Second Amendment Case Doesn’t Prohibit HOAs Banning Firearms

Question: In a recent column you said that a Glendale HOA could probably enforce a CC&R prohibiting firearms in the community. How can this CC&R be enforceable in light of the Heller decision of the United States Supreme Court?

Answer: In 2008 the United States Supreme Court in the Heller decision ruled that the Second Amendment of the Constitution prohibited the enforcement of a Washington, D.C. law that banned handguns in the home. (“The handgun, out of all firearms, is considered by the American people to be the quintessential self-defense weapon.”). Therefore, any state like Arizona or a city like Phoenix, similar to the federal district of Washington, D.C., cannot prohibit by public regulation the possession of handguns in a home. CC&Rs, however, are private regulations adopted by homeowners, not public regulations adopted by states, and cities. Therefore, the Heller decision would probably not prohibit a CC&R from banning firearms in the community.

Note: The Arizona Legislature could probably pass Second Amendment legislation prohibiting a CC&R from banning firearms in the community. The Arizona Legislature has already passed legislation protecting First Amendment free-speech rights of homeowners by prohibiting CC&Rs from banning “for sale” signs and the display of certain flags: the American flag, the POW/MIA flag, the Arizona state flag, an Arizona Indian nations flag, and the “Don’t Tread on Me” Gadsen flag.

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