I've heard this on several occasions, from people that I respect and who generally seem to be pretty informed and balanced.  I know at least two instructors I teach/taught with regularly who were paranoid about keeping their gun ownership low key, to the point of not wearing NRA t-shirts, lest they get kicked out by their condo boards.  But I've not heard of anyone actually being forced to choose between their condo and their guns.

Is this possible?  Where would I look for a definitive answer?

Few things to think about:

1.) Rights only apply from government actors to a private individual or entity, unless discrimination.
2.) Discrimination only applies to protected classes: race, gender, age (55+), sex, sexual orientation, religion, sometimes personal attributes (guy with no leg, disabilities etc.).
3.) Gun owner is not a protected class
4.) Political affiliation is not a protected class.   If someone comes to a gun safety class wearing nazi stickers, or I <3 Obama attire - you could tell them to GTFO if you wanted.  The same could probably be done with an initial application to a condo. However, if someone was in an agreement, there is no way you can get rid of them for their 1A speech.  I could keep you out, but once I let you in i.e. you paid the money etc. It's pretty much a done deal.

5.) I personally think there is a very strong land lord tenant code argument to be made.    Rules must have a benefit to the safety and security of the resident.  For instance, you couldn't tell me I can't lock my door, have a fire extinguisher, put up smoke alarms, put covers on my electrical sockets to prevent a child from shocking themselves. Hawaii land lord tenant code dictates a lot of this type of stuff, but I haven't seen very much 'court' related information on it to date.  For your condo to kick you out, they need to submit evidence that you are breaking the rules. You don't have to allow them into your belongings, and no court will side with the condo saying Yes, kick him out for wearing an NRA t-shirt, unless it was so stipulated in the initial agreement.

We were looking to make sure that the local government assisted housing residents were not prohibited from possession of a loaded firearm in the home.

What if I own my townhome?

What if I own my townhome?

I'm not super informed on the laws and biding agreements related to home owner associations, but from what I have learned, those rules and regulations must be signed and agreed upon prior to a person purchasing the home.  If you sign away your agreements, you are kind of losing footing.  That doesn't mean that those rules and regulations can't be challenged.  I don't really understand contract law, but I would think this is where that would end up.

Like FT's saying, they'd have a hell of a time proving it. 

HOA Board: "We saw Mr. Scammon take two rifle cases and a bunch of targets to his car the other day."
Me: "No, you didn't."
HOA Board: "Here's pictures"
Me:  "Oh, you caught me on the way to cello and violin practice.  It was lots of fun." 
HOA Board: "Well, then, what were the targets for?"
Me: "Did the agreement say I couldn't have targets?  My bad, dawg.  I'll get rid of those."

Having served on an HOA board, I can tell you that everything revolves around money.  The board's going to consult their attorney, and he's going to say that yes, they probably could kick you out, based on the contractual blahblahblah, BUT, there's also the Heller and McDonald decisions to think about, plus a whole boatload of second amendment groups who'd love to find a law-abiding gun owner who got kicked out of hearth and home for exercising his Constitutionally protected rights so they could sue the piss out of Shady Acres Townhomes AOAO.  In the end, I'll bet the board would decide it wasn't worth it.  Then again, that's purely anecdotal and IANAL.  Additionally, it's my experience that HOA boards are staffed almost exclusively by morons and neighborhood busybodies with nothing at all to occupy their time, so YMMV.

Additionally, it's my experience that HOA boards are staffed almost exclusively by morons and neighborhood busybodies with nothing at all to occupy their time, so YMMV.

See, this is what has me worried.  These are not the type of people who tend to be reasonable and well-informed, they're the type who think that anything black is an assault weapon and in need of being banned.

This is on my mind because we're looking to move, and in our price range, a condo is pretty much the only option.  What I don't want is to move into a place, have the neighbors become alarmed over the years, and start trying to change the rules to get me (or my guns) outed. 

I really wouldn't worry about it.  Although there's some rumblings about renewing this ban or that, and some people may disagree about carrying guns outside the home, it's basically a foregone conclusion for everyone that it's perfectly ok for people to have guns in their homes.  Even the Brady Campaign has been forced to admit that the right of an individual to keep guns at home is an inalienable right bestowed on everyone. 

See, this is what has me worried.  These are not the type of people who tend to be reasonable and well-informed, they're the type who think that anything black is an assault weapon and in need of being banned.

