Right to Keep and Bear Arms: Part III

How might the U.S. Supreme Court's decision in District of Columbia v. Heller (PDF, 172 pages) affect elderly persons resident in care institutions?

In this third part of a series on the "Right to Keep and Bear Arms", Joshua G. Price and I, together, speculate on the effects of that decision on the constitutional rights of patients in long-term care hospitals or facilities to keep firearms there.

For the previous parts, see "Right to Keep and Bear Arms: Part I" (06/27/08), and "Right to Keep and Bear Arms: Part II" (06/30/08).

D.C. v. Heller:
Effects on Seniors Resident in Facilities

by Neil E. Hendershot & Joshua G. Prince

As a matter of non-discrimination, the federal Second Amendment rights of elderly citizens to "keep and bear Arms" should parallel those of other citizens. But differences occur, in reality, when an elderly citizen becomes a resident in a long-term residential care facility.

During Neil Hendershot’s Elder Law class at Widener University School of Law over the past few years, the students were each asked to review an elder care institution and then provide oral and written presentations. One consistent prohibition that arose in these studies was that none of the facilities would allow the residents to possess firearms.

Private business institutions place many limitations on their guests or residents to further their business operations. Generally, however, state and federally-funded facilities may not limit rights arbitrarily that are conferred by a state constitution or by the United States Constitution, respectively.

The U.S. Supreme Court's decision in D.C. v. Heller raised many issues, but answered very few, other than the unconstitutionality of the law adopted by the District of Columbia that imposed virtually a complete ban on possession of handguns.

While the Majority Opinion of the Court noted, without further explanation, that the government may reasonably limit firearm possession in certain areas, such as schools and public places, it did not provide further guidance about such limitations.

If a federal government, like the District of Columbia, may not limit U.S. Constitutional rights in an outright ban of firearms by its residents, on what basis may a federally-funded, long-term residential care facility similarly totally and absolutely bar a resident's ability to possess a firearm? Facilities receiving federal Medicaid or Medicare funds may be compelled to consider that question.

Under the Heller decision, elderly citizens, like others, would retain their Second Amendment rights. When an individual enters senior housing or a long-term residential care facility that receives federal or state funding, under what circumstances can federal Second Amendment Constitutional rights, or similar constitutional rights, of that individual become limited?

State constitutional rights remain at issue because, under the concept of "New Federalism", a state may afford its citizens more rights than those afforded by the U.S. Constitution; and such rights are enforceable in state courts. See: Commonwealth v. Blood, 400 Mass. 61. Thus, these same questions may be asked under the constitutions of the various states, including Pennsylvania.

The Supreme Court in D.C. v. Heller acknowledged that Pennsylvania was one of the first states, in 1776, to declare that the Right to Bear Arms was an individual right; and that right remains enforceable. Presently, the Pennsylvania Constitution states that the Right to Bears Arms is an individual right: “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” Pa. Constitution, Article 1, § 21.

While the Heller decision has no impact on enforcement of the Commonwealth's Constitutional rights, the recent attention on the issue of gun possession has highlighted these provisions. So, after Heller, under the Commonwealth's Constitution, can a facility or hospital that receives state funding place a total and absolute ban upon a resident's ability to possess a firearm, as the District of Columbia sought to do under its statute, now declared unconstitutional?

Questions of this nature are raised in the initial lawsuits filed by the National Rifle Association immediately after the Heller decision, as reported in various articles:

• "Wilmette Suspends Local Handgun Ban: NRA Files Suits In Chicago, Three Suburbs Challenging Gun Bans" (06/27/08), posted by WMAQ-TV NBC5 (Chicago, IL)
• "NRA sues S.F. over guns in public housing" (06/28/08), by Bob Egelko & Cecilia M. Vega, posted by the San Francisco Chronicle
• "Block SF Public Housing Handgun Ban", (06/28/08), posted by KPIX-TV CBS5 (San Francisco, CA)
  

There can be limitations on one's exercise of constitutional rights. The Majority Court in Heller noted that felons and the mentally ill can be limited in exercise of their Constitutional rights.

The dissent by Justice Breyer (joined by Justices Stevens, Souter, & Ginsburg), asserted that appropriate and reasonable limitations were permissible: "[T]he protection the [Second] Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are — whether they do or do not include an independent interest in self-defense — the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms."

Justice Breyer contemplated the question of limitation on rights:

How is a court to determine whether a particular firearm regulation (here, the District’s restriction on handguns) is consistent with the Second Amendment? What kind of constitutional standard should the court use? How high a protective hurdle does the Amendment erect? The question matters. * * *

Existing limitations in federal regulations prohibit an individual who has been involuntarily committed to a mental institution or adjudicated as a mental defective from owning firearms. 27 C.F.R. 478.32. Those regulations were not addressed by Heller.

Thus, the mental capacity of an elderly gun owner likely would be a key factor in guidelines proposed to restrict rights of a resident to possess a firearm in an affected senior housing or a long-term residential care facility.

What level of competency could be justified in guidelines limiting a resident's right to possess a firearm? What other factors would justify such a policy? Who would make such determinations? What would be the procedures for appeal or enforcement?

Other factors in such guidelines may not derive specifically from an elder's abilities, but more from the congregate living arrangement, much like the low-income housing setting.

Look to judicial opinions in the renewed round of post-Heller litigation to develop, over time, legal tests for enforceable limitations or protections of Second Amendment rights, including those applicable to the residents of long-term care facilities.

Update: 07/08/08:

Attorney Constance L. Brigman noted this and related postings in her blog entry on July 2, 2008, captioned "The Right to Bear Arms".

For a VERY through discussion of gun ownership and the elderly, go to this amazing blog: http://paelderestatefiduciary.blogspot.com. You really cannot beat this lawyer’s research on gun ownership. If you are at all interested in the issue, you should cut and paste the link into your browser * * *.