Guns or property rights?

[Roguish Lawyer]

Thought this article might stir up some good discussion here. I've been arguing with the author and some of his colleagues about it all day on Facebook.

http://www.eastvalleytribune.com/story/140569

Gun rights shouldn't trump private property

Clark Neily, Commentary

June 16, 2009 - 2:58PM

The Arizona Legislature has been considering several bills that would trample property rights in a misguided attempt to promote gun ownership.

HB2474 would require businesses to allow employees and patrons to bring firearms into parking areas as long as the guns stayed locked in their vehicles and would allow lawsuits against businesses that violate the law if anyone is injured or killed because a gun owner could not access a weapon. SB1113 would require restaurants to allow people who are not drinking alcohol to bring their guns onto the premises, unless they post signs at every door to keep weapons out. Similar proposals have cropped up in other states, including Florida, where business owners are forced to allow customers and employees to keep guns locked in their cars in the parking lot of the business.

I am a firm believer in the constitutional right to own guns, and in fact I was one of the three lawyers who litigated District of Columbia v. Heller, the historic case in which the U.S. Supreme Court held for the first time that the Second Amendment protects an individual's right to keep and bear arms. That case was an important victory not just for gun ownership but for liberty itself - something this country was founded on, but which is in increasingly short supply as the government continues its headlong rush down the road of good intentions.

That is why it is so dismaying to see the Heller decision being used to undermine another fundamental individual right: private property. An essential element of that right is the ability to decide who may come onto one's property, for what purposes, and under what conditions. My organization, the Institute for Justice, has been at the forefront of the battle for property rights for nearly two decades, having represented the homeowners in the infamous Kelo eminent domain case, as well as Mesa brake shop owner Randy Bailey, whose property we saved from eminent domain abuse in 2003.

Like every other constitutional right, the right to keep and bear arms is a restriction on government power, not private conduct. Gun rights advocates typically favor more freedom and less government, so it is particularly disappointing to see them supporting laws that would strip away business owners' right to decide who, if anyone, may bring guns onto their property. Legislators should not impose yet another government-mandated, one-size-fits-all solution on a "problem" that private individuals can and should work out among themselves. If gun owners feel unsafe without their weapons, or if customers feel more secure in "gun-friendly" establishments (as I certainly would), then they can choose to patronize businesses that cater to those preferences.

But it should be a matter of choice, not government fiat.

Of course, this is not an isolated example of government disregard for the property rights of business owners, which includes, for example, smoking bans in restaurants and bars. But two (or even two-dozen) wrongs do not make a right, and people who understand that to have liberty means freedom from government compunction - not the right to have your way in dealing with other private parties - should not support these bills.

Clark Neily is a senior attorney at the Institute for Justice in Washington, D.C.

[Sten]

I need a clarification, owners do not have the right to say "no guns" on their private property?

[JJ_BPK]

HB2474 would require businesses to allow employees and patrons to bring firearms into parking areas as long as the guns stayed locked in their vehicles

SB1113 would require restaurants to allow people who are not drinking alcohol to bring their guns onto the premises, unless they post signs at every door to keep weapons out. .

If in fact these bills are written in this fashion, these states will preserve both property and gun rights.

The owner of a parking lot by definition relinquishes some rights, in that the owner wants people on the property. They are invited.

The person that takes the owner up on the invite, does not lose their 2nd amendment right because they keep their weapon "on their property" (the car/truck), it is locked but accessible only when the owner is in the vehicle.

If the owner of an establishment is allowed to tell those entering their establishment that they do not allow weapons via posted signage, they have preserved their property rights.. and if they elect not to post signage, the patron preserves their 2nd amendment right to carry on their person.

I see it as win-win...

My $00.0002

[greenberetTFS]

Originally Posted by JJ_BPK

If in fact these bills are written in this fashion, these states will preserve both property and gun rights.

The owner of a parking lot by definition relinquishes some rights, in that the owner wants people on the property. They are invited.

The person that takes the owner up on the invite, does not lose their 2nd amendment right because they keep their weapon "on their property" (the car/truck), it is locked but accessible only when the owner is in the vehicle.

If the owner of an establishment is allowed to tell those entering their establishment that they do not allow weapons via posted signage, they have preserved their property rights.. and if they elect not to post signage, the patron preserves their 2nd amendment right to carry on their person.

I see it as win-win...

My $00.0002

JJ,

You point is well taken,I too believe it's a win-win...................

GB TFS

[Razor]

Is a business owner required to maintain fire suppression equipment in structures on his property if they are open to the public, whether he wants the system or not?

[Richard]

Originally Posted by Razor

Is a business owner required to maintain fire suppression equipment in structures on his property if they are open to the public, whether he wants the system or not?