This is on my mind because we're looking to move, and in our price range, a condo is pretty much the only option.  What I don't want is to move into a place, have the neighbors become alarmed over the years, and start trying to change the rules to get me (or my guns) outed.

To be honest, if there is nothing specifically in the originating documents, I think you may be stressing out a little bit too much over it -  I know I did.  I've been teaching gun classes out of the house for almost 1 1/2 years now.

In Shelley v. Kraemer, SCOTUS held that the courts could not enforce racial covenents on real estate. THe cse arose out of a prohibition on renting to blacks. The court basically said that "Private parties may voluntarily abide by the terms of a restrictive covenant but may not seek judicial enforcement of such a covenant because enforcement by the courts would constitute state action. Since such state action would necessarily be discriminatory, the enforcement of a racially-based restrictive covenant in a state court would violate the Equal Protection Clause of the Fourteenth Amendment."

After Heller and McDonald, it would seem restrictive covenents on firearms could reasonably be assumed to fall under the same type of ruling. Any lawyers out there care to comment?

http://en.wikipedia.org/wiki/Shelley_v._Kraemer

Gun owners are not a protected class though, just like one can put up a no firearms sign on a private business - so could you do in a private condominium.  I can't put up a no blacks or asians sign, but I could put up a no obama lovers sign.

Gun owners are not a protected class though, just like one can put up a no firearms sign on a private business - so could you do in a private condominium.  I can't put up a no blacks or asians sign, but I could put up a no obama lovers sign.

But isn't "protected class" a concept under Title 7, and not directly related to the 14th Amendment? Furthermore, the concept of "protected class" arose out of the 1964 Civil Rights Act, the Shelley v. Kraemer case was heard in 1948, long before the civil rights acts. Therefore, it seems the basis for the decision, as stated by SCOTUS, was violation of the Equal Protection clause and should be applicable to any enumerated right.

In Shelley v. Kraemer, SCOTUS held that the courts could not enforce racial covenents on real estate. THe cse arose out of a prohibition on renting to blacks. The court basically said that "Private parties may voluntarily abide by the terms of a restrictive covenant but may not seek judicial enforcement of such a covenant because enforcement by the courts would constitute state action. Since such state action would necessarily be discriminatory, the enforcement of a racially-based restrictive covenant in a state court would violate the Equal Protection Clause of the Fourteenth Amendment."

After Heller and McDonald, it would seem restrictive covenents on firearms could reasonably be assumed to fall under the same type of ruling. Any lawyers out there care to comment?

http://en.wikipedia.org/wiki/Shelley_v._Kraemer

No, there is a distinction.

First, I wouldn't refer to Heller, as the scope in Heller is limited to federal enclaves (District of Columbia).  If you are going to discuss whether the right of an individual to "keep and bear arms," protected by the Second Amendment, is incorporated by the Due Process Clause of the Fourteenth Amendment as it applies to the states, then it might be more appropriate to refer to McDonald.

Second, the majority opinion in McDonald held that the Second Amendment is incorporated under the Fourteenth Amendment, thus protecting those rights from infringement by local governments.

Third, a Condo Rule or Homeowners' Association Rule prohibiting firearms on the property is not an infringement of an individual's Second Amendment right by a government (federal, state, municipal, or otherwise).  Condo Rules or Homeowners' Association Rules are a set of rules established by a non-governmental, private entity.  I am willing to bet that, before taking possession of the unit or house, the tenant/owner entered into a contract (lease or purchase agreement).  I am also willing to bet that the lease or purchase agreement obligated the tenant/owner to agree to abide by the existing Condo Rules / Homeowners' Association Rules.  This is a contractual relationship entered into by two private parties.

TL;DR:  Gun owners are not a "protected class."  There is no governmental action involved in a Condo Rule or Homeowners' Association Rule that prohibits firearms.  If there is a Condo Rule or Homeowners' Association Rule that prohibits firearms on the property, a gun owner's "freedom to contract" permits the gun owner to choose to agree to the prohibition, or find another place that permits firearms on the property.

Never sign something you don't completely read.

Red-lne or cross out terms you don't agree with.

dubya: Are you an attorney?

I understand that gun owners are not a protected class. But you didn't answer my question: How can the concept of a "protected class" be the basis for a decision when that concept did not yet exist?

My question stemmed from the use of the equal protection clause of the 14th Amendment, which applies to all rights incorporated under that amendment. After McDonald, the Second Amendment is now incorporated and should be afforded the same protections as other core, fundamental rights that have been incorporated.

