Posted on 04/23/2008 10:06:53 AM PDT by kiriath_jearim
The U.S. Supreme Court will soon decide a Second Amendment challenge to the gun ban in Washington, D.C.
I am co-counsel to Dick Heller in District of Columbia v. Heller, so I take a backseat to no one when it comes to vindicating Second Amendment rights.
But the "Take Your Guns to Work" law signed by Florida Gov. Charlie Crist last week, with vigorous backing from the National Rifle Association, has nothing to do with the Second Amendment.
It has everything to do with violating the rights of private property owners.
Despite the bill's overwhelming support among his Republican colleagues in the state Legislature, Gov. Crist should have vetoed it. Still, if the business community challenges the constitutionality of the legislation, perhaps a proper respect for property rights will be restored.
Essentially, the new law prohibits business owners from banning guns locked in cars on company property. It applies to employees, customers, and others who have been invited onto the property, provided they have a permit to carry the gun.
The NRA campaigned aggressively in support of the Florida law and comparable laws passed by four other states. Executive vice president Wayne LaPierre explained that it's "your constitutional rights the ban crowd is after."
He went on to note, "the Second Amendment cannot be trumped by corporate power."
Florida Sen. Durell Peaden, Republican, chimed in: "The second thing they wrote about in that Constitution (no doubt, he meant the Bill of Rights) was the right to bear arms."
With due respect to LaPierre and Peaden, these comments reflect a profound misunderstanding about the nature and purpose of the U.S. Constitution. The Constitution is not a code of conduct that private citizens and companies must obey.
It has two primary objectives: to secure individual rights, and to limit the power of government. It's the government, not private parties, which is required to obey the Constitution.
That threshold distinction between private rules and public laws is critical. We will soon find out from the U.S. Supreme Court whether the Second Amendment can be invoked to invalidate Washington, D.C.'s ban on all functional firearms.
I am cautiously optimistic that the court will affirm a lower court ruling that the D.C. government has violated the Second Amendment rights of the city's residents.
But I am even more confident that the court would never consider whether the Second Amendment prevents a private company from banning firearms on its property. Quite simply, that question does not implicate the U.S. Constitution.
LaPierre attempts to skirt the public-private distinction. He notes that a "company parking lot" is "public-access." That, too, is misleading.
Private property does not belong to the public. Employing a large staff, providing services to lots of customers, or permitting public access to a parking lot is not sufficient to transform private property into public. The litmus test for private property is ownership.
The owner of the property should be able to determine - for good reasons, bad reasons, or no reason at all - whether to admit gun owners, non-gun owners, neither or both. Customers, employees and guests who object may go elsewhere. That's the controlling principle.
Courts should not trivialize the Constitution by pretending it controls private behavior.
[Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.]
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Didn’t you have to check your guns at the door when gong into the Saloon in Tombstone?
I agree, and I’ve often agreed with this view here on FR.
A person’s property Trumps all other rights.
You don’t have the right to free speach on my property.
You don’t have a right to anything while you’re on my property.
If you did, it would no longer by MY property, but yours or the goobermint’s.
sure didn’t work for restaurant/bar owners who wanted to allow smoking on their private property did it?
Holy Sh!t !!!
I unintentionally (subconsciously ?) capitalized “Trumps”.
That guy is starting to piss me off.
An employer’s property rights don’t trump my own property rights. Just because I have to park in his parking lot doesn’t mean he owns me.
no guns I believe but you could smoke, unlike here in Dallas.
He's right. Government intrustion is government intrusion...
While I appreciate the work done by Levy in the Heller case, he does overlook a matter addressed by the law and that is of employer/business owner/property owner liability. The new FL law holds them non-liable for the unlawful use of a firearm from the autos allowed onto their property under the provisions of the law. About the only way to better address this matter would be to legally hold the auto as an extension of the domicile whereby castle doctrine would apply. My understanding is that several states have laws that resolve the issue in this manner.
