Posted on 10/08/2005 12:31:35 PM PDT by faireturn
Property rights vs self-defense rights
matthew@triggerfinger.org
The question is whether requiring businesses to allow firearms owners who are also employees to lock guns in their cars without risk of being fired is a good thing. This question is, of course, prompted by recent legislation in Oklahoma allowing that very thing.
There's a good bit of case law establishing the principle that an automobile is a traveling property zone of its owner, not the entity who owns the roads and parking lots on which the vehicle rests. The owner of a road may prohibit a vehicle from driving on the road, and the owner of a parking lot may insist that the vehicle be removed, but neither is justified in arbitrarily searching the vehicle or removing what it contains, insofar as the cargo is lawful.
Firearms carried properly in a vehicle are, of course, lawful. That means that their mere presence does not justify the road or parking lot owner violating the property rights of the vehicle owner. In effect, the firearm is not in the parking lot or roadway; it is in the vehicle.
As such, the employer has no more right to object to the firearm than he would if it was possessed in the employee's own home. But as soon as the employee steps out into the parking lot, he's on the employer's property and subject to the requirements of the property owner with regard to firearms -- including a requirement that they not be possessed on the property.
Making that distinction frames the question more clearly. Should an employer be able to require his or her employees to forswear any and all possession and ownership of firearms on pain of termination?
This is a case where two Constitutionally-protected rights (the right to keep and bear arms, and the right to freedom of association) come into conflict.
The question is complicated by the lack of a government actor; private entities traditionally are not bound by the restrictions placed upon government, at least as most First-Amendment law has held. As if that was not enough confusion, the First Amendment states "Congress shall pass no law..." (implying a restriction only upon government) versus the Second Amendment's blunter "... shall not be infringed."
What requirements can a private employer place upon their employees regarding their legal off-work behavior and possessions? How do those requirements differ for employers that are not entirely private -- eg, publically-traded or limited-liability corporations?
" --- private entities traditionally are not bound by the restrictions placed upon government, at least as most First-Amendment law has held.
I disagree. All citizens are obligated to support & defend our Constitution, as is evident by our required oath of citizenship.
No.. -- We made it a public policy 214 years ago that the right to keep and bear arms shall not be infringed.
This constitutional restriction applies [subject, of course, to due process of law] to everyone in USA.
More importantly, the general right to property is not the same thing at all as the specific, concrete right to use and/or dispose of a particular item or resource. In other words, the right to property does not give any particular person title to any specific property--it just means that an individual has the right to acquire title to property (provided the previous owner is willing to transfer title,) and that having title to property gives the owner the right to decide how, when, where and by whome said property will be used.
Similary, the right to keep and bear arms does not mean that the government (or anyone else) has to provide you with at least one gun and one bullet, free of charge. Nor does it mean that you have the right to get or stay hired by an employer, regardless of your politics, religion, sexual orientation or gun ownership status.
You have the right to own a gun. An employer has the right to deny you employment for any reason whatsoever--or for no reason at all. A right confers freedom of action within some defined scope or domain, but it stops where that domain ends (as defined by title or its equivalent,) or where the specific rights of others (as defined by title or its equivalent) would be violated. The key concept is title, which is necessary to define which particular items or resources are actually owned by which parties.
The historical record isn't even open to debate: the purpose of the Bill of Rights was to explicitly name some (but not all) rights that all persons naturally possess, and that no government has any rightful power to infringe--regardless of the "compelling state interest" that may exist, or the powers that a Constitution may grant.
However, the Bill of Rights is not a criminal statute that makes the infringement of an individual's rights a Federal crime when committed by private parties.
Nevertheless, all Fed, State, & local officials are sworn to support those rights, just as citizens are obligated by their duties of citizenship.
More importantly, the general right to property is not the same thing at all as the specific, concrete right to use and/or dispose of a particular item or resource. In other words, the right to property does not give any particular person title to any specific property--it just means that an individual has the right to acquire title to property (provided the previous owner is willing to transfer title,) and that having title to property gives the owner the right to decide how, when, where and by whome said property will be used.
