This is sort-of related to "Can HOAs Ban Guns?" -- a recent story about an HOA in Texas that prohibited a home-based firearms business -- and "Can HOAs Ban Guns? Part 2" (a response to Part 1 being locked). But since this is more of a hypothetical situation, I figure it is a separate topic.
Imagine sometime in the future, when the Second Amendment is actually enforced, and federal, state, and local governments cannot infringe on the right to keep and bear arms. What's an out-of-luck gun control lobby to do?
One possible target for their efforts would be homeowners associations, which govern the lives of 60 million Americans (1/5 of the population).
Since HOAs are private corporations, the Second Amendment does not apply. What happens if/when HOAs start banning guns?
The following is shamelessly copied from a comment at Evan McKenzie's blog.
The only place I can see where the above comment got it wrong is the statement that "such a change to the rules prohibiting firearms would require approval of the homeowners." While amendments to CC&Rs usually require some type of super-majority vote of homeowners in an HOA, the Board of Directors in most HOAs have the power to unilaterally enact other rules and regulations not specifically addressed by the CC&Rs. This was discussed in "Can HOAs Ban Guns?" and "Can HOAs Ban Guns? Part 2"
Imagine sometime in the future, when the Second Amendment is actually enforced, and federal, state, and local governments cannot infringe on the right to keep and bear arms. What's an out-of-luck gun control lobby to do?
One possible target for their efforts would be homeowners associations, which govern the lives of 60 million Americans (1/5 of the population).
Since HOAs are private corporations, the Second Amendment does not apply. What happens if/when HOAs start banning guns?
The following is shamelessly copied from a comment at Evan McKenzie's blog.
Dear HOA Board of Directors:
As you are aware, there have been several incidents of violence, including shootings, directed at HOA board members and homeowners in recent years (e.g., the shooting death of Rita Hohmeier in Franlink Park, IL, and the fatal shootings at the Ventena Lakes HOA meeting).
Scientific statistics compiled by the University of Anglia’s Gun Research Unit (GRU) show that most people are shot by somebody they know, which means that you are at greatest risk from other home owners within your community who own guns.
Although our lawmakers will not stand up to the gun lobby, and refuse to curtail the easy access to guns in this country, you can do something about this problem and protect yourselves.
HOAs have the power of small governments, but are shielded as corporations. Therefore, recent court rulings that erroneously refer to the second amendment as an individual right do not apply to your association. You have it within your power to amend the rules of the HOA to prohibit privately owned firearms in your common interest community.
In exchange for the benefits of common collective ownership, the residents elect a legislative/executive board and delegate powers to the HOA board. The courts have ruled that "The restrictions on the use of property in any common interest development may limit activities in the common areas as well as in the confines of the home itself" (Nahrstedt v . Lakeside Village Condominium Assn. (1994) 8 Cal.4th at p. 373).
In theory, such a change to the rules prohibiting firearms would require approval of the homeowners. However, in practice it is easy for an HOA board to produce the desired outcome of a homeowner election using perfectly legal methods, without resort to outright fraud. It is also possible to have the courts approve changes to the HOA rules without a vote by the members of the association.
If HOA home owners are eventually turned into renters — as has been proposed — then such a "no guns" policy change would be even easier.
Because HOAs are private corporations, many conservatives, libertarians, pro-business organizations, and private property advocates -- even those that normally support gun ownership -- will not oppose such a new policy. Their position is that HOAs can do whatever they want, since (1) the members voluntarily waived their rights, and (2) the interests of the HOA corporation take priority over the interests and rights of individual home owners. To them, HOA rules are simply a private contract matter between the HOA corporation and an individual home owner, and they have no desire to interfere with what they believe to be a free market.
The benefits of turning your community into a privatized gun free zone are twofold: (1) board members, and other home owners, would be protected from gun violence, and (2) the HOA would have another source of revenue, by levying fines against those home owners who insist on clinging to their guns, and seizing their homes through non-judicial foreclosure after fines and legal fees are imposed.
If you are interested in implementing such a change, our lawyers would be more than willing to assist you. Or, if you live in a municipality sympathetic to our goals, we can put you in touch with the city’s mayor and legal office.
If you are not interested in banning firearms within your HOA, we will be contacting your management company and attorney. We suspect they will be more sympathetic to our proposal, and may be able to act without your approval to make your common interest community a safer place.
Sincerely yours,
The Gun Control Lobby
The only place I can see where the above comment got it wrong is the statement that "such a change to the rules prohibiting firearms would require approval of the homeowners." While amendments to CC&Rs usually require some type of super-majority vote of homeowners in an HOA, the Board of Directors in most HOAs have the power to unilaterally enact other rules and regulations not specifically addressed by the CC&Rs. This was discussed in "Can HOAs Ban Guns?" and "Can HOAs Ban Guns? Part 2"
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