Don't see how that's the same as allowing/denying weapons on your property. No shoes - no shirt - no service...my call...and no weapons if I don't want them on my property...my call, too.

Richard's $.02

[Penn]

Razor, The answer to your question is yes they are required to do so. Usually under the direction of the fire code to enforce public safety.

[Penn]

Richard, on reflection would it not, as a business owner be an astronomical insurance premium not to enforce a firearm free zone.
As a business owner I would not want to have weapons of any kind in my working environment.
edit to add: Unless they were mine.

[dr. mabuse]

That situation is similar to the sticky wicket here in Texas allowing how CHL guns in employee cars in employers parking lots is o.k. vis-a-vis business owner's rights to say who comes and goes and etc.

Maybe we'll finally get it passed during the special session.

A lot of bills during the last go around didn't get passed here due to a log jam over voter I.D. cards and such.

[Penn]

Isn't this really a discussion of Civil rights vs Civil liberties?

The second amendment secures us the right to bear and own fire arms. It is a right that is an "unalienable right", whereas, the right to bear arms on someone property is a civil right and a privilage.

[longrange1947]

Sorry my car, my property. You allowed me to bring my property onto your property and as long as my weapon is in my car, thus on my property, then I have not violated your right to not have weapons on your property. The weapon is on my property, the car.

As far as restaurants, without the sign, how would I know that I cannot bring weapons onto your property or are you saying that the law show read no weapons on any restaurant property thus relieving me of my right to permit it?

Litigation for permitting weapons, how about me suing you for not allowing me to have my weapon and some jacka** hurts or mugs me while I am defenseless due to your dislike of weapons?

Just some thoughts on the passing scene.

[Peregrino]

I think JJ_BPK hit the nail on the head. Firearms secured in POVs in parking lots are not the same as firearms on the person in the premises. I agree, the property owner can prohibit firearms on the person within the business establishment. I don't agree that the same applies to parking lots. I have a legitimate expectation of privacy in my vehicle. Even LEOs have to have probable cause before they can set aside my rights. I'm reasonably certain there's enough case law to support a contention that the owner gives up a portion of his property rights when he opens his property to the public. (Unfortunately, I don't have access to the Lexus-Nexus Law Library to prove my contention.) Fuel to the fire!

[Surf n Turf]

Originally Posted by longrange1947

Sorry my car, my property. You allowed me to bring my property onto your property and as long as my weapon is in my car, thus on my property, then I have not violated your right to not have weapons on your property. The weapon is on my property, the car.

As far as restaurants, without the sign, how would I know that I cannot bring weapons onto your property or are you saying that the law show read no weapons on any restaurant property thus relieving me of my right to permit it?

Litigation for permitting weapons, how about me suing you for not allowing me to have my weapon and some jacka** hurts or mugs me while I am defenseless due to your dislike of weapons?

Just some thoughts on the passing scene.

I think LR1947 has it right
I believe that the appropriate approach here is that, under general contractual principles, no employer can rightfully extend its reach into your car without also assuming all duties and responsibilities of providing for your protection. There's a similar rationale behind making common carriers (buses, planes, etc.) responsible to "insure" the safety of their customers against accidents.
It also appears to me that this rule for the Company makes them MORE liable in the event of a worker or patron shooting up the place, not less. The workers have now been told that there are NO guns anywhere on the property, and that they are as a result "safe." So the company has now 100% assumed responsibility for protecting the workers or customers at any point on the company's property.
I'm sorry, when you invite me in, I do not give up my rights to defend myself
SnT

[nmap]

Property rights, at least where I live, are remarkably limited. Even a private home is subject to code compliance - and woe betide the homeowner who lets weeds grow in the yard. The degree of public control already in place makes me wonder whether are not straining at a gnat after downing an elephant.

I see the problem as two-fold. Those who wish to lawfully bring weapons onto private premises are, in essence, saying that those who control the premises are not providing a safe environment. On the other hand, those who control the location seem to be saying that the area is safer if lawful possession of a weapon is prevented.

So isn't the real issue about whether a private property owner can limit the degree to which customers can protect themselves?

The problem, as I see it, is that few businesses can really offer security to their patrons. Those who intend to commit a crime, particularly violent crime, seem unlikely to be deterred by a prohibition against possession of weapons - nor by the preferences of the owner. (Joke: unless the owner is a chef with really sharp knives! ) So we must balance the absolutes of property rights and self-defense and come to some point between extremes.

I guess I would come down in favor of self-defense except in those cases where the owner could convince me of their ability and determination to provide that protection.

[JJ_BPK]

There is a clear distinction between the owner of property and their rights to allow access.. "no shoe, no shirt, no service"

and the government, at any level, implementing blanket law to block my constitutional rights to bear arms to protect myself and love ones..

That is exactly why the 2nd amendment was written. We will not have a government that takes away the peoples right to personal protection.