8/24/2008

Gun Owners v. Property Rights

Steve Chapman on Florida's law regarding businesses letting guns on their property:

Supporters of the right to keep and bear arms have long recognized the value of firearms for the defense of life, liberty and property. But in Florida, a perverse conception of the 2nd Amendment has produced the opposite effect: The cause of gun rights is being used to attack property rights.

In 1987, Florida wisely affirmed personal freedom by letting law-abiding citizens get permits to carry concealed weapons. But this year, the legislature decided it was not enough to let licensees pack in public places. They also should be allowed to take their guns into private venues -- even if the property owner objects.

The "take your guns to work" law says anyone with a conceal-carry permit has a legal right to keep his gun locked in his car in the company parking lot. Until recently, companies had the authority to make the rules on their own premises. But when it comes to guns, that freedom is defunct.

The National Rifle Association says any corporation that forbids firearms in its parking areas is violating the 2nd Amendment. That may sound like a promising argument, since the Supreme Court recently struck down a Washington, D.C., handgun ban as an infringement on the constitutional guarantee. It's not.

Robert Levy, the Cato Institute lawyer who participated in the successful challenge of the Washington ordinance, says the Florida law "has nothing to do with the 2nd Amendment." The Constitution, he notes, is a limit on government power, not a constraint on what private individuals or corporations may do. . . .


While I admire Steve, his discussion is much too simple here. I agree with him that property rights should triumph, whether I agree with the owner's decision or not, but the situation is not as simple as his newest piece indicates. Federal OSHA rules dealing with guns make it extremely difficult for employers to let guns in areas of employment. As it is the Oklahoma law that was similar to the Florida one was struck down in Federal court because of the claim that the Federal rules took precedent. I wouldn't be surprised if Florida law was similarly struck down in the case that has been filed there. The direct solution would be to get rid of the Federal rules (something that Chapman's piece doesn't discuss) and leave the decision completely up to the property owners. The liability issues and the fact that the courts seem treat the risks from the presence of allowed guns differently than the risks from not allowing guns around create more problems. The NRA argument is wrong, but they are only arguing this because of their desire to get around the Federal OSHA rules and trying not to lose another case in court.

UPDATE: I have been advised that the judge in Florida upheld the Florida law. However, this does not change the general point being made here. Thanks to Marion P. Hammer for the note. She sent me the following:

They [the Florida Chamber of Commerce and The Florida Retail Federation] argued that the law requiring businesses to allow guns in vehicles in their parking lots constituted an unconstitutional "taking" of their property. In court, the federal judge ruled against them – THEY LOST.

They argued that OSHA regulations require them to provide a safe work environment for their workers, which required them to bans guns in parking lots to comply with OSHA requirements. In court, the federal judge ruled against them – THEY LOST.

They argued that, as employers, they had an absolute right to control the conduct of their employees and could ban guns from employee vehicles in company parking lots while employees were at work. In court, the federal judge ruled against them – THEY LOST.

Those are the three points argued by the Chamber and the Retail Federation. THEY LOST ON ALL THREE POINTS..

At the hearing and in his ruling, the judge complained about language drafted by the legislature saying that it doesn't give businesses clear guidance on whether the laws allows business owners to ban customers from having guns in their cars in parking lots. Rather that clear up the confusion according to the intent of the legislature, he ruled that businesses can prohibit customers from keeping guns in their in the parking lot.

CURRENT STATUS:

The judge upheld the new NRA-supported law.

If a business has a gun ban policy, employees who possess a valid Concealed Weapons License are exempt from the gun ban policy and cannot be fired for exercising their gun rights.

If a business has a gun ban policy and no employee has a valid CW license, then that business can also ban customers from having guns locked in their vehicles in the parking lot while they shop or conduct business.

A business may not search vehicles to see if a person has a firearm; may not ask if a person has a firearm in the vehicle; may not ask if a person has a CW license.

Labels: ,

4 Comments:

Blogger Mike Gallo said...

John, I think it's also very important to remember that you car is an extension of your home in most common law traditions. I run into the problem of driving through a high-crime neighborhood on my commute, but if I want to park at work with a gun in my car, I must do so on the street or risk getting fired (as I can't use the parking lot). What's in my car is simply not the employer's liability.
Furthermore, I simply don't see how these laws interfere with OSHA rules any more than say, local "green space" ordinances in parking lots that could decrease visibility in a parking lot, increasing rick of an accident. I don't think OSHA applies until you enter the actual work area, and I've got a pretty good base of experience dealing with federal regs here in the chemical industry. Now, not having punji stake pits on the way into the building may fit into OSHA, but having anything in a car on the premise? It's a stretch for any judge to apply OSHA regs in that manner(not that I don't think you could find some hack judges to rule that way).

8/24/2008 1:17 PM  
Blogger John Lott said...

Dear Mike:

Your argument isn't with me, it is with OSHA and the courts, such as the Federal court in Oklahoma. Thanks very much for writing.

8/24/2008 1:24 PM  
Anonymous Anonymous said...

I'm an NRA life member, but I strongly disagree with this new law.

I understand, and accept, the concept that your vehicle is an extension of your private property, but no more so than your clothes.

If an employer cannot dictate what is contained within your vehicle, what about within your pockets or purses?

What is being suggested by such laws is that my private property, and its ability to contain other objects, somehow 'pierces' anothers' private property rights, creating an 'exclusion zone' over which they have no authority.

It is essentially correct, yet it is being misapplied here.

What an employer is doing when they ban guns from their property, is creating a set of 'terms and conditions' for admission to their property. You either accept them, and enter freely, or reject them, and go away.

Of course, your vehicle *is* your private property, so is your purse, and if you choose to be deceptive and stash a gun within them, the employer has no right to search you. However, if your deception should be discovered, they should be at liberty to fire you for such a breach.

-dk

8/25/2008 10:09 AM  
Anonymous Anonymous said...

Dr. Lott: I have long wondered why employers do not recognize that the background investigations involved in obtaining a CCW permit pretty much guarantee that no "bad apples" get into their workforce. Here in Georgia, the fee is $35.00, the CCW permit is proof of good character. Sam Wilson

8/25/2008 10:12 AM  

Post a Comment

Links to this post:

Create a Link

<< Home