We recently examined an interesting question – can an association prohibit co-owners from bringing firearms to meetings of members held in the common elements?

There is no case law specifically confirming the answer to this question, but this kind of rule or restriction would likely be defensible if challenged in court. The published legal scholarship on the extent to which community associations might regulate firearms focuses on the unit or home, but it’s generally understood among community association attorneys that the board’s ability to control the common elements under the governing documents includes the ability to restrict firearms in those areas as a matter of basic property rights.[1]

Nationwide, some associations have in fact implemented rules which prohibit firearms in the common elements, with exceptions for transporting firearms to and from the unit or home.[2] These kinds of rules are not widespread because associations usually do this as a reaction to a specific event as opposed to a proactive measure. This is understandable, as there is some risk of stirring up emotions of members who might interpret the rule as infringing on their Second Amendment rights (even if that claim may not hold up in court). In other words, the old adage “if it isn’t broken, don’t fix it” would seem to apply here.

In addition, some attorneys have questioned how a restriction on firearms in the common elements would be enforced as a practical matter – if they are concealed, how would the Board know who is carrying a gun? Would you require that everyone attending a meeting submit to a body search? Probably not, but at least you could easily enforce it against open-carried firearms.

What do you do if you have no restriction and someone shows up at a meeting open-carrying a firearm? If you are uncomfortable, you can certainly adjourn and attempt to address the issue before meeting again. You might decide to adopt a rule or resolution, as the case may be, in the interim prohibiting firearms in the common elements except for the purpose of transport to and from the unit. Your association’s attorney may also be able to assist in clarifying for the members in writing the difference between control of the common elements and control of the individual units with respect to property rights and the ability to adopt restrictions on same. And remember, you have the ability to attend meetings by remote communication under the Michigan Nonprofit Corporation Act.

Of course, the answer is much less clear if an association were to consider a ban on firearms that includes units or individual homes, which the association does not control.  In 2007, the Nashboro Village community in Tennessee attempted to adopt such a rule, but it backed down after strong pushback and threats of litigation from some association members.[3] In fact, it’s hard to imagine that any association would want to engage in a long, expensive battle over this issue, which could be expected to be appealed all the way to the Supreme Court of the United States. Additionally, the association could expect the entire nation’s attention to be focused on the community, which may include objections from the National Rifle Association and other groups which may lend legal and financial support to the opposing side.

Nevertheless, the legal theories with respect to a potential ban on firearms within association units or homes are noteworthy due to the special nature of a community association.

The Second Amendment would obviously be a consideration, especially in light of the decisions in District of Columbia v. Heller[4] and the following McDonald v. City of Chicago.[5] In these cases, the Supreme Court of the United States confirmed the federal government cannot ban possession in one’s home and then further confirmed that states/municipalities cannot ban possession in the home. Christopher Wahl notes, “Heller and McDonald mean that, if an HOA imposing a handgun restriction [within units/homes] is a state actor, disaffected homeowners may bring a constitutional claim for violation of the Second Amendment.”[6] There is case law recognizing the quasi-governmental nature of associations, so it may be possible that an association could be considered a “state actor” in this context, although that may even depend on the extent of specific services provided by the association, which can vary widely between associations.

Other theoretical considerations include the specific state constitution provisions with respect to rights to bear arms; safety; public policy considerations; contract law and the extent to which you can agree to sign away certain rights; whether other housing is available without the restriction; the difference between a complete ban and a limited ban on certain types of firearms, and more, all of which are described further in detail by the resources cited herein.

Assuming you don’t want your association to be a test case, it may be best for now to simply ask your experienced community association lawyer to consider stating in your governing documents that illegal use of firearms shall not be permitted, which everyone can agree on.

By Robert Meisner, Esq. and Mark Petrie, Legal Assistant

[1] Joseph E. Adams, Robin L. Strohm, Kimberly M. Sutter and Marc D. Markel, Lawyers, Guns and Covenants: Can Community Associations Regulate Gun Possession? Community Associations Institute 2017 Law Seminar

[2] Mike Ramsey, Who’s Packing? (And Does it Matter?), Common Ground, Jan/Feb 2015

[3] Comment, Keeping Heller Out of the Home: Homeowners Associations and the Right to Keep and Bear Arms, 15 U. Pa. J. Const. L. 1003

[4] 554 U.S. 570, 628-29 (2008).

[5] 130 S. Ct. 3020 (2010).

[6] Supra note 3 at 1015.