Similary, the right to keep and bear arms does not mean that the government (or anyone else) has to provide you with at least one gun and one bullet, free of charge. Nor does it mean that you have the right to get or stay hired by an employer, regardless of your politics, religion, sexual orientation or gun ownership status.
Agreed. These facts are not at issue here.
You have the right to own a gun. An employer has the right to deny you employment for any reason whatsoever--or for no reason at all.
Even 'reasons' that violate our constitutional rights? I know that several State legislatures & at least the Georgia Supreme court disagree. They say that your car is personal property, and it's legal contents cannot be used as an excuse to deny you employment.
A right confers freedom of action within some defined scope or domain, but it stops where that domain ends (as defined by title or its equivalent,) or where the specific rights of others (as defined by title or its equivalent) would be violated. The key concept is title, which is necessary to define which particular items or resources are actually owned by which parties.
Exactly the point. Illegal searches are being misused by companies in order to fire otherwise law abiding employees. -- Employees who are exercising their RKBA's in their cars.
The historical record isn't even open to debate: the purpose of the Bill of Rights was to explicitly name some (but not all) rights that all persons naturally possess, and that no government has any rightful power to infringe--regardless of the "compelling state interest" that may exist, or the powers that a Constitution may grant.
However, the Bill of Rights is not a criminal statute that makes the infringement of an individual's rights a Federal crime when committed by private parties.
Nevertheless, all Fed, State, & local officials are sworn to support those rights, just as citizens are obligated by their duties of citizenship.
More importantly, the general right to property is not the same thing at all as the specific, concrete right to use and/or dispose of a particular item or resource. In other words, the right to property does not give any particular person title to any specific property--it just means that an individual has the right to acquire title to property (provided the previous owner is willing to transfer title,) and that having title to property gives the owner the right to decide how, when, where and by whome said property will be used.
Similary, the right to keep and bear arms does not mean that the government (or anyone else) has to provide you with at least one gun and one bullet, free of charge. Nor does it mean that you have the right to get or stay hired by an employer, regardless of your politics, religion, sexual orientation or gun ownership status.
Agreed. These facts are not at issue here.
You have the right to own a gun. An employer has the right to deny you employment for any reason whatsoever--or for no reason at all.
Even 'reasons' that violate our constitutional rights? I know that several State legislatures & at least the Georgia Supreme court disagree. They say that your car is personal property, and it's legal contents cannot be used as an excuse to deny you employment.
A right confers freedom of action within some defined scope or domain, but it stops where that domain ends (as defined by title or its equivalent,) or where the specific rights of others (as defined by title or its equivalent) would be violated. The key concept is title, which is necessary to define which particular items or resources are actually owned by which parties.
Exactly the point. Illegal searches are being misused by companies in order to fire otherwise law abiding employees. -- Employees who are exercising their RKBA's in their cars.
Kiss of death 'bloggers' bump..
Only 63 views.
I'm waiting to see how this all shakes out - and what side the courts will fall on (although I have my suspicions).
It is my opinion that the 2nd Amendment is the law of the land, the vehicle is private property, and that the employer has no right to dictate to the employee what he may or may not keep in his vehicle.
At work and on the premises is another matter. Although, I am just waiting for the first lawsuit of an employer who denied a CCW the right to self defense, posted the "no guns allowed" signs (an open invitation), and then provided no security for the employees who were then defenseless, sitting ducks. That issue begins the REAL debate!
I am sure people look at this with the wary eye of what preditory law has done to our legal system.
If an employer can get sued, or is responsible for, an employee or other person getting injured on their property (parking lot, sidewalks, premises, buildings), then, according to the logical thinking, they would also be liable if an employee had a gun in his vehicle and decided to get the gun & go "postal". The employer rediculously sees a policy banning all weapons on any property owned by them as a way of avoiding liability.
However, it is MY contention, that - given the sue happy world we live in - the employer would be sued anyway if anyone went "postal" on their premesis, for failing to provide proper security.
