Adams Stirling PLC


QUESTION: Does the board have the right to ask residents to declare if they own a gun and what kind?

ANSWER: The Second Amendment to the U.S. Constitution guarantees the right of citizens to possess firearms. However, the right is subject to reasonable regulation. (Dist. of Columbia v. Heller (2008) 554 U.S. 570, 626-27; governments can impose narrowly prescribed and reasonable restrictions on guns.) For example, you cannot carry a firearm onto a commercial airliner. If airport screeners find one, you won't be boarding the plane. By extension, reasonable regulation of firearms also applies to community associations.

Common Areas. In Nahrstedt v. Lakeside Village, the California Supreme Court stated that “use restrictions are an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangement." And, associations "may limit activities conducted in the common areas.” Accordingly, associations can restrict residents from openly carrying firearms in the common areas.

Gun Ban. Although HOAs can regulate handguns in the common areas, any attempt by a board to ban gun ownership would be struck down. In Heller, the court ruled that a person has a right to defend himself with a firearm in his home. The U.S. Supreme Court  also overturned a Chicago ban on handguns. (McDonald v. City of Chicago (2010) 130 S.Ct. 3020.)

Registration. Can a board require residents to register their guns with the association? Probably not. There is no safety or security benefit to registration since HOAs cannot license or ban gun ownership. Moreover, Penal Code, §25605(b) provides that no permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years. While this statute applies only to government registration of firearms, it shows a public policy against registration. In Nahrstedt, the Supreme Court used public policy as one of the criteria for judging the reasonableness of a restriction.

Conclusion: A court would likely deem an association's registration of firearms to be inconsistent with public policy and invalidate the requirement. (See "Self-Defense in the Common Areas.")

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC