Can They Really Take My Guns?

Can my Homeowners Association really take my guns away even if it’s without any mention on my lease or CC&Rs? Yes, they can and do. Across the country HOA boards have denied homeowners their Second Amendment right to bear arms many times. As I keep saying, HOAs are not subject to the U.S. Constitution so they can ban just about anything they want.

In a recent case in Texas a homeowner was hit with fines and threats of foreclosure because he ran a website where he sold guns. Mind you, not a single gun ever came through this property because the homeowner never received any shipments. 100% of his guns changed hands on the Internet.

There was a kerfuffle last week in Colorado, when Ross Management, a company that manages a number of neighborhoods suddenly passed an anti-gun ban on all its properties. (Trayvon Martin effect?) Many retired military live in Ross developments and they hit the ceiling. There was negative news coverage across the nation and Ross has kind of, sort of backed away from the gun ban. For now.

It’s not the first outrage by this property management group, either. Among the rules residents have to sign is that they are forbidden from ever speaking ill of Ross Management. So, the next step may be evicting those homeowners who dared to speak to the news media about the ban on guns.

We’ll see.

http://tinyurl.com/n8xddgv

rto August 14, 2013 at 8:16 am

Ward,

According to 9 News, “the Douglas County Housing partnership owns Oakwood Apartments in Castle Rock” (see second link below). This fact was not presented in the initial stories, leading to a lot of confusion on various internet forums.

Unlike private corporations, governments actors are ( in theory ) restricted by the Constiution. And the Douglas County Housing Partnership is a government agency. The private contractor, Ross Management, acted without authority. I don’t know what their motive is, if it has been revealed, or if they’re doing this at other properties they manage.

It’s interesting to note what would have happened if the apartment owner had been a private party, instead of a government actor. Private parties are not required to respect the Constiutional rights of other persons. And I’m not familiar with Colorado law, but many states have specific legislation and regulations to protect the rights of tenants. In many ways, renters have more protections of their rights than home owners governed by H.O.A. corporations do.

In the situations where H.O.A. corporations restrict the Second Amendment rights of their subjects, they often reverse the policy due to bad publicity. As far as I know, the ability of an H.O.A. corporation to ban guns has not been tested in any court. Some observers have predicted an increase in violence against H.O.A. board members in the future (e.g., Gary Solomon), so dont be surprised if the industry “encourages” H.O.A. corporations to adopt anti-gun policies in the coming years.

As you know, I was working on an article on this subject earlier this year, but got distracted when Bloomberg’s Blue Meanies infested the Colorado legislature, and I had to redirect my efforts at protecting my civil rights. Now that I’m wrapping up some other projects, maybe I’ll get back to that…

Private corporations resricting both First and Second Amendment rights is nothing new. Evan McKenzie described this as

“repressive libertarianism,” where certain people who call themselves libertarians invariably side with property owners who want to limit other people’s liberties through the use of contract law. Property rights (usually held by somebody with a whole lot of economic clout) trump every other liberty. The libertarian defense of HOAs is the perfect example. The developer writes covenants and leaves. Everybody who lives there has to obey them forever, even if they lose due process of law and expressive liberties.

As private corporations take over more functions of government, this position could lead to gradual elimination of constitutional liberties.

Ten years ago, some home owners in Texas were prohibited from critizing KB Homes:

Which would you rather have: The American dream of owning a home, or Your right to free speech?

KB Home, one of the largest homebuilders in the nation and in Texas, offers you the choice. They don’t exactly put it that way. If they did they might not be a $5 billion Fortune 500 company selling 25,000 homes a year.

No, they present the choice quietly, nestled deep inside a couple dozen pages of deed restrictions. It falls between the paragraph saying you have to honor utility easements and the paragraph forbidding “outdoor clothes lines and drying racks visible to adjacent properties.” The paragraph in question is lengthy, and deserves to be quoted at length.

