On gun rights and property rights

On gun rights and property rights
Mark Humphrey

The concept of one’s rights shouldn’t be a terribly difficult thing to understand. However, it seems that in this day and age, few people actually do understand them.


However, there are times when one’s right to do this counters with someone else’s right to do something else. It doesn’t happen often, of course, but it can happen.

Ilya Somin, writing at the Washington Post, has some thoughts about one of those cases.

Iowa is the latest state to consider prohibiting private property owners from banning guns on land they own. Sometimes called “parking-lot laws” or “gun-at-work laws,” many such statutes tell property owners they can’t prevent people from storing their guns in a locked car while they work their shift (or attend church or seek help at a nonprofit counseling center). In some cases, the laws allow them to bring the guns inside. Iowa would become the 25th state with such a law….

These laws do not defend constitutional rights. I support strong Second Amendment rights to keep and bear arms, but the amendment constrains only the government. It does not require private individuals to own guns or allow them on their land — just as the First Amendment does not require private owners to allow speech they disapprove of on their property. To mandate that Americans accept guns on their property represents an unacceptable infringement of their property rights, and also violates the Fifth Amendment of the Constitution….

In addition to undermining property rights, many mandatory gun-access laws may also violate the Takings Clause of the Fifth Amendment. That argument leans on last year’s 6-3 ruling in Cedar Point Nursery v. Hassid — the one that concluded California could not let union organizers have temporary access to agricultural businesses…

in Cedar Point, the court held that “a physical appropriation is a taking whether it is permanent or temporary.” As Duke Law School professor Joseph Blocher has pointed out, in the case of gun-at-work laws — like union-organizer regulation — the government requires property owners to accept occupation of their land by people (armed gun owners) the owners would prefer to keep out…


Now, this is probably a very unpopular opinion, but Somin is right, at least as far as property rights go. (I honestly haven’t thought about the Takings Clause angle here.)

If someone has a property and they don’t want guns on that property, then they have the right to make that determination.

Granted, I also think they should be responsible for what happens if a disarmed person is shot on that property–it was their policy that put them at risk in the first place–but it still should be their call.

And really, that’s not a bad thing for the gun community. After all, if a business can bar guns and chooses to do so, then they’ve made it clear they don’t want your money. They’d rather you and other gun owners–even those who don’t carry for whatever reason–go and spend your hard-earned dollars with their competitors.

I’m all for this brand of self-selection.

But beyond that, it’s actually right from a rights standpoint.

Are you required to allow someone to sit in your living room and declare you all kinds of awful because you own guns? They’ll do it on social media, which is fine, but now they’re sitting on your sofa telling you all of this. Are you required, by law, to sit there and take it?

No. It’s your property and you’re not required to do any such thing. They have a right to free speech, but your property rights trump their right to say whatever they want in this instance. They can go outside and stand on the public road and continue saying whatever, but you don’t have to tolerate it there in your home.


So, in that same vein, I agree with Somin that businesses shouldn’t be forced to accept guns on their property.

Yet again, though, allowing them to say, “no guns” to gun owners really only benefits us. Gun owners will have a better idea of where not to spend their money.

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