Posted on 10/26/2009 12:01:58 PM PDT by Still Thinking
Based on legislation and case law, the U.S. government's attitude toward increased rights for gun owners has been more favorable in recent years than ever before.
In the 2008 case District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment to the Constitution protects an individual's right to possess a firearm for private use. It was the first Supreme Court case in U.S. history to directly address whether the right to keep and bear arms is a right of individuals in addition to a collective right that applies to state-regulated militias.
As a result, additional pleas to increase rights for gun owners are popping up around the country, including in Nassau County.
The National Rifle Association notched a victory in the January settlement of a lawsuit against a San Francisco Housing Authority, under which the agency will no longer enforce a 2005 rule that prohibited the otherwise legal possession of guns and ammunition in public housing units.
In July, the House Financial Services Committee adopted an amendment to allow guns in public housing projects as part of a markup of a housing bill (HR 3045), which has yet to be passed through Congress.
But despite the seemingly national groundswell in favor of gun ownership, Johnie E. Lewis, a 73-year-old man living in public housing in Fernandina Beach, could face eviction for his desire to bear arms. Under a Housing Authority of Fernandina Beach lease agreement that tenants must sign, they agree not to display, use or possess any firearms under penalty of eviction - for now, anyway.
Lewis, along with his attorney Steven M. Fahlgren, filed suit in September for declaratory and injunctive relief against Patricia Woody in her official capacity as executive director of the Housing Authority of Fernandina Beach concerning his right to keep a gun in his home for lawful purposes.
"Mr. Lewis is old and doesn't have the wherewithal to defend himself," Fahlgren said. "This is the most important thing in his life right now based on what he's communicated to me."
As part of the lawsuit, Fahlgren submitted copies of two documents, provided to tenants from Woody in April, that he feels are contradictory. One memo urges tenants to contact the police if anyone is trespassing on the property and states, "The housing property is open and we cannot monitor everyone that walks through the property."
The other memo is a notification to all housing authority residents alerting them of inspections of approximately 10 units chosen at random, which states: "Firearms or other offensive weapons are prohibited on housing authority property and a lease violation and tenants will be subject to eviction. If you are in possession of a firearm or other offensive weapon, please remove this from your household immediately."
Although Fahlgren said he didn't know if Lewis felt threatened by any specific incidents on the property, he was greatly concerned about the inspections themselves and the implications they would have.
"Florida law says that essentially, a man's home is his castle," Fahlgren said. "He has the right to use deadly force in his home when attacked."
When asked whether the lease agreement preventing the lawful possession of guns is binding, Fahlgren said it can't supercede constitutional law.
"The courts have said you can't condition the granting of federal aid based on someone waiving their constitutional rights," he said.
Senior Vice President of the Jacksonville Housing Authority Fred McKinnies said law-abiding residents in public housing through his agency - for better or worse - are legally permitted to possess firearms by constitutional law.
Attorney Paige Poechmann, who represents Woody and the Housing Authority of Fernandina Beach, said a contractual issue is at stake, but wouldn't comment on the merits of the case or what they'll be pleading. Calls placed to Woody were not returned.
"My client and I feel strongly the law is on our side, but that's for the judge to decide," Poechmann said.
Poechmann has filed a motion to dismiss Woody as a defendant in the case, citing that the allegations challenge only the Housing Authority of Fernandina Beach's policies, not those of Woody.
According to Fahlgren, his client seeks only attorney's fees and an injunction to resolve the case promptly.
Fahlgren said he was also served with a motion for sanctions by Poechmann, which has yet to be filed with the court, for filing a frivolous case.
The motion cites an unpublished 2004 Michigan Court of Appeals case, Lincoln Park housing Commission v. Diane Andrew, in which the court upheld a provision in the lease prohibiting the possession of firearms.
But in a memorandum from Fahlgren in response to the motion, he refutes the idea that cases from other jurisdictions have any bearing on Florida law and cites the decision in the more recent Heller case.
On Oct. 7, an answer and affirmative defenses was submitted to the court on behalf of Woody and the Housing Authority of Fernandina Beach. The 59-page document contends, among other things, that Lewis signed the lease agreement - which included a prohibition of firearms - in 1999.
"The court should deny the relief requested by Plaintiff (Lewis) in that Plaintiff has delayed in asserting his rights for at least ten (10) years, such that Plaintiff's conduct shows his assent to the acts of Defendant complained of," the document states.
The document also cites that the housing authority is funded by the U.S. Department of Housing and Urban Develop-ment, and as such, was issued a "Public Housing Occupancy Guide-book" suggesting that public housing authorities include provisions in their lease relating to the use or possession of weapons.
"HUD has issued a notice to housing authorities which contains a lease that complies with the Housing Opportunity Extension Act, calling for the inclusion of the prohibition of firearms in tenant housing, thus prohibiting firearms in public housing," the document states.
Additionally, the document alleges that the possession of firearms can be lawfully limited under Florida Statute on government property, which it states Lewis' residence is.
The defendants are seeking an order denying the relief requested in the complaint, with prejudice, and are seeking attorney's fees.
But Fahlgren, himself a gun owner, predicted an agreement to the entry of an injunction would be reached before the end of the year.
"We have a conservative court and a conservative country - at least when it comes to guns," he said. "There is popular favor for gun rights, especially here where people are more self-reliant and favor a smaller government."
Just wait when they pass the “public option” health care. Guns are “unhealthy” so you they will be a no no if you want health care.
Term Limits Now!
We should be banning federal housing project and promoting gun ownership.
Sooner or later the radical left will overturn the 2nd amendment. Whether in an honest, straightforward manner or by means of underhanded, dishonest tactics so common to the left, our right to keep and bear arms will be rescinded. This will be the day upon which actual Americans will either stand up, arm themselves and reclaim their rights and their government, or permit the death of freedom and of the United States.
Hear, hear! to both.
I know what you mean. The Marxists seem to be getting bolder and bolder.
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