The Second Amendment and Foster Parents

From a South Carolina Attorney General opinion issued last week:

Dear Representative Gilliam:
You seek our opinion “on a matter important to all South Carolinians, especially those among us who are serving as foster parents to the over 4,500 South Carolina youths in foster care.” Specifically, your letter states:

… [o]ur concerns and answers to our questions [require resolution] so that these dedicated volunteers retain their Second Amendment right to keep and bear arms—uninfringed—while they provide their generous and valuable help to children in need.

It is my understanding that caseworkers and other officials with the South Carolina Department of Social Services [SCDSS] are prohibiting foster parents from adopting a foster child so long as any firearms are present in their home.

Our research has not found any state code requiring a complete deaccession of household firearms by foster parents who are considering adoption of a foster child. [The opinion then cites SCDSS regulations and policies that require foster parents to generally keep firearms “stored in an inoperative condition in a locked area inaccessible to children.” -EV] …

[A] court could well conclude that the DSS regulations regarding the requirement of gun storage in foster homes violate the Second Amendment. We note that even before Bruen, in Heller, the Supreme Court struck down, “the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times.” In the words of the Heller Court,

[t]his [requirement] makes it impossible for citizens to use [firearms] … for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an element for self-defense …. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions …. The nonexistence of a self-defense exception is also suggested by the D.C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders….

We are unaware of any historical analogue whereby firearms may not be used for self-defense in the home of a foster parent and thereby must remain dismantled, such as the DSS regulation requires. In our view, a foster parent possesses the same constitutional right to self-protection as any other law-abiding citizen. Absent a court concluding that a foster parent poses a danger to others, (which, if so, would likely disqualify that person as a candidate to be a foster parent anyway), Rahimi is inapplicable. Moreover, history has not created a special exception in the case of foster parents, to our knowledge. As Heller makes clear, a requirement that a firearm must be stored and disabled is the equivalent of no-self-defense at all. This requirement is inconsistent with the Second Amendment.

We have located a federal court decision which supports our analysis[,] … Johnson v. Lyon (W.D. Mich. 2018). [It reasoned,]

Storing firearms in an inoperable condition makes them useless for the defense of hearth and home, which implicates the Second Amendment. The need for self-defense rarely comes with advance notice; it occurs spontaneously, often at times specifically chosen for the expected vulnerability of the intended victim.

For example, a foster parent cannot “use” a firearm while asleep. Thus, Rule 415 [the rule involved in Johnson] mandates that the gun be stored in a locked gun safe or trigger locked, and the ammunition must be stored in a separate locked location. If, during the night, the need arises for the foster parent to use the gun for self-defense, he or she must now retrieve the weapon from the gun safe, proceed to a “”separate locked location” to retrieve the ammunition, and load the gun. Only then would it be a functional firearm capable of defending hearth and home. Like the Heller ordinance, these significant constraints on self-defense within the home clearly implicate the Second Amendment; the Department’s argument to the contrary must fail….

The Department argues that Rule 415 fits within two of the presumptively lawful categories of government regulation [recognized in Heller]: (1) possession of firearms in a sensitive area, and (2) the “longstanding tradition of targeting select groups’ ability to access and use arms in the interests of public safety, including restrictions based on age.” … The Court does not find either argument persuasive.

First, The Department argues that foster homes are analogous to schools because “both have temporary control over others’ children.” Public areas fall within the “sensitive place” exception because they are important to the function of government or because the “possessing firearms in such places risks harm to great numbers of defenseless people ….

Foster homes are obviously not such a place. They are homes. And considering one’s home a “sensitive area” would eviscerate Heller’s clarification that “”the need for defense of self, family, and property is most acute” in the home….

Second, the Department asserts that, “caselaw allows a complete prohibition of firearms … from children.” … [But] Rule 415 directly burdens people outside of a vulnerable demographic to reach children, and it allegedly prevents them from using firearms in their homes. Such a restriction clearly falls within the Second Amendment’s protection….

The restraints placed upon the possession of a firearm by requiring that a foster parent household must dismantle that firearm and keep it stored would likely be deemed by a court to be an infringement upon the homeowner’s Second Amendment right to defend hearth and home. Such a requirement provides no self-defense at all….

My view: This is a special case of the “unconstitutional conditions” question, which asks whether the government may require people to agree not to exercise their constitutional rights—at least to some extent—while participating in a government-run program (here, a foster parenting program). Here’s my thinking on the question, from Implementing the Right to Keep and Bear Arms After Bruen (which touches on the foster parenting question at the end):

Bruen dealt with a law that restricted gun carrying nearly everywhere in the state of New York.  Because the law wasn’t limited to government property, the Court had no occasion to decide whether special rules should apply to such property, or to the government imposing rules on employees or contractors.

But the Court has long recognized that individual rights claims may play out differently when government property is involved (setting aside property traditionally open to the public, such as streets, sidewalks, and parks). That doctrine is especially well-developed for the freedom of speech, where there are special rules for nonpublic forum property, as well as for government employees, contractors, and public-school students. Likewise, Fourth Amendment law gives the government greater authority to search government employees’ offices and the property that K-12 students bring to school.

When the Court recognized a right to abortion, it similarly concluded that the right didn’t extend to government-owned hospitals or even hospitals built on land leased from the government. And when the Court recognized a Free Exercise Clause right to religious exemptions from generally applicable laws, it likewise treated government property differently: Just as the Free Speech Clause doesn’t protect a right to solicit a state fair, so the Free Exercise Clause did not protect a right to do so for religious purposes.

This might offer an alternative justification for some of the “sensitive places” restrictions on gun carrying mentioned in Bruen, since the most often discussed “sensitive places” tend to be government property, such as “legislative assemblies, polling places, … courthouses,” and “schools.” But the rationale would be less about the history and tradition of gun regulation and more about the broader history and tradition of recognizing the government’s right to exercise some (though not all) of the rights of ordinary property owners. And in at least some situations—for instance, when it comes to government employers’ restrictions on the conduct of their employees—the rationale may also stem from a judgment that the government may often require one to surrender some part of one’s constitutional rights (though again not the entirety of those rights) as a condition of getting a government paycheck.

At the same time, on one type of government property the interest in having guns for self-defense may be especially strong: public housing. Though Bruen held that the right to keep and bear arms extends beyond the home, that right certainly extends into the home, and the case for it seems at least as strong for government-owned homes as for privately owned homes. Indeed, the First and Fourth Amendments likely apply to the inside of public housing, much the same way as they apply to privately owned homes. Any concern about bullets lethally penetrating walls would be best satisfied by requirements that firearms in public apartment buildings use ammunition that doesn’t substantially risk this—the shot used in many shotguns, or special frangible ammunition in handguns.

Similarly, while the government likely has considerable power to control what employees and contractors do while performing government functions, that power might not be unlimited, especially when the employees and contractors are working away from government property. Consider, for instance, restrictions on gun possession by foster parents: On the one hand, they are paid by the government to take care of children who are wards of the state; on the other, they do this in their own homes, and in other places where defending themselves (and the children) may be required. Thus, the Seventh Circuit remanded a case involving restrictions on foster parents for consideration of both the historical scope of the right to bear arms post-Bruen and “the interaction of Bruen and the unconstitutional conditions doctrine, including but not limited to the employment context.”