Constitutional Right to Install Bulletproof Glass?

Philadelphia's planned restrictions on bulletproof glass would violate the Pennsylvania Bill of Rights -- "All men ... have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, [and] of ... protecting property ...."

|The Volokh Conspiracy |

The opening section of the Pennsylvania Constitution (first enacted in 1776, but reenacted since) begins thus:

That the general, great and essential principles of liberty and free government may be recognized and unalterably established, WE DECLARE THAT —

§ 1. Inherent rights of mankind.

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

And Pennsylvania courts have taken this seriously; a long line of cases, going from 1917 to 2000 (see p. 408 of this article), recognizes that this is a serious constraint on government power—for instance, landowners have the right to kill wild animals that are threatening crops, even despite state game laws that bar such killing.

But despite this, Philadelphia seems to be trying to restrict one important form of defending life and liberty (and protecting property): bulletproof barriers that help shield employees from robbers or other attackers.

The just-enacted Bill 170963 would have originally banned them outright in eating and drinking establishments that seat at least 30 customers. (These restaurants are also the ones that, under Pennsylvania law, can get licenses to serve beer, though not all such large restaurants do sell beer; the law seems aimed at "beer & delis," but apparently some local KFCs and Popeyes also have bulletproof barriers.) The bill was ultimately amended to call on the city's Department of Licenses and Inspections to "promulgate regulations to provide for the use or removal" of such barriers—but that Department seems to support broadly restricting them them; it thus seems likely that the regulations will provide for more removal than use.

The original motivation for the ban was apparently that such barriers were seen by some as "an indignity" (perhaps with a racial dimension, since many of the customers of the stores are black and many of the owners and employees are Asian). The Department has also argued that the presence of a barrier keeps the stores from being "places of public assembly" with "a social purpose," and thus should lead them to be zoned differently; it has also argued that customers might be feel less secure in stores where there's a physical divide between them and employees, presumably because the employees would be less likely to help the customers. (The exact theory isn't quite clear to me here, but you can listen for yourself, starting at 5:30 in this video.)

But I don't see how that can be enough to justify preventing store owners from defending themselves and their employees. If you can kill an animal to protect your property, surely you should be able to have a passive, physically harmless barrier to protect your bodily safety.

A reader asked whether the Second Amendment, which D.C. v. Heller suggested applies to "armour of defence" as well as "[w]eapons of offence," might bar any regulations that ban bulletproof glass; I think it might—but the Pennsylvania right to defend life strikes me as an even clearer guarantee.

By the way, these right-to-defend-life/liberty/property provisions are rarely noticed by academics, but have been successfully used in cases throughout the country, in the 21 states that have them in their Bills of Rights. Indeed, even some states that lack such express provisions have relied on precedents from other states that do have the provisions, and thus view the right as constitutionally protected. To be sure, the right isn't unlimited, and likely doesn't invalidate longstanding restrictions on (for instance) the use of deadly force to defend property, or on the use of deadly force to defend life when such use doesn't seem necessary. (I doubt, for instance, that they would do much in debates over the duty to retreat.) But it does have substantial force, and I think they should indeed be used to invalidate bans on defensive barriers.

(For whatever it's worth, OSHA recommends that restaurants "[i]ncrease workplace security," especially for young workers, by "installing … bullet-resistant barriers where appropriate"; but as best I can tell, this wouldn't by itself preempt contrary city ordinances, because it's only a recommendation and not a requirement, and the OSHA "general duty" clause wouldn't preempt the city ordinance, either, see Ramsey Winch, Inc. v. Henry (10th Cir. 2009).)

NEXT: Brickbat: Justified

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  1. So your right to not be shot is of less importance than your customers’ right to (perhaps) not feel demeaned by your actions to prevent being shot, which you consider justified by the history of shootings in your neighborhood.

    1. Or the reverse: how does this affect actions taken to improve customer safety, or general safety? Is the presence of locked doors when closed, or security cameras, or a closed cash register, or a locked safe, or indeed the mere presence of walls and a roof, an indignity which encourages racism and reduces the feeling of insecurity?

      1. Exactly this. What an astounding precedent it would set.

        1. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

          This is what I do…

      2. Indeed, this seems entirely arbitrary based on one perception.

      3. Please, don’t encourage the thinkers in race-reflective academia. We’ll be back in equal sized stone huts in no time.

    2. Anyone whi is demeaned by this needs to be demeaned.

  2. If the last guy shot at the cook after lunch, I’m not sure I want the food.

  3. How about a compromise. We’ll give up the bulletproof glass, but we’ll hold a loaded shotgun at all times. How’s THAT grab ya?