Furthermore, the decision in Shelley was "...that racially-based restrictive covenants are, on their face, invalid under the Fourteenth Amendment. Private parties may voluntarily abide by the terms of a restrictive covenant but may not seek judicial enforcement of such a covenant because enforcement by the courts would constitute state action. Since such state action would necessarily be discriminatory, the enforcement of a racially-based restrictive covenant in a state court would violate the Equal Protection Clause of the Fourteenth Amendment.
The court rejected an argument that since state courts would enforce a restrictive covenant against white persons, judicial enforcement of restrictive covenants would not be a violation of the Equal Protection Clause. The court noted that the Fourteenth Amendment guaranteed individual rights, and equal protection of the law is not achieved with the imposition of inequalities."

dubya: Are you an attorney?

I understand that gun owners are not a protected class. But you didn't answer my question: How can the concept of a "protected class" be the basis for a decision when that concept did not yet exist?

My question stemmed from the use of the equal protection clause of the 14th Amendment, which applies to all rights incorporated under that amendment. After McDonald, the Second Amendment is now incorporated and should be afforded the same protections as other core, fundamental rights that have been incorporated.

In response to your first question:  Yes, but please don't hold that against me.

In response to your second question:  If you are referring to Chief Justice Vinson's opinion in Shelley v. Kraemer (334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 1948 U.S.), you have to remember that never once did Chief Justice Vinson employ the use of the term, "protected class."  Please also remember that although many people sometimes refer to the Civil Rights Act of 1964 as, "The Civil Rights Act," preceding the Civil Rights Act of 1964 were the Civil Rights Act of 1866, the Civil Rights Act of 1871, the Civil Rights Act of 1875, the Civil Rights Act of 1957, and the Civil Rights Act of 1960.  Additionally, following the the Civil Rights Act of 1964 were the Civil Rights Act of 1968 and the Civil Rights Act of 1991.  The term "protected class" is a more modern-day term that came into being as a result of acts, statutes, case law, etc., and at the present time, the term, "protected class," commonly refers to certain groups that are, by law, protected from discrimination.

In C.J. Vinson's opinion in Shelley v. Kraemer, remember that C.J. Vinson finds nothing violative of any rights guaranteed to the petitioners by the Fourteenth Amendment with regard to the restrictive terms of the agreements, in and of themselves.  In fact, C.J. Vinson states:

Since the decision of this Court in the Civil Rights Cases, 109 U.S. 3 (1883), the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.

We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated.

Instead, the key element to focus on is the judicial enforcement by state courts of the restrictive terms of the agreements:

Against this background of judicial construction, extending over a period of some three-quarters of a century, we are called upon to consider whether enforcement  by state courts of the restrictive agreements in these cases may be deemed to be the acts of those States; and, if so, whether that action has denied these petitioners the equal protection of the laws which the Amendment was intended to insure.

In his opinion, C.J. Vinson makes it a point to reiterate that judicial enforcement by state courts constitutes state action:

That the action of state courts and judicial officers in their official capacities is to be regarded as action of  the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court.

The Court found that:

These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell.

As such, the Court held:

We hold that in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws and that, therefore, the action of the state courts cannot stand.

Furthermore, the decision in Shelley was "...that racially-based restrictive covenants are, on their face, invalid under the Fourteenth Amendment. Private parties may voluntarily abide by the terms of a restrictive covenant but may not seek judicial enforcement of such a covenant because enforcement by the courts would constitute state action. Since such state action would necessarily be discriminatory, the enforcement of a racially-based restrictive covenant in a state court would violate the Equal Protection Clause of the Fourteenth Amendment.
The court rejected an argument that since state courts would enforce a restrictive covenant against white persons, judicial enforcement of restrictive covenants would not be a violation of the Equal Protection Clause. The court noted that the Fourteenth Amendment guaranteed individual rights, and equal protection of the law is not achieved with the imposition of inequalities."

Is your understanding of C.J. Vinson's opinion in Shelley v. Kraemer based upon Wikipedia?  If so, your understanding may, unfortunately, be incomplete.

Many of us take for granted the fact that discrimination in the sale, rental, and financing of dwellings based upon race, color, religion, sex, national origin, disability, or familial status is prohibited.

This has not always been the case, and this was certainly not the case when C.J. Vinson wrote the opinion in Shelley v. Kraemer.

