons holstered, safetied, or pointed in safe directions unless responding appropriately to a threat, would achieve sufficient safety. Think of “no smoking” signs: they usually don’t say “possession of tobacco products prohibited. I’ve been in a lot of government facilities where only small areas should really need extra protections. You shouldn’t have to disarm and walk through dangerous areas just to pay your taxes at a bullet-proof… Read more »

DIYinSTL

I recall the NRA winning some cases like this well over a decade ago. Back when the NRA spent at least a little time and money defending our liberty.

TNJEWBOY

Gee this happened right down the road from me.

Say, why didn’t John Harris and his Tennessee Firearms Association support my campaign for State Representative?

http://www.vote4lenny.com