The defendant housing authority in Hunter argued that the ban is consistent with historical tradition under a “more nuanced” analysis. Bruen permits a more flexible approach to analogy when modern laws address phenomena unknown at the time of the Founding, and here the housing authority asserted that public housing was unknown at the Founding and that this nuanced analysis allowed reasoning by analogy to restrictions on fundamental rights unrelated to firearms or the Second Amendment. Namely, the housing authority suggested that:
public housing authorities may limit certain firearms on their properties despite the fact that the guarantees of the Second Amendment are at their zenith within the home, just as public housing authorities may limit who may be part of a tenant’s household despite the deeply rooted fundamental right of a family to live together as a family.
Essentially, the housing authority’s argument was that the established right of public housing authorities to exclude certain family members from authority property (those who use illegal drugs or are registered sex offenders, for example), despite the fundamental right to live together as a family and absolute respect for that right around the Founding, must imply a corollary right to ban firearms today notwithstanding the Second Amendment.
The housing authority continued its defense of the handgun ban after Suddaby's decision, but in a surprise twist, the agency essentially settled with SAF and the residents this week; agreeing to a permanent injunction of the handgun ban, as well as paying $150,000 to the plaintiffs for attorneys' fees.
Under the terms of the permanent injunction, the Cortland Housing Authority "shall permit Plaintiffs and all CHA tenants to own and possess firearms within their residential units, to engage in lawful self-defense and defense of others in the common areas on CHA property and in their residential units, and to lawfully transport firearms through the common areas on CHA property."
