Robert Dowlut, General Counsel to the National Rifle Association, sent demand letters to all four Delaware housing authorities that ban their residents from owning firearms for self-defense.
The text of Dowlut’s letters follows:
1 February 2010
Wilmington Housing Authority
Frederick S. Purnell, Sr., Executive Director
400 N. Walnut Street
Wilmington, Delaware 19801
Dear Mr. Purnell:
It has been brought to our attention by members of the National Rifle Association and by the Caesar Rodney Institute that the Wilmington Housing Authority imposes a lease provisions that prohibits a resident from possessing a firearm. Such a restriction is unconstitutional.
Article I, § 20 of the Delaware Constitution guarantees that “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” Furthermore, the United States Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008), held that the right to keep an operable firearm in the home for self-defense is a core right guaranteed by the Second Amendment. Consequently, the court struck down a ban on the possession of handguns and a ban on the possession of operable firearms in the home.
The Housing Authority of Portland, Oregon, proposed like regulations. The Attorney General of Oregon on September 12, 1988, in Opinion No. 8196, held that a lease provision proposed by the Housing Authority of Portland, which would prohibit any resident to possess any firearm within his apartment, would violate the state constitutional guarantee to bear arms. Cf. Doe v. Portland Housing Authority, 656 A.2d 1200 (Maine 1995), cert. denied 133 L.Ed.2d 112 (1995). Maine’s preemption statute voided public housing gun ban. Delaware has enacted a preemption statute that bars a municipal government from, among other things, banning the possession of firearms. 22 Del. Code § 111. See also Robert Dowlut, Bearing Arms in State Bills of Rights, Judicial Interpretation, and Public Housing, 5 St. Thomas L. Rev. 203, 212 (1992).
It is well-settled law that the government may not condition entitlement to a public benefit, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action. Lefkowitz v. Turley, 414 U.S. 70 (1973); Keyishian v. Board of Regents, 385 U.S. 589, 606 (1967); Sherbert v. Verner, 374 U.S. 398 (1963). The government is not free to place unconstitutional prerequisites upon the securing of public housing. Eligibility for low income housing provided by a housing authority plainly is a public benefit or privilege. While the housing authority may lawfully condition eligibility on satisfaction of income criteria and other factors designed to ensure that only eligible tenants reside in that housing, the housing authority may not require an otherwise eligible individual to surrender his rights in order to obtain low income housing.
Labeling housing as a right or a privilege is of no moment. Morrisey v. Brewer, 408 U.S. 471, 481 (1972), teaches that “this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege’.”
In summation, the ban on firearm possession adopted by the housing authority of Dover, Newark, and Wilmington is unconstitutional and should be promptly rescinded to avoid litigation.
Sincerely,
Robert Dowlut
General Counsel
cc: Mayor James M. Baker
[…] with a lawsuit if they don’t relent on the “no guns” policy. You can see the demand letter written by Robert Dowlut, NRA General Counsel here. Note the following: Article I, § 20 of the Delaware Constitution guarantees that “A person has […]