Lowcountry neighborhood considering making community gun-free space

Source: Live 5
Updated: Jun. 4, 2021 at 4:07 PM EDT
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BERKELEY COUNTY, S.C. (WCSC) - A Lowcountry neighborhood is considering making their community a gun-free space. The Homeowners Association of Del Webb at Cane Bay Association, Inc is considering a change to its by-laws that would ban weapons from the area of the community owned and operated by the HOA.

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 will go 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 stiff opposition from some residents.

“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.”

He says 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.”

While Winslow says the courtroom options are limited, 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.”

Live 5 News reached out to the Del Webb at Cane Bay HOA for comment but have not yet heard back.

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