The primary matter that is Constitutional in nature (IMO) is that any law or policy that limits the “bear arms” portion of the 2A is an infringement. If laws and policies are allowed to be drawn to the point that the only place you can “bear arms” in defense of yourself is your own property, then the 2A has lost a true meaning of recognizing the right to self-preservation as being a basic human right.
An additional point about “private property” and “ownership” therof: try not paying your taxes on said property and find out about who really “owns” the property.
Do you have the right to exclude police officers who are carrying guns from your property - especially business property?
Now, begging the question, how is the employer to know that an evil gun is locked out of sight in the vehicle?
Easily if #2 doesn't apply, then neither do #4 & #5: crack open the cars, and search them, and seize anything the property owner considers "contraband"; and coerce confessions out of the offender.
And while we're at it, try banning the possession of Korans, or crosses, or prayer shawls locked in the vehicles. Might as well cover #1, while we're at it.
Oh, and don't forget that Free Republic account on your laptop! Can't have that kind of subversive crap contaminating the mall parking lot; after all, it is private property, not a government owned lot.
The real source of the employers' "no guns" policy was from their liability insurers. Eliminate their liability, and much of the opposition goes away
And "womanize" too! :-)
My vehicle is my property.
So is my person.
If I’m in your store, you can’t just decide to frisk me and take stuff from me.
If I’m parked in your lot, you don’t have the right to ransack my vehicle.
I agree completely.
A much better solution would have been to uphold the right of private property owners to ban guns, and THEN make them responsible for the safety of those on the property.
there’s also the extra liability of not allowing them. if i can’t take it to work because of where i park, will the company guarantee my safety not only at work, but on the way to and from? while i’m out on lunch break?
Government intrusion into private property is a long settled issue. They can, period.
Doesn’t make it right or wrong, and I'm not arguing one way or the other, it just makes it settled.
Sprinklers systems, no-smoking, emergency exits marked and lighted, building codes, home owners associations, do I need to mention the ADA?
The question of whether the government can tell a property owner what they can or not is over. It’s simply a matter of what.
That said this is a balance of one rights over another. My right to self defense over your right to control what is yours. The parking lot rule is a just and fair balance. It allows companies and private property owners to keep the evil and dreaded guns out of buildings, just in case one were to defy all logic and jump up by itself and hurt somebody, but also allows those of us who carry the right to do it and still make a living.
Get a new job? Park far off and walk a bit? That somewhat defeats the purpose of carry doesn’t it? To carry I am forced to walk unarmed in possibly bad areas? Or I should be forced to quit and find a new job? Both are unreasonable.
What if I were an out of state permit holder on vacation? I travel to a tourist attraction only to find a sign telling me that if I park, I’m breaking the law? My choice is to return to my hotel and leave it there for maids to find? Perhaps I should park elsewhere? Some of those parks are literally miles from property not owned by the amusement company.
No, this law is a fine compromise, based on the concerns of both reasonable and unreasonable parties (take your pick) and I’m glad it passed.
re: “The Bill Of Rights only enjoins governmental action against rights.”
That’s just not so, based on the language of the BOR. The second amendment, in particular, states that the right to keep and bear arms “shall not be infringed.” It’s a pretty blanket ban on infringement. By contrast, the first amendment states “Congress shall make no law,” a different level of assertion. It’s pretty clear that the founders understood the difference, because they used it, as evinced by the first 2 amendments.
Bottom line: the government authorized by the constitution and BOR is properly committed to preventing infringements, without regard to source, against the right to KBA. I know that’s not been the practice, but that’s what the language says.
Well, the argument there is that everyone in the area is forced to brethe the smoke. Not that I agree with the argument.
This is not the case with someone carrying a gun.
In most cases, yes. They need a warrant or a legit reason to be on my property at all, gun or no.
and if I wanted to search your property while parked on my property, i have the right to do so, and you have the right to get your a$$ back in your car and leave if you don’t like it...MY property, MY rules......