“No sign of any kind or character, including (a) any signs in the nature of a `protest’ or complaint against Declarant (KB Home) or any homebuilder, (b) or that describe, malign or refer to the reputation, character or building practices of Declarant or any homebuilder, or (c) discourage or otherwise impact or attempt to impact anyone’s decision to acquire a lot or residence in the Subdivision shall be displayed to the public view.”

So you can’t promote a mayoral candidate or welcome home a son or daughter from a tour of duty in Iraq. An exception is made for a single “for sale” or rent sign as long as it is “professionally fabricated” and not larger than 5 square feet.

KB Home,

“any home builder or their agents shall have the right, without notice, to remove any sign, billboard or other advertising structure that does not comply with the above, and in so doing shall not be subject to any liability for trespass or any other liability in connection with such removal.”

A violation can result in a fine of $100 a day.

“The non-payment of such fine can result in a lien against said Lot, which lien may be foreclosed on … by the Declarant or any Owner in the Subdivision.”

If you’re one of the many who don’t want signs in your neighbors’ yards anyway, consider the next sentence.

“Moreover, no Owner may use any public medium such as the `internet’ or any broadcast or print medium or advertising to similarly malign or disparage the building quality or practices of any homebuilder, it being acknowledged by all Owners that any complaints or actions against a homebuilder or Declarant are to be resolved in a private manner and any action that creates controversy or publicity for the Subdivision or the quality of construction of any homes within the Subdivision will diminish the quality and value of the Subdivision.”

So it’s not just those unsightly lawn signs. You may not give a television interview, write a letter to the editor, post a message on a Web site or go on a radio talk show to discuss any problems you may have had with a homebuilder.

And you may not use any of those media to discuss the practices of any homebuilder. A spokeswoman at KB’s Los Angeles headquarters said Friday afternoon such language has become something of an “industry standard.”

I’ll investigate that further next week, and I’ll examine the state of the law on such free-speech restrictions. Alice Oliver-Parrott, former chief justice of the 1st Court of Appeals here, now represents homeowners in controversies with builders. She says the notion that the restriction is an industry standard suggests the industry should examine its product.

“You can complain about your car or your washing machine,” she said.

But the KB spokeswoman stressed that the provision is not to protect KB Home from bad publicity. It’s to protect neighbors from damaged property values. And she says it is the homeowners’ associations, not KB Home, that enforce the restrictions. Feel better?

And they’re not the only home builder / H.O.A. corporatioin do have done something like this.

The Onion once warned us that the future was a choice between public government tyranny and private corporate tyranny. One of the things I’ve always hated about the partisan A.C.L.U. is that they rarely, if ever, see threats-to-liberty from the Left. Conversely, conservatives, libertarians, Republicans, Ayn Randians, T.E.A. Partiers, etc. (is there a single label for that group?) need to open their eyes and realize that not all threats to liberty come from the government, and that private corporations are not merely benevolent engines of innovation and job creation (who only behave badly because of government interference).

references:

http://www.9news.com/rss/story.aspx?storyid=348974
Castle Rock Apartment Tenants Told They Must Get Rid Of Their Guns
9 News. 5:22 PM, August 07, 2013

http://www.9news.com/news/story.aspx?storyid=349123
Castle Rock Apartment’s Controversial Policy Banning Firearms Is Thrown Out
9 News. 11:12 PM, August 07, 2013

onthecommons.net/2013/04/06/on-the-commons-with-dr-gary-solomon.aspx
On the Commons with Dr. Gary Solomon
April 06, 2013.

neighborsatwar.com/2013/06/solving-hoa-problems-with-a-gun/
Solving HOA Problems With A Gun!
Ward Lucas. June 08, 2013.

privatopia.blogspot.com/2008/08/gun-rights-vs-freedom-how-take-your.html
Gun Rights vs. Freedom?: How “Take Your Guns To Work” Laws Violate Property Rights – Reason Magazine
Evan McKenzie. August 25, 2008

thehoaprimer.org/shutup.htm
“Buy A House And Shut Up!”
Rick Casey. The Houston Chronicle. December 13 (?), 2003.

http://www.theonion.com/articles/the-future-will-be-a-totalitarian-government-dysto,11540/
The Future Will Be A Totalitarian Government Dystopia vs The Future Will Be A Privatized Corporate Dystopia
The Onion. May 17, 2000.

