Cohousing-L Mailing List: Re: guns and cigarettes

[steve boylan (boylan]

Andrew pondered:

> Pardon my ignorance but does the US constitution actually prevent a
> community from banning firearms within its environs ?

and Ann attempted a reply.  At the risk of tossing volatile fuel on a
smoldering flame, I'll try to clarify a little.

One of the things that makes answering Andrew's question more complicated
than a simple yes-or-no is the "layered" nature of American law.
Technically, the United States Constitution spells out the rules and
limitations on the FEDERAL government.  Under the Constitution, the United
States Congress cannot simply ban all firearms.

The next layer down is the states - and the rules vary widely from state
to state.  Some states don't have any constitutional statements regarding
firearms, a few echo the United States Constitution, and quite a few
call for much broader personal rights.  And then each state and locality
is free to interpret to some extent how the Federal and state laws apply
in their local courts.

And people wonder why we need so many lawyers ...

The last time I looked into gun regulation, the overall consensus among
the legal community was that, first, the Federal government can place
limits on what kinds of firearms can be owned by individuals ("No, son,
you can't have a fully automatic M-16.  You'll have to settle for a
semi-automatic one."), and can regulate ownership and trading in firearms.
State and local governments are generally free (within the constraints of
the state constitutions) to place further restrictions on when, where, and
what kinds of guns people can own and use.  Some cities tried for outright
bans, which led to legal challenges, and a few tried to make gun ownership
mandatory, which ran afoul of those other pesky Constitutional amendments.
Each attempt at changing the laws regarding firearms results in legal
challenges, fueled by either gun proponents or opponents.

On top of all those layers of regulation, residential developments - like
cohousing (this is a cohousing list, remember?  :-) ) - can add a whole
new category of restrictions:   Covenants, Conditions and Restrictions
(CC&Rs).  Back when I looked at gun regulation a couple of years ago, the
lawyerly consensus was that yes, a Homeowners' Assocation can indeed
include a provision completely banning the possesion of firearms in a
unit, and such a provision would be legally enforceable and upheld by the
courts.  The courts generally regard CC&Rs as private contracts, and tend
to favor the status quo.  ("Hey, you bought the house even though you knew
these rules were in place.  It's not a problem for my Court.  Case
dismissed.")  Only a small portion of what can go into CC&Rs is regulated
in any way.  In cohousing, the CC&Rs generally contain quite a bit that
isn't usually part of such agreements - but it's up to the community to
define what belongs in those agreements.

There's a fair amount of information available on-line.  One good site
with legal information, rather than pro- or anti-gun arguments, is the
"JURIST" legal education site at the University of Pittsburgh:

        http://jurist.law.pitt.edu/gunlaw.htm

If you want to check the specifics of current local gun laws, the NRA has
an extensive database at:

        http://www.nraila.org/GunLaws.asp

And a good overall resource for basic questions like "what the heck are
CC&Rs??" is nolo.com:

        http://www.nolo.com

I hope this gives a little bit of perspective on the discussion.

Meanwhile, does anybody have a good technique for making a common-meal-
sized batch of risotto?

                                - - Steve


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