Private parties are free to decide what they'll allow on their property, where its a business or a homeowner.True. But I have a property interest in the contents of my car, as well. As well as a privacy interest.
A business owner can say that I may not enter his business. And he may say that I may not park in his parking lot. But he may not say that I cannot enter his business wearing silk boxer shorts under my pants, and he may not say that I may not park my car with a gun in the trunk.
What is under my pants and what is in my trunk is none of his business.
Nope.
But I have the right to exclude you and your vehicle from my property.
That way, we BOTH win.
Your rights and mine are maintained, as they should be.
Yes, if they have no legitemate business for being there.
If they’re responding to a reported disturbance or crime, they can enter.
If they’re just fishing around, no.
The Florida law allowing employees to have a firearm inside their locked vehicle while parked at their employer’s lot is a fair balance between the personal Constitutional right to self defense and the employer’s property rights.
Property rights have Constitutional protection (right to contract and fair compensation when a government takes some for a public purpose) but, the government can come on the property for legal purposes (health inspection, OSHA rules, nuisance abatement, etc.) and the government can allow third parties some access to property (fair housing, non discrimination, etc.). This armed employee law is part of that balance as an employee should not be forced to give up personal safety for a job.
You can ask me to leave the property and remove my vehicle. The minute you break into my car without my permission, you have committed a criminal act. The car is MY property.
I disagree with the author on this one because he is only looking at half the private property rights in question.
The Auto is the private property of the owner and doesn't change ownership based on where it is legally parked.
The business owner's rights should be limited to allowing parking of private property on his own property or not.
If the business property owner allows the public or employees to park “Their” private property he has waved his right of restriction to a legal item that may possibly be stored within the property he allows. Unless the item is in plain view, a public nuisance, or illegal.
I know Bob Levy, I used to work with him at Cato. There is a conflict of more than gun-rights v. property rights here though. There is property rights v. property rights.
Most people naturally consider the inside of their car private property...even though yes, it is personal property. The courts have given recognition of this, by limiting the circumstances when and where police may search an automobile.
Other than a super-high security business, I’ve never heard of an employer asserting a right to search it’s employees’ cars... A gun hidden in a car is inside the personal property of that employee, and that employee has not given up his right to the privacy of personal property just because that property is on the real property of the employer.
As long as there is no danger to others (such as explosives) it is none of the employer’s business what is inside their employees’ or customers’ cars. Employees or customers don’t forfeit their private property rights of privacy, simply because they are invited to park that property on a businesses real property.
In the same way a private business can not go up and frisk someone (checking body cavities???) on their property, unless it is clear (as with that high-security business) they require that of people before entrance to their property. There is a reasonable expectation of privacy, in ones person, or ones car or other personal property, in normal, open-to-the-public businesses and employers.
I hope in this instance Bob Levy loses. Conceal-carry laws would become worthless if all the businesses one deals with have the right to violate your privacy, and right to protect yourself, without any reasonable accommodation. What good is a concealed-carry anyway, if you cannot protect yourself in your primary travel....driving to and from work?
Amen! (see my post above)
I agree with you 100% on that....you do not have to consent to a search, but you have to leave if you do not...
Not at all.
I never placed any restrictions or liens on another person’s property, as long as that person or property IS NOT ON MY PROPERTY.
I can (re. should be able to) exclude a person and property from my property for any reason.
If that person’s property contains something I don’t like, I can tell them to leave. I never said I had the right to search or seize his property.
Now, the courts are ruling that he can bring property, of which I object, onto my property. I disagree with those rulings. Even if I allow employees or customers to park on my property, it’s still my property and under my control. It IS NOT a “public place”, as the courts have been want to decide. Its still personal, private property and under my jurisdiction, not the goobermint’s.
Now, that’s my interpretation of Our Constitution.
It may not jive with the courts, but it’s in line with Our Constitution (IMHO).
I agree completely.
