Open Carry at the Condo

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Unites States Constitution, Second Amendment. The Constitution is, of course, federal law, so one might think an outright prohibition against arms would be limited only to the federal government. But through the Fourteenth Amendment to the Constitution, it applies to state governments as well.

Further, the matter of bearing arms appears in the New Hampshire Constitution as well. “All persons have the right to keep and bear arms in defense of themselves, their families, their property, and the state.” Bill of Rights, Part 1 Article 2-a.

Regardless of where applied, it is important to note that from the plain language of the Unites States and New Hampshire Constitutions, neither the State nor the United States is barred from creating reasonable regulations. Thus, the question is whether any regulation is reasonable.

One of the fundamental liberties is the right to be free, but as Locke and Hobbes argued (I mentioned these philosophers as long ago as my very first column) the basis of living in a society is the unstated social compact or agreement that to live in a society, we agree to give up some individual liberties in exchange for protections granted to us by the government we select. How does this apply to condominium associations? Condominium associations regulate private property, not state or federal property. And the 2nd Amendment has routinely been applied by courts to governments, federal, state and local. In other words, the regulations for private property are left to the private owner. For instance, if you are a guest in someone's home, the Owner could welcome you and your firearm or ask you not to bring a gun to their home.

Condominium associations are, of course, not public governments. Rather, at best they are private governments. But just as someone who does not like gun laws in the United States can choose to move, so too can someone who does not like firearm regulations in condominium associations choose to sell their Unit and move to an association that more reflects their beliefs. For instance, not everyone who is over 55 chooses to live in an over-55 condominium association. Conversely, someone under the age of 55 can be banned from living in an over-55 condominium association despite the right to own property inherent in the Constitution.

There is, of course, a privacy right. (That's in both the federal and state Constitutions as well.) That's why a condominium association would not likely be able to ban firearms from being held in a Unit, but it can ban guns from the Common Area.

New Hampshire, of course, has an Open Carry law, meaning Owners are welcome to strap any type of legal firearm to their body and walk around with it. But a Board could ban open carry in the Common Area requiring the Owner to conceal the weapon. A fair provision would likely be that it could not be “concealed” under a tight t-shirt so it can clearly be determined as being a handgun, for instance, despite it being covered. “Concealed” does not equal “covered.”

Why can an Association ban guns on the Common Area despite an Open Carry law in New Hampshire? As noted long ago, by purchasing a condominium Unit an Owner agrees to the contract that is, primarily, the Declaration and Bylaws. In turn, Boards can make Rules. It could make a Rule that bans open carry of firearms from the Common Area. If an Owner doesn't like such a Rule the Owner can vote for new Board members who will create a different Rule that allows open carry at the condo association.

Simply put, the protections of the 2nd Amendment are not absolute. Guns have been banned from schools, hospitals and government buildings. So, as with nearly everything in condominium associations, it's a matter of balance, in this case weighing the rights of gun owners against the rights of non-gun owners from becoming concerned about someone openly carrying a gun at the pool.