    You wanna not be ‘insulted’ because of the color of your skin, do something about all the gangsta muthufuckers who look like you.

    1. Look at this internet tough guy spitting on the internet floor. You’re so hard.

    2. Setting aside the racist rhetoric, the underlying argument was indeed used by opponents of the bill: if you ban bulletproof glass, you will incentivize store owners to be armed for self-defense instead.

    3. I get that this isn’t the Washington Post. And I’m not surprised that the comments here are going to be a little crude from time to time. But is this really what we’re going to have to deal with?

      I always thought the comments were a strong point for the blog. But we’re a half-dozen posts in, and there’s already several ignorant, blatantly racist comments being posted. If that’s what we can expect, count me out.

      1. /shrug

        Trolls will be trolls, try not to be so fragile, you’ll live a happier life.

        1. It’s not a matter of fragility; it’s a matter of me reading this at work and preferring people not by chance seeing a bunch of blatantly racist comments on my screen.

          That and the comment being so much less useful if I have to sort through a bunch of pointless drivel in order to find things actually worthwhile to read.

          1. It’s not racist to recognize the truth: these places are in black neighborhoods, with high crime rates, and face real potential danger. Do you somehow deny that? Or is it racist to simply state the truth?

    4. Claymores are the solution. See above. Or below. I’m not sure where this post will end up.

    5. YUP.

  4. Philadelphia really is the worst place in America. I am talking about people here, if you didn’t account for the locals Baltimore might be worse, but imagine Baltimore inhabited by Philadelphians.

    1. Go Iggles

    2. Well, we are talking about the city that infamously booed Santa Claus,

      1. He was a young, drunk (probably got his beer at a deli) guy from the stands, rather than the officially endorsed true Santa, who didn’t show up because it snowed, so he wasn’t a real Santa and the team sucked that decade anyway.

        Oh, and fly Iggles fly.

      2. Damn, I’m glad that I work and live in Taiwan. I was Santa at a Christmas party tonight and only had to endure a few students shouting that I was their teacher and not the real Santa.

    3. But I thought everyone was always sunny in Philadelphia?

  5. But where else a brotha gonna get some fried chicken and 40’s?

    1. Food truck? Oh wait…

    2. Fuck that shit. Cheesesteaks uber alles.

  6. I’ve argued before that, if the Second Amendment gives a right to self-defense, it’s only in its penumbras and emanations (tongue mostly in cheek here). Certainly, there’s nothing in the United States Constitution to state it and, especially, not in the Second Amendment. But Pennsylvania is definitely different. It clearly is an enumerated Constitutional right. I wonder exactly how far it could be interpreted, but this doesn’t seem like an extreme example. It also seems like bad policy, which doesn’t help.

    1. That Second Article of Ammendment does not give anyone anything.
      It DOES, however, clearly state that since “the security of a free state” is the task of the individual members of “the people”, and for this reason the declares that those people have the right to arms, and that that right shall not be infringed.

      But even the Declaration, a sort of Preamble to the Constitution of the US, declares that among the rights that cannot br meddled with is the persuit of happiness. I don’t know about any of you lot but for myself, I tend to get unhappy when someone uses a gun,baseball bat, knife, broken bottle in my presense to threaten or intimidate someone else, and downright FURIOUS when someone uses anything as a weapon to try and force ME to do as they demand….. so, yes, that bulletproof glass DOES aid my peace and happiness, and thus to deny its use is to deny me MY happiness.

      1. The 2A protects a God-given right, self-preservation, in regards to possession of firearms or a passive (or active) defense against those who want to deprive you of life, liberty, and pursuit of happiness. I imagine that quite a few Mummers are packing.

  7. yes, and also bulletproof jackets as well. I believe CA has looked at banning them

    1. bullet proof jackets are banned in CA for anyone but the police.

      1. Flak vests are not bulletproof. Someone should use that in court.

  8. Jackets are not bullet proof, only bullet resistant, as is architectural glass. Back in Revolutionary times, heavy woolen and leather clothing provided a significant degree of bullet and shrapnel resistance, given the low velocity projectiles of the times. By WWI the premier high tensile strength fiber for bullet protection was still silk, which when woven tightly and densely enough rivals Kevlar. That was too pricey for most people.

    Modern synthetic fibers change this equation, as do lightweight ceramic plates. It would be interesting to see how California law addresses such technological progress. I suspect that the law becomes fashion-specific. If something “looks like” a bulletproof vest, it is illegal. If it looks like a fancy padded jacket, maybe not. This mirrors the debate on modern sporting rifles, BTW, and how to illegalize them.

    1. “I know (self defense) porn when I see it”

  9. The “indignity” is the fact that blacks are the most violent and criminal race in America. It is “an indignity” to their own kind.