The signs by each one of my cattle guards say “No guns, No drugs, No alcohol” All vehicles subject to search. Failure to consent to search is a permanent ban from property.
I have all kinds of oilfield service people on my place everyday. They know better than to violate my rules.
Oh, but only if it’s private property owners disallowing something that the gov’t doesn’t like.
My hypocrite flag went straight up on this one, especially since KCMO just passed a smoking ban (on private property - bars, restaraunts).
I heard something recently that I believe more people should do.
Send a letter to your executor stating that if you are killed in a violent act on a property with a no weapons policy, your estate is to sue that property owner for not protecting you.
It may not hold up, but if it is known that a good percentage of people have done this, it may change some minds.
A motor home can also be your legal residence in every state of the union.
I still think the Author is wrong in this case.
“It has everything to do with violating the rights of private property owners.”
The other side might say “It has everything to do with not violating “the right of the people to keep and bear Arms”.
Resolution of a conflict of rights is what it actually has to do with.
This guys position is so bad it’s hard to know where to start. It is not only government against which rights need to be secured. One of the reasons “governments are instituted among men” is to “secure these rights”.
“The Bill Of Rights only enjoins governmental action against rights. Private parties are free to decide what they’ll allow on their property, where its a business or a homeowner.”
You switched gears there—from ‘action against rights’ to ‘allow on their property’.
Are private parties allowed, as a matter or course, free to decide wheathare I have the right to live once I am on their property? How about if I have the liberty to leave?
“A person’s property Trumps all other rights.”
So you can automatically take someone’s life or prohibit them the liberty to leave once they are on your property.
“You don’t have the right to free speach on my property.”
You mean you can’t say “no” to a demand for sex and you can’t yell for help or defend yourself if attacked by the property owner.
Nope.
Never said that.
“Your rights end at my nose.”
But my property rights come first.
Try holding a protest on my property and see how far you get.
Just because your insurance policy covers your vehicle LIKE a home, doesn’t mean that you can park your “home” on my Home and keep it there.
States treat motor homes like legal residences because of search and seizure rules. That doesn’t grant you squatter’s rights on my property.
So what happens when a person's property rights comes into direct conflict with a corporation's (a legally defined person) property rights.
I think the time has come where corporations need to be declared legally sub-human. That would square up so many of these inconsistent laws / conflicts.
“He’s right. Government intrustion is government intrusion... “
Even if its on the side of the property owners.
Issues of one right versus another can be addressed privately, much as they were addressed before government was instituted.
((Try holding a protest on my property and see how far you get.))
No kidding! theres been a couple of old boys lost they’re jobs by violating my rules.
I'm against the government telling a restaurant owner whether or not people can smoke on his property. Likewise, I think the government has no business telling a property owner they can't tell people whether or not they can restrict firearms on their property. Personally, if I was a mall, restaurant or shop owner, I'd welcome the exercise of concealed carry on my property...but that's a decision that, in a free country, is best left to the property owner.
"Issues of one right versus another can be addressed privately, much as they were addressed before government was instituted."
The right to hold property is essentially, one of the fundamental tenets of liberty...the fewer decisions the property owner is allowed to make about the use of that property, the less real freedom he actually has.
Posting the rules up front solves the issue of consent. Entering the property constitutes agreement to play by the posted rules.
Never said that.
If you can’t automatically take someone’s life or prohibit them the liberty to leave once they are on your property then your statement “A person’s property Trumps all other rights” isn’t true.
If you can say “no” to a demand for sex and you can yell for help when attacked then your statement “You don’t have the right to free speach on my property” isn’t true.
“Your rights end at my nose.”
Keep your nose out of my rights.
But my property rights come first.,
That and “A person’s property Trumps all other rights” are unsupported assertions.
Try holding a protest on my property and see how far you get.
I’ve never argued that property rights never prevail. Just that they don’t always prevail. Your citing an instance where I’d agree they prevail is no support for your previous assertions.
Exactly.
Our society operates in a way practically requiring an overlap of private property.
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