It was Title VIII (Fair Housing Act) of the Civil Rights Act of 1968 that prohibited discrimination in the sale, rental and financing of dwellings based on race, color, religion, sex or national origin.  Title VIII was amended in 1988 to add disability and familial status (pregnant women and/or the presence of children under the age of eighteen).

I call your attention, again, to the portion of C.J. Vinson's opinion in which he writes:

We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment.

Had Title VIII been in effect in 1945, the lower courts would have had to strike the restrictive covenant down as being, on its face, violative of the plaintiff's rights.

Such was not the case, and the issue fell back onto 1) whether there was state action; and 2) if there was state action, whether that state action violated the plaintiffs' rights.

The key to understanding this issue (and, to an extent, the HPD Facebook issue) is whether or not there is state action.

Many of the responses to the HPD Facebook issue read along the lines of, "This is a frivolous case! I can damn well delete posts on MY personal Facebook page, if I so desire."

This is true... you, as a private individual, can delete posts on your private Facebook page.

However, if there is state action involved, then the proverbial stakes are raised, because state action directly implicates a potential for the infringement of an individual's fundamental rights.

Hope this answers your questions, but let me know if I can (try to) answer any other questions you might have.
dubya

*** Caveat:  This post is not intended to serve as, nor should be construed as, legal advice. ***

Dubya, just random whiel we were here...    What do you think of the landlord tenant codes and how rules must promote safety etc.?

Seems like just the legal gray area someone would want to me lol.

Dubya, just random whiel we were here...    What do you think of the landlord tenant codes and how rules must promote safety etc.?

Seems like just the legal gray area someone would want to me lol.

I agree that this issue falls into that grey area of the law that presently lacks a definitive legal rendering.

I think compelling arguments could be made for either sides of this issue.

*** Caveat:  This post is not intended to serve as, nor should be construed as, legal advice. ***

Dubya:  I am neither a lawyer nor a particularly smart man, but I'm fascinated by this discussion.  I've read through your posts as carefully as possible, and it seems that the layman's version of Shelley, the contract was between private parties, and so there was no government involvement.  However, if the government were to get involved, it would have violated the rights of the tenants, so that was no bueno.  Wouldn't an HOA agreement banning guns be sort of the same thing?  You're free to abide by the if you want, but the .gov cannot enforce the contract, right?  It seems like enforcement would require the .gov to come in and violate your Constitutional right to keep a firearm in your home, in the same way that government enforcement of the Shelley contract would require the government to discriminate.

dubya: Thanks for the explanation. I admittedly have not read up on the subject as well as I could have so your information is most helpful. I only had a chance to skim through it, but will reread it a little later...but my initial reaction is the same as Cougar.....

Dubya:  I am neither a lawyer nor a particularly smart man, but I'm fascinated by this discussion.  I've read through your posts as carefully as possible, and it seems that the layman's version of Shelley, the contract was between private parties, and so there was no government involvement.  However, if the government were to get involved, it would have violated the rights of the tenants, so that was no bueno.

Good on you, Cougar.

At the risk of oversimplifying Shelley v. Kraemer:

1.  There was a contract between two private parties for the purchase of property.  The property was subject to a district-wide racially-restrictive covenant.

2.  There was no governmental involvement in the contract for the purchase of the property, nor was there governmental involvement in the district-wide restrictive covenant.

3.  In 1945, this type of racially-restrictive covenant was not prohibited.

4.  Because, up until this point, there was no governmental involvement ("state action"), the Equal Protection Clause of the Fourteenth Amendment was not implicated.

5.  HOWEVER, when the Supreme Court of Missouri's reversed the lower court ruling (and granted the Respondent's request for relief), it was deemed that the Supreme Court of Missouri's actions constituted "state action," and thus invoked the Equal Protection Clause of the Fourteenth Amendment.

Wouldn't an HOA agreement banning guns be sort of the same thing?  You're free to abide by the if you want, but the .gov cannot enforce the contract, right?  It seems like enforcement would require the .gov to come in and violate your Constitutional right to keep a firearm in your home, in the same way that government enforcement of the Shelley contract would require the government to discriminate.

You raise an interesting point.

I think it is entirely conceivable that a situation, such as the one that you (and Funtimes, in a previous post) describe, could arise.

*** Caveat:  This post is not intended to serve as, nor should be construed as, legal advice. ***