  10. You know what also keeps stores from being a “place of public assembly” with a “social purpose”? Flying bullets and corpses of employees and proprietors.

    1. Not to mention hordes of blue-suited monkeys swarming about picking up shell casings, spent bullets, measuring everything they can, drawing chal mark outlines on the floor, interrogating hungry people trying to wolf down their meagre fare for the mid day meal……….. oh, and almost forgot, all of the twenty seven color glossy photographs with the circles and arrows and a paragraph on the back of each one explaining what each one was……

      Such a circus side show can tend to spoil one’s entire afternoon. AND one’s appetite.

    2. +1 ricochet

  11. Constitutional right? hmm. Building codes strictly limit what can and cannot be used/constructed/etc in a wide range of buildings and businesses. not sure why all of a sudden the restriction of a barrier is a constitutional offense.
    Perhaps that argument should have been made decades ago before we were inundated with very restrictive building codes.

    1. MikeP2: Most aspects of building codes don’t materially interfere with people’s right to defend life or liberty. But when a rule specifically bars an important self-protection measure (indeed, one recommended as a self-protection measure by OSHA), then the right to defend life and liberty comes into play, no?

      1. I think is a stretch. Building codes care little for defense of life or liberty, codes require window square footage, inhibiting privscy and protection. Try putting bars on windows or doors in many municipalities. Try building walls on your property boundaries….the kind of walls commonly found across the world.

        Building codes are a direct assault in individual liberty. This instance is the least of their intrusiveness.

        1. That’s a lot of ignorance in just a few sentences. Just keep in mind the truism “All Building codes are written in blood.”

          Building codes are reactive, not proactive, and are put in place more often than not following some construction-related fatality. This has been the case since Hammurabi.

          If polled, I think you’d find most people are fine with regulations that help prevent buildings from falling on their heads. Not everybody, of course, but most folk.

    2. “Building codes strictly limit what can and cannot be used/constructed/etc in a wide range of buildings and businesses”

      Not really, and the restrictions that are in place are generally there to promote public safety, not retard it.

      1. You obviously have not dealt with building codes. Kindly educate yourself before commenting.

  12. The only point to this bill is to drive out Korean owned businesses.

    1. If you watch the Philly council meeting video linked to this article, you’ll see that when the member attacking this measure speaks, all the Asian folks in the audience are nodding.

    2. In fact, closing the stores is the main point (not necessarily Korean, but the deli-type stores in general). Apparently, one justification is that the shops cater to those who would purchase a single can of beer and that these shops look the other way on drug deals; additionally, that customers aren’t there to purchase any food (and, yes, this all relates to PA’s arcane liquor laws, where a “deli” can sell cans and six packs, but a non-food-focused store cannot). This councilperson, who has been trying to get these stores closed for years, if I recall, is now arguing that if the current owners close down/sell, new, more desirable businesses will flower and be more positive for the neighborhood. I think that works on a “close store + ?? = profit” theory.

    3. Pakis and Afghans are ready to move in.

  13. Well, bulletproof glass is an unfair infringement on the rights of criminals to pursue their chosen careers.

  14. I think that with a decently intelligent lawyer that laws that establish a “duty to retreat would be found unconstitutional.

    Retreat? A duty of Americans of any stripe? Pretty much a concept that would boggle the mind of the founders.
    (Founders- politically correct way to say founding fathers…)

    1. The duty to retreat debate is actually as old as the Republic, and Framing-era views on it were mixed and complicated; I’ve just posted a follow-up about that, see…..unding-era .

      1. In PA, shoot him when he’s climbing in the window. The gov’t is cool with that.

  15. Is it the see-thru nature of the barriers that offends?

    Can the businesses install opaque walls with sally ports and video cameras?

    Are solid walls allowed or will this lead to all new construction being of canvas or paper?

  16. I’m pretty sure that PA’s drug laws violate that first section of their constitution.

  17. I am at a total loss why anyone would attempt to prevent the use of bullet resistant barriers. To my knowledge, no one has ever died or been injured by the use.

  18. I remember a bulletproof glass-protected gas station in Philly in an area where they use steel plates to board windows. I thought that the clerk really had balls to work there, even though she was a black woman and it was daytime. I was driving an old Caddy and look vaguely Hispanic, so I fit right in with the few people out and about, and had no fear of driving around in those areas (in the daytime). Bulletproof glass? I thought that the employer should ring the place with claymores.

  19. Absolutely people should be able to do this. It shouldn’t even be a question.

  20. The main reason for banning smoking indoors was the danger from secondhand smoke. Kind of ironic that bulletproof glass will be removed when the reason for the glass was the safety of employees.

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