PS – Since there is no “preview” function for comments, I hope the nested block quotes work correctly. If not, please feel free to fix the formatting. Or just contact me via e-mail and I’ll fix it.

Reply ↓

2 thoughts on “Can They Really Take My Guns?”

rto August 14, 2013 at 8:16 am

Ward,

According to 9 News, “the Douglas County Housing partnership owns Oakwood Apartments in Castle Rock” (see second link below). This fact was not presented in the initial stories, leading to a lot of confusion on various internet forums.

Unlike private corporations, governments actors are ( in theory ) restricted by the Constiution. And the Douglas County Housing Partnership is a government agency. The private contractor, Ross Management, acted without authority. I don’t know what their motive is, if it has been revealed, or if they’re doing this at other properties they manage.

It’s interesting to note what would have happened if the apartment owner had been a private party, instead of a government actor. Private parties are not required to respect the Constiutional rights of other persons. And I’m not familiar with Colorado law, but many states have specific legislation and regulations to protect the rights of tenants. In many ways, renters have more protections of their rights than home owners governed by H.O.A. corporations do.

In the situations where H.O.A. corporations restrict the Second Amendment rights of their subjects, they often reverse the policy due to bad publicity. As far as I know, the ability of an H.O.A. corporation to ban guns has not been tested in any court. Some observers have predicted an increase in violence against H.O.A. board members in the future (e.g., Gary Solomon), so dont be surprised if the industry “encourages” H.O.A. corporations to adopt anti-gun policies in the coming years.

As you know, I was working on an article on this subject earlier this year, but got distracted when Bloomberg’s Blue Meanies infested the Colorado legislature, and I had to redirect my efforts at protecting my civil rights. Now that I’m wrapping up some other projects, maybe I’ll get back to that…

Private corporations resricting both First and Second Amendment rights is nothing new. Evan McKenzie described this as

“repressive libertarianism,” where certain people who call themselves libertarians invariably side with property owners who want to limit other people’s liberties through the use of contract law. Property rights (usually held by somebody with a whole lot of economic clout) trump every other liberty. The libertarian defense of HOAs is the perfect example. The developer writes covenants and leaves. Everybody who lives there has to obey them forever, even if they lose due process of law and expressive liberties.

As private corporations take over more functions of government, this position could lead to gradual elimination of constitutional liberties.

Ten years ago, some home owners in Texas were prohibited from critizing KB Homes:

Which would you rather have: The American dream of owning a home, or Your right to free speech?

KB Home, one of the largest homebuilders in the nation and in Texas, offers you the choice. They don’t exactly put it that way. If they did they might not be a $5 billion Fortune 500 company selling 25,000 homes a year.

No, they present the choice quietly, nestled deep inside a couple dozen pages of deed restrictions. It falls between the paragraph saying you have to honor utility easements and the paragraph forbidding “outdoor clothes lines and drying racks visible to adjacent properties.” The paragraph in question is lengthy, and deserves to be quoted at length.

“No sign of any kind or character, including (a) any signs in the nature of a `protest’ or complaint against Declarant (KB Home) or any homebuilder, (b) or that describe, malign or refer to the reputation, character or building practices of Declarant or any homebuilder, or (c) discourage or otherwise impact or attempt to impact anyone’s decision to acquire a lot or residence in the Subdivision shall be displayed to the public view.”

So you can’t promote a mayoral candidate or welcome home a son or daughter from a tour of duty in Iraq. An exception is made for a single “for sale” or rent sign as long as it is “professionally fabricated” and not larger than 5 square feet.

KB Home,

“any home builder or their agents shall have the right, without notice, to remove any sign, billboard or other advertising structure that does not comply with the above, and in so doing shall not be subject to any liability for trespass or any other liability in connection with such removal.”

A violation can result in a fine of $100 a day.

