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Tennessee Court of Appeals Holds Tenants of Public Housing Have Right to Possess Firearms constitutionally protected rights and, perhaps most
effectively, terminate the agency’s existence entirely. We did not
have or need the ATF when this nation was founded and we don’t need it
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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 the 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 historically “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 which 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 day care 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
johnharris@tennesseefirearms.com
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!
TFA Website: www.tennesseefirearms.com
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