Can an association restrict an individual’s right to bear arms? The answer, though nuanced, is likely in the affirmative. An association’s board has wide authority under the governing documents to restrict everything from paint color to holiday decorations, as long as the action is reasonable. See, e.g., Allnutt v High Court of Foresters, 62 Mich 110, 28 NW 802 (1886); see also MCL 559.146. In addition, the Michigan Condominium Act, MCL 559.101, et seq., (the “Act”) permits bylaw provisions “[a]s are deemed appropriate for the administration of the condominium project not inconsistent with [the Act] or any other applicable laws.” MCL 559.156(a).
The board’s ability to restrict members’ behavior is rooted in the fact that the relationship between an association and its resident members is contractual. See Mayo v Great Lakes Greyhound Lines, 333 Mich 205, 214, 52 NW2d 665 (1952) (providing that the members of a voluntary association are bound by the association’s constitution and general laws); Kauffman v Chicago Corp., 187 Mich App. 284, 287, 466 NW2d 726 (1991) (stating that the constitutions, rules, and bylaws of the entity at issue “constitute[d] a contract by all members” of the entity “with each other and with the [entity] itself”); Allied Supermarkets, Inc. v Grocer’s Dairy Co., 45 Mich App. 310, 315, 206 NW2d 490 (1973) (“The bylaws of a corporation, so long as adopted in conformity with state law, constitute a binding contract between the corporation and its shareholders.”).
Interpretation of the Second Amendment to the United States Constitution, and whether it ensures an individual’s right to bear arms, is regularly discussed in our kitchens, our offices and our boardrooms. Two
seminal cases, Dist. of Columbia v Heller, 554 US 570, 128 SCt 2783 (2008) and McDonald v City of Chicago, 561 U.S. 742, 130 SCt 3020 (2010), provided clear guidelines regarding handguns in the home. In Heller, the United States Supreme Court ruled that the Second Amendment precludes the government from imposing any “prohibition of handguns held and used for self-defense in the home.” In McDonald, the Supreme Court extended the rights of the Second Amendment, as specified in Heller, to the states through the Fourteenth Amendment’s due process clause.
The Heller and McDonald rulings make clear that the government is unable to restrict an individual’s Second Amendment right to handgun possession in their own home. But how does the Second Amendment apply when an individual resides in a common interest community and is bound by private contract? An association may very rightly be concerned with the threat of gun violence in its community and therefore wish to pursue a restriction on guns to limit crimes and casualties. This article will discuss under what circumstances a private entity such as an association might limit gun rights in a residential association.
Firearm Ban Inside Unit
The Second Amendment applies to actions of the federal government; through the Fourteenth Amendment, it also applies to state and local governments, as well as state actors. As private entities, the Second Amendment would only apply to community associations if a court determined they were state actors. While a handful of jurisdictions have characterized residential associations as “quasi-state” actors, those rulings do not reflect the consensus. Rather, the prevailing view is that private entities have broad control of their property, and that control includes a right to restrict firearms on its property.
In a constitutional context, there is no case law that extends the rights outlined in Heller – to bear arms in one’s home – to areas of a private community, including inside members’ homes. Indeed, such an
extension would abrogate the basic premise that an individual has broad control of their private property. This understanding was well stated in GeorgiaCarry.Org, Inc. v Georgia, 687 F3d 1244, 1265 (11th Cir. 2012), where the Eleventh Circuit Court of Appeals concluded that the right to dominion over private property should not be sacrificed to the Second Amendment, stating: “The Founding Fathers placed the right to private property upon the highest of pedestals, standing side by side with the right to personal security that underscores the Second Amendment.” Id. at 1265 (11th Cir. 2012). The GeorgiaCarry.Org court further stated: “An individual’s right to bear arms as enshrined in the Second Amendment, whatever its full scope, certainly must be limited by the equally fundamental right of a private property owner to exercise exclusive dominion and control over its land.” The Utah Supreme Court also cemented the ability of private enterprise to restrict gun possession on its premises, stating “the state of Utah rejects the idea that, in the face of a freely entered-into agreement to the contrary, an employee has the right to carry a firearm on his employer’s premises.” Hansen v Am. Online, Inc., 2004 UT 62, 25, 96 P.3d 950, 956.
Since an entity has the ability to exercise “dominion and control” over its privately owned property, a residential association may likely include provisions in its governing documents prohibiting firearms within
the community, including inside members’ units. For example, a developer or board could establish a restriction prohibiting the carrying or use of “dangerous items” on the premises; such restrictions would of course encompass weapons and guns. However, any dangerous item prohibition would still have to be reasonable, fairly enforced and properly approved.
Firearm Ban in Common Areas and at Meetings
The ability for private actors to control their personal property is commonly known as a pre-existing right. In fact, the GeorgiaCarry.Org court noted that “William Blackstone described a private property owner’s
right to exclusive control over his or her own property as a sacred and inviolable right[ ].” Supra at 1261- 62 (11th Cir. 2012). The court also stated that the founding fathers sought to protect the fundamental rights of property, not limit them, through the Constitution and Bill of Rights. Id. at 1265. Thus, to safeguard the health of its community, a board could almost certainly impose a prohibition against guns in the clubhouse, pool, etc. In fact, restrictions on the use of firearms within the common areas are found in most governing documents. It likewise follows that an association likely has broad authority to restrict the use and carry of firearms at meetings.
Many state laws require a private entity to take specific action to place the public on notice that it has invoked its right to ban guns. Some states require businesses post different versions of “no gun” signs; Illinois for example requires an entity to “post a sign…indicating that firearms are prohibited on the property.” 430 Ill. Comp. Stat. Ann. 66/65. Michigan does not have an equivalent requirement. However, since the common areas of residential communities are private property, an association likely does need not need to use signage as a means of notifying its members of a properly adopted restriction. This may be a different scenario if the common areas are used by the public, or an association conducts business on public property.
State and Local Restrictions
Most state laws contain penal codes against the intentional discharge of a firearm at a dwelling or potentially occupied structure. Thus, as a practical matter, an association need not include any such restriction in its governing documents, as such acts may already rise to criminal conduct. For example,
MCL 750.234b provides that “ an individual who intentionally discharges a firearm at a facility that he or she knows or has reason to believe is a dwelling or a potentially occupied structure, whether or not the dwelling or structure is actually occupied at the time the firearm is discharged, is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $10,000.00, or both.” Similarly, many municipalities have various restrictions against the use of firearms in residential communities.
Interestingly, on September 17, 2019, House Bill No. 4976 was introduced in the Michigan House of Representatives in an effort to persuade property owners to lift their gun free policies. If passed, the bill would ensure that property owners who designate their property as gun free would be responsible for the safety of an individual entering the property. Further, the bill would make the property owner liable in a civil action for any damages that result from injuries to an individual as a result of the policy. Such a bill would force property owners to give up the freedom to choose how to control private property, as the threat of liability would certainly be too great a burden. As of this date, the fate of the bill remains to be seen.
The American legal system affords great deference to the rights of private entities to exercise dominion over their property. Therefore, an association can very likely limit the carrying and use of firearms within the community as a private actor. As much as the privileges delineated by the Second Amendment are ensconced in public discourse, the ability for private parties to be “King of their own Castle” is perhaps unequivocal.