Guns And Leases
March 2, 2023
Denise Holliday, ESQ.
Hull, Holliday & Holliday PLC
Every year, events occur that cause some to renew their cries for stricter gun control. In fact, given the recent gun violence in California during January 2023, a state with some of the most prohibitive gun laws, Governor Newsome has vowed to create new laws impacting gun ownership and the right to carry guns in certain places. The question this country has been grappling with for decades is “How far can the Government go in restricting an individual’s right to keep and bear arms?” While this issue evokes passion on both sides, in the Landlord/Tenant arena, the question becomes, “Can a Landlord prohibit or limit Tenants from possessing firearms on the property?”
The Second Amendment to the Constitution of the United States provides “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
At first glance, it appears the Landlord may not prohibit or limit another person’s Constitutional right to possess a firearm. However, there are many instances where a property owner can limit otherwise protected conduct. While a person has freedom of speech, a landlord can prohibit the use of abusive and harassing language toward others. The right to freedom of religion doesn’t prevent the landlord’s ability to prohibit sacrificing of animals on property.
Aside from constitutional issues, the Federal and State Fair Housing Acts limit what a private property owner can regulate on his property and ensures that policies and procedures do not unfairly or disproportionately impact a “protected class” (race, color, religion, sex/sexual identity/preference, disability, familial status, or country of origin). By way of example, Landlord can prohibit pets, but not assistive animals for disabled residents.
In the area of guns, the Supreme Court has provided guidance on what a governmental entity can or cannot regulate. Heller was a landmark case in which the Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm for “traditionally lawful purposes, such as self-defense within the home and within federal enclaves.” McDonald expanded that that ruling to include the right of an individual to “keep and bear arms” as incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the States and local governments. Bruen shifted the discussion from whether Americans can have guns at home or in public to where those guns can be carried.
Although those cases prohibit Federal, State, and local governments from infringing upon the individual right to keep and bear arms, the 2nd amendment does not limit property owners from restricting the presence of guns. HUD has been surprisingly quiet on this issue, and this may be the reason that some states have enacted laws addressing it. Tennessee specifically allows a landlord to prohibit guns, while Minnesota forbids landlords from banning legal possession of firearms.
Because Arizona has no laws governing this issue, the matter then reverts to the property owner’s rights and the law of contract. If a Landlord does not want firearms on his property or seeks to limit where those guns may be carried, a lease provision addressing this will be upheld.
As you contemplate whether to implement restrictions on firearms, you may be wondering what other Arizona landlords are doing. A quick survey revealed that a majority of multifamily communities include a leasing provision that permits firearms in the apartment and to be transported to a vehicle, but prohibits a firearm in the leasing office or any common area. Interestingly, a prohibition on guns in single-family rentals is a very rare leasing term. Bottom line, as an Arizona landlord, whether to include a firearms clause is a business decision. You can limit, restrict, prohibit, or open your own shooting range (subject to local regulations)!
By Denise and Kevin Holliday, Partners at Hull, Holliday & Holliday, Attorneys at Law.