When an earlier version of this bill was passed by a subcommittee of the Iowa Senate, “the second amendment won,” according to a local news article. But it reflects a common misconception: These laws do not defend constitutional rights. I support strong rights to the second amendment to keep and carry weapons, but the amendment only limits the government. It does not require private individuals to own weapons or allow them on their land – just as the first amendment does not require private owners to allow speech that they reject on their property. Giving a mandate for Americans to accept weapons on their property represents an unacceptable violation of their property rights and also violates the Fifth Amendment to the Constitution.
As Duke University’s legal scholar Jacob D. Charles has pointed out, the gun-at-work laws are helping to demonstrate that parts of the gun rights movement have moved on to a new phase. The first wave tried to crack down on government regulations that were seen as unnecessarily restrictive of gun rights. (These campaigns culminated in the 2008 Supreme Court decision District of Columbia v. Hellerwhich established an individual right to bear arms, and McDonald vs. City of Chicago (2010), which stated that the law applies to state and local governments, as well as the federal government. While efforts to expand these precedents continue, a new wave began to target private property owners who have restricted the movement of weapons on their land.
But this phase of the movement has reached too far, even though it is promoted by conservatives who use the rhetoric of individual constitutional rights. Researchers and courts have long recognized that the right to exclude persons and objects with which they do not agree is a key element in the rights of property owners. In fact, the Supreme Court recently upheld in a ruling banning California from granting union organizers a “right of access” to an agricultural employer’s property – three hours a day, 120 days a year – that “[t]the right to exclude is’ one of the most cherished ‘rights to property. “True originalist constitutionalism would embrace a strong view of the rights in the Second Amendment, while also defending business owners’ right to keep guns away from their property if they choose it.
American cities have always regulated weapons. Now most can not.
As Charles explains, gun laws gained momentum after an Oklahoma man sued his employer after he was fired for violating a firearms ban policy. An appeals court upheld the firing. But before it did, Oklahoma changed its law to ban “any policy or rule that has the effect of banning any person, except a criminal, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.” Other states soon began to jump on the bandwagon.
Supporters of strong rights in the Second Amendment should appreciate the link between private property rights and individual autonomy. After all, one of the biggest benefits of being a property owner is the right to use your land as you see fit, even if other members of the community disagree. It includes people protesting against the presence of weapons for all sorts of reasons. Some may be firm adherents of a philosophy of non-violence; such autonomy deserves respect even if you disagree with their views. For example, vegetarian property owners should have every right to ban the presence and consumption of meat on their land even if their neighbors disagree.
Anyone who values property rights should also be wary of imposing a uniform rule on a wide range of property owners with very different situations and needs. Owners of shelters serving victims of domestic violence, for example, ban sometimes weapons – including in the parking lot – to reassure their understandably scared clients. Some companies and other organizations have their own armed security guards and can reasonably conclude both that these guards provide workers with adequate protection and that adding more weapons to the mix would reduce security.
Allowing owners of various types of businesses and non-profit groups to block guns increases not only the freedom of the owners themselves, but also the freedom of customers and clients who, for whatever reason, prefer to guard weapons-free spaces. Of course, some potential customers and employees prefer places where weapons are allowed. But in a diverse society with a competitive market, such opportunities are likely to be plentiful, especially in the pro-gun “red” states that have enacted the bulk of the laws on parking and weapons-at-work.
In addition to undermining property rights, many mandatory gun access laws may also be in breach of the Takings clause in the Fifth Amendment. That argument leans on last year’s 6-3 ruling Cedar Point Nursery v. Hassid – the one who concluded that California could not allow union organizers temporary access to agricultural holdings. Prior to this decision, most experts assumed that during the Supreme Court’s precedent, only a “permanent physical occupation” of property qualified as a “takeover” that automatically requires compensation. Most other state encroachments on property were the subject of a complex balance test, during which the government usually prevailed.
But i Cedar Point, the court found that “a physical appropriation is an acquisition, whether permanent or temporary.” As Professor at Duke Law School, Joseph Blocher has pointed out, in the case of gun-at-work laws – as union organizer regulation – the government requires property owners to accept occupation of their land by people (armed gun owners) that the owners would prefer. to keep out. The trade union context caused many to lose sight of the fact that they Cedar Point decision protects both left-wing and right-wing interests.
The gun laws were intended to ban private militants. Now our hands are tied.
Unfortunately, the introduction of mandatory gun access laws for property owners is part of a more general recent turn against private property rights by many conservatives. Consider, for example, the widespread right-wing support for the use of a prominent domain to build President Donald Trump’s border wall, advocate for laws that force social media companies to host speeches they protest against, and legislation that prevents private owners from to impose requirements for coronavirus vaccination as a condition of entering their land. Washington Post columnist Catherine Rampell noted that the Republican Party has turned to free markets and instead decided that “the state’s primary economic role is not to get out of the way,” but “to reward friends and crush political enemies.” Attacks on private property are an example of this.
The left, of course, has its own perennial dubious anti-property tendencies. Among other things, many “NIMBY” support zone restrictions and harmful use of eminent domain. But that in no way excuses the growing bad behavior of the right wing.
State laws that force unwilling private property owners to allow guns on their land are both a violation of property rights and a violation of the Constitution. Even loyal supporters of gun rights should oppose them.