Charleston, SC

Gun-free community spaces are being considered by a Lowcountry neighborhood

Libby-Jane Charleston

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The proposal is for the neighborhood to be a gun-free spaceShona Corsten/Unsplash

A neighborhood in the Lowcountry is considering a plan to make their community a gun-free space. It's a landmark change being considered by the Homeowners Association of Del Webb at Cane Bay and the plan would be to ban guns from the area of the community which is owned and operated by the HOA.

According to Live 5 News, the proposed rule cites the passing of House Bill 3094, the “Open Carry with Training Act”. Signed by Governor Henry McMaster on May 17, it goes into effect on August 16. The HOA’s rule would prohibit “the carrying of a firearm either concealed or openly carried” on any common area property.

According to a notification sent to homeowners, the proposal was met with some opposition from a group of residents.

The notification states: “Especially problematic for some was that the proposed policy applied to all common areas (roads, sidewalks, ect) not just the resort. As a result of the discussion, the Board decided to table the proposed policy and to survey the community to get their thoughts on if and where a ban on firearms within Del Webb should be imposed.”

According to Attorney Tom Winslow, from Goldfinch Winslow, LLC, despite the new state law and the 2nd Amendment, the HOA is within its legal rights if it decides to enact the landmark ban.

“An HOA is given this large ability to regulate within the law, its community. Just like you have private property, the HOA also has private property. The HOA has common areas that they have authority over, and you have given them authority on a contractual basis," Winslow said.

The Del Webb HOA has clearly laid out that it has no authority to regulate firearms in private homes or yards, just the common areas it controls. Winslow says whether or not the ban on firearms is legal has everything to do with property rights. If the HOA owns the roads and sidewalks, then it controls what you can and can’t do on those roads and sidewalks.

“Especially problematic for some was that the proposed policy applied to all common areas (roads, sidewalks, ect) not just the resort,” the notification reads. “As a result of the discussion, the Board decided to table the proposed policy and to survey the community to get their thoughts on if and where a ban on firearms within Del Webb should be imposed.”

Attorney Tom Winslow with Goldfinch Winslow, LLC says, despite the new state law and the 2nd Amendment, the HOA is within its legal rights if it decides to enact such a ban.

“An HOA is given this large ability to regulate within the law, its community,” Winslow said. “Just like you have private property, the HOA also has private property. The HOA has common areas that they have authority over, and you have given them authority on a contractual basis.”

The Del Webb HOA has clearly laid out that it has no authority to regulate firearms in private homes or yards, just the common areas it controls. Winslow says whether or not the ban on firearms is legal has everything to do with property rights. If the HOA owns the roads and sidewalks, then it controls what you can and can’t do on those roads and sidewalks.

“If the state or county owns the road then it is not common area and therefore the HOA does not own it or regulate it,” Winslow said. “They may have a common area park or sidewalk but if they don’t regulate and own it, then they can’t mandate rules on it.”

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Gov. Henry McMaster signed the Open Carry with Training Act into lawWAFB

Winslow said courts have routinely held up limitations on constitutional rights and there may not be much in the way of legal recourse for those who don’t agree with the HOA rules.

“You have free speech, but you can’t always say whatever you want to say. You have freedom of the press but you can’t just print whatever you want. You can’t carry a weapon wherever you want to carry a weapon,” Winslow said. “By joining an HOA you voluntarily submitted yourself to another level of government and you’re under their laws as well.”

Winslow also said the courtroom options are limited, but there are two other things you can pursue if you don’t like the rules.

“One, you leave and go somewhere else where you like the rules,” Winslow said. “Two, you change the rules by becoming an elected member of the HOA.”

According to the HG llegal website, HOAs are afforded a great deal of freedom to create and enforce various rules for homeowners and those that reside within buildings in the community property. Some states have laws against HOAs infringing upon basic constitutional rights granted to persons residing in the state.

However, other states do not have these laws that prohibit these actions. For the homeowner, he or she should research to determine what state may restrict or permit the HOA in removing the rights to bear arms within the home. If the law is broken by the panel, a homeowner may need to communicate this violation to the members so the rule is removed.

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I'm a journalist and author writing across a wide range of topics, including tech, travel, history, business/startups, relationships, beauty & fashion, British royal history, & local stories concerning Charleston, S.C (where I have a long family history on my father's side: hence my surname! ) Former HuffPost Assoc Ed, ABC TV, ATV Beijing correspondent and many more. Author of "Fatal Females." Mother of three boys: I will love them until the Statue of Liberty sits down.

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