“The non-payment of such fine can result in a lien against said Lot, which lien may be foreclosed on … by the Declarant or any Owner in the Subdivision.”

If you’re one of the many who don’t want signs in your neighbors’ yards anyway, consider the next sentence.

“Moreover, no Owner may use any public medium such as the `internet’ or any broadcast or print medium or advertising to similarly malign or disparage the building quality or practices of any homebuilder, it being acknowledged by all Owners that any complaints or actions against a homebuilder or Declarant are to be resolved in a private manner and any action that creates controversy or publicity for the Subdivision or the quality of construction of any homes within the Subdivision will diminish the quality and value of the Subdivision.”

So it’s not just those unsightly lawn signs. You may not give a television interview, write a letter to the editor, post a message on a Web site or go on a radio talk show to discuss any problems you may have had with a homebuilder.

And you may not use any of those media to discuss the practices of any homebuilder. A spokeswoman at KB’s Los Angeles headquarters said Friday afternoon such language has become something of an “industry standard.”

I’ll investigate that further next week, and I’ll examine the state of the law on such free-speech restrictions. Alice Oliver-Parrott, former chief justice of the 1st Court of Appeals here, now represents homeowners in controversies with builders. She says the notion that the restriction is an industry standard suggests the industry should examine its product.

“You can complain about your car or your washing machine,” she said.

But the KB spokeswoman stressed that the provision is not to protect KB Home from bad publicity. It’s to protect neighbors from damaged property values. And she says it is the homeowners’ associations, not KB Home, that enforce the restrictions. Feel better?

And they’re not the only home builder / H.O.A. corporatioin do have done something like this.

The Onion once warned us that the future was a choice between public government tyranny and private corporate tyranny. One of the things I’ve always hated about the partisan A.C.L.U. is that they rarely, if ever, see threats-to-liberty from the Left. Conversely, conservatives, libertarians, Republicans, Ayn Randians, T.E.A. Partiers, etc. (is there a single label for that group?) need to open their eyes and realize that not all threats to liberty come from the government, and that private corporations are not merely benevolent engines of innovation and job creation (who only behave badly because of government interference).

references:

http://www.9news.com/rss/story.aspx?storyid=348974
Castle Rock Apartment Tenants Told They Must Get Rid Of Their Guns
9 News. 5:22 PM, August 07, 2013

http://www.9news.com/news/story.aspx?storyid=349123
Castle Rock Apartment’s Controversial Policy Banning Firearms Is Thrown Out
9 News. 11:12 PM, August 07, 2013

onthecommons.net/2013/04/06/on-the-commons-with-dr-gary-solomon.aspx
On the Commons with Dr. Gary Solomon
April 06, 2013.

neighborsatwar.com/2013/06/solving-hoa-problems-with-a-gun/
Solving HOA Problems With A Gun!
Ward Lucas. June 08, 2013.

privatopia.blogspot.com/2008/08/gun-rights-vs-freedom-how-take-your.html
Gun Rights vs. Freedom?: How “Take Your Guns To Work” Laws Violate Property Rights – Reason Magazine
Evan McKenzie. August 25, 2008

thehoaprimer.org/shutup.htm
“Buy A House And Shut Up!”
Rick Casey. The Houston Chronicle. December 13 (?), 2003.

http://www.theonion.com/articles/the-future-will-be-a-totalitarian-government-dysto,11540/
The Future Will Be A Totalitarian Government Dystopia vs The Future Will Be A Privatized Corporate Dystopia
The Onion. May 17, 2000.

PS – Since there is no “preview” function for comments, I hope the nested block quotes work correctly. If not, please feel free to fix the formatting. Or just contact me via e-mail and I’ll fix it.

Reply ↓
1. Ward Lucas Post authorAugust 14, 2013 at 4:53 pm
  
  Thank you for the resources. Every single one you mentioned is Sterling Silver. And I did write extensively about the scandalous verbiage in the KB Homes contract in my book, Neighbors At War! When they were caught, KB Home vowed to change that verbiage in all future contracts. I would be dumbfounded if they actually did.
  
  Reply ↓

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