I complain all the time about our legal system and lawyers, but if an employer has a written policy banning all weapons from the premesis and the parking lots (vehicles), that employer is then legally obligated to protect the flock of "sheep" it just created. If the employer fails to do so, he should be liable.
And I would be the FIRST one to sue over that issue.
It's a catch 22 for the employers, but when they come down on the side of prohibiting self-defense, I really think they will lose in the long run.
What the legislature should do is provide protection from 'postal madmen' lawsuits except for businesses which forbid firearms from employee's vehicles (the legislators could include in the 'legislative findings' section examples of people who have stopped shootings by retrieving firearms from their cars). Put that law in place any the 'no guns in vehicles' signs would disappear by themselves.
As a practical matter, this is simply untrue. Even more so once employment has been awarded.
If employers property rights confer to them the authority to dictate the contents of an employees means of private conveyance, they similarly face forfeiture if an employees means of private conveyance contains illegal drugs. Employers face no such risk of forfeiture, therefore the contents of an employees means of private conveyance are beyond the employers reach.
The employer has no right to coerce you to either own/carry or avoid owning/carryihg a gun. But he does have the right to avoid hiring you, or to fire you. Why? Because of his property rights in his capital. And any suit against an employer based on the idea that an employee was improperly fired due to gun ownership should fail for the same reason that a suit against a private individual that claims damages for refusing to buy product from a particular vendor (for whatever reason) should fail. You have the right to decide whether or not to buy something, and from whom. An employer has exactly the same right--because everyone has the same rights equally.
Doesn't Civil Rights and anti-discrimination precedents play merry hell with your unrestricted conception of the employers property rights?
Yes. Such precedents are both morally wrong and Unconstitutional. Let's not make the situation even worse by adding yet more wrongful precedents, just because we favor the Second Ammendment and an armed society. Using the power of government to enforce false rights is what the left is all about. Such false rights lead to logical contradictions that ultimately destroy the moral fabric of society.
I'm sorry. I just can't agree with your POV. And my views on the Second Amendment have little to do with it.
Engaging in commerce is an activity that is subject to regulation by the Constitution, even though ones private property may be used in such activity.
The two should not be conflated.
I just can't agree to your reading. Such an unrestricted conception of commerce, without even delving into the "rights" of a fictional entity, could and would eventually be used to leverage abuses against other rights of the individual too numerous to list. I dare say feudalism would not be an inconceivable outcome.
I would fully support a tightening of the language regarding commerce, including by amendment, to reflect the fact that engaging in commerce does affect circumstances outside ones private property, and as such is every bit as legitimately regulated as the interactions between individuals.
As a matter of practice, no such clarification is needed.
There must be some dividing line between the sanctity of each man's "vine and fig tree" and what may be coerced from individuals by engaging in commerce.
If such a dividing line is not strictly Constitutional, it should be made so.
Even 'reasons' that violate our constitutional rights? I know that several State legislatures & at least the Georgia Supreme court disagree. They say that your car is personal property, and it's legal contents cannot be used as an excuse to deny you employment.
Illegal searches are being misused by companies in order to fire otherwise law abiding employees. -- Employees who are exercising their RKBA's in their cars.
The employer has no right to coerce you to either own/carry or avoid owning/carryihg a gun.
There is no question, or dispute on that point.
But he does have the right to avoid hiring you, or to fire you. Why? Because of his property rights in his capital.
His property rights do not trump your right to have a gun in your car. Firing you for that 'reason' is constitutionally 'unreasonable'. As you say "everyone has the same rights equally."
And any suit against an employer based on the idea that an employee was improperly fired due to gun ownership should fail for the same reason that a suit against a private individual that claims damages for refusing to buy product from a particular vendor (for whatever reason) should fail. You have the right to decide whether or not to buy something, and from whom. An employer has exactly the same right--because everyone has the same rights equally.
Any suit against an employer based on the fact that an employee was improperly fired due to gun ownership should win, -- based on the idea that employers have no reasonable basis to infringe on our rights to have arms in our cars.
Why would you approve of employers property rights trumping employees gun rights?
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