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Employers Must Pull The Trigger
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Published: April 22, 2008
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.
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Reader Comments
Posted by ( Lakota55 ) on April 22, 2008 at 6:41 a.m. ( Suggest removal )
What Mr Levy is ignoring is that the people who can keep a Guns-Locked-In-Your-Car ( NOT Guns-At-Work) are licensed by the state (after a background check) to carry a gun and not of the general public.This law does not allow a Licensee to carry the gun into the work establishment only to keep his weapon in his own private vehicle. So whos private property rights are protected here? An Individual whose 2nd Amendment right is being upheld via a permit issued by the state of Florida is being protected.Dont say that 'safety concerns' are an issue here since criminals wont obey a ban on guns on any private property so that point is moot.
Very rare is the Concealed Weapon Permit (CWP)holders license revoked for use of a gun in a crime ( background checks work )
Its doubtful that any lawsuit will overturn this law since the people protected in it are licensed by the state.
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Posted by ( OrlandoNative ) on April 22, 2008 at 3:13 p.m. ( Suggest removal )
While I would be one of the first to support the right of a property owner to be able to control the usage of their own property; I don't agree with the supposedly learned counsel in this area.
By providing 'public access' to at least portions of the property; they open themselves to some degree of co-operation with external rules and regulations. Just like the requirements for handicapped parking, disabled access to elevators and rest rooms.
It's not reasonable for people to have the *right* to be armed for their own self defense; but yet not be able to actually *carry* those arms along with them, when and where they actually might need to *use* them. Doing so actually *invalidates* the right they're supposed to have as 'non-infringeable'. Indeed, the Second Amendment doesn't even *specify* that *anyone* can infringe the right. Not even a private property owner.
Now, while I'm sure a case could be made that one should be able to take a firearm one has a permit for anywhere; I'm not going to go that far. But a person's car is their own property; and having a firearm locked inside it is not really the business of *anyone* other than that car owner.
As for buildings, well, my take is that if the building is willing to guarantee the safety of everyone who might enter, then they can reasonably require arms be either 'checked in' at the door (similar to what bars in Texas and other places have done for years); or else locked in a secure place (ie the owner's locked car); until the firearm's owner is ready to leave.
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Posted by ( duke6 ) on April 22, 2008 at 5:55 p.m. ( Suggest removal )
Mr. Levy seems to have forgotten that there was a time, not long ago, when private business owners could legally refuse to hire people based upon their skin color or their religion. This is the same issue.
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Posted by ( theaton ) on April 22, 2008 at 10:15 p.m. ( Suggest removal )
It was obvious from the oral arguments of the Heller case that neither counsel was a supporter of rights. Rights are absolute and not subject to laws. My rights stop only when they infringe on your rights. If I own property, my property rights stop at your right to self defense. It's unfortunate that we have a world full of lawyers that have obviously never read the Constitution of the United States nor any of the writing s of the founding fathers.
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Posted by ( Wildfire ) on April 23, 2008 at 11:50 a.m. ( Suggest removal )
Most educated attorney, please answer a legal question for me: If the police “felt” I was “a big-time drug kingpin” and that the proof needed to bring me to justice could be found in my LOCKED vehicle, in a form undetectable by a trained dog.
Yet, their “feeling” wasn’t based on anything they could use to get a legal search warrant.
Here’s the question: LEGALLY; could they simply get permission, from the company I work for and on whose property my vehicle is parked, to search my vehicle?
If not, why not?
And this differs from allowing guns in my locked vehicle, HOW?
Thank You.
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Posted by ( tinkshot ) on April 23, 2008 at 6:51 p.m. ( Suggest removal )
If the 2nd amendment is negotiable on private property, then I guess the 13th is also? And all those pesky, intrusive OSHA regs and other Federal Laws don't apply either? HOT DANG.... I wanna be there and watch when the first moronic employer tries throwing off THAT yoke of 'property rights' intrusion.
My right to defend my life and that of my loved ones trumps any property rights including those of an employer. Defense of one’s life is absolute and no one else has the right to demand that I give it up in order that they may exercise a lesser right of private property determination. NO law written will EVER prevent a person who has no regard for the law, from breaking it.
This debate is not about tools (guns are tools) OR Safety, it is about CONTROL.
‘Laws that forbid the carrying of arms disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.’ Until people learn reason and evil men stop doing evil deeds, I'll choose to protect myself.
By the way, my Rights apply whether you agree with them, understand them, or not. That's why they are called "Rights."
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Posted by ( Schmoe ) on April 23, 2008 at 8:17 p.m. ( Suggest removal )
I have to agree in principle with the counselor. Property rights are higher than self-defense, especially as pertains to real property. In other words, I have no right to access your property except by your permission, and you can predicate your permission on just about anything.
Of course, this isn't how it really works. As someone else said, try predicating someone's access (to a commercial space) on race and watch what happens.
So, society has decided, right or wrong, that there are some bases on which property rights can be subordinated to other ... factors (rights, etc.)
Perhaps the counselor agrees with me that such a step was wrong, even if the intent went to something noble.
But stay with me, that's only point one.
Point two is that corporations (especially publicly traded ones) have blurred the line between public and private. They claim and receive "public" benefits and perhaps need to be held to a different standard than the strictly private operation.
Notice that it's mostly the public corporations who seem to want to ban guns in people's private property (cars) if parked on their lots.
Hmmm. Interesting. Have to leave it at that, since I don't want to be too verbose. But I hope that's food for thought, even for Bob Levy. Humbly proffered.
And, in all sincerity, I want to say Thanks Bob--and Mr Gura too, for your great work on Heller.
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