Article on "Gun Rights, Property Rights, and Takings"

My Duke Center for Firearms Law piece on why laws forcing private property owners to allow guns on their premises violate property rights and often qualify as takings requiring compensation under the Fifth Amendment.

(Jiri Hera / Dreamstime.com)

 

The Duke Center for Firearms Law recently published my new essay on "Guns, Property Rights, and Takings." My piece is part of a symposium on "Privatizing the Gun Debate." Several additional contributions will be posted in the near future.

Here are some excerpts from my essay:

In recent years, some two dozen states have enacted laws requiring private property owners to allow employees, customers, and others to bring in guns or store them on their land and buildings. Variously known as "parking-lot laws" and "gun-at-work" laws, such regulations are a serious violation of property rights. In many cases, they may also qualify as a taking requiring compensation under the Supreme Court's 2021 ruling in Cedar Point Nursery v. Hassid.

I am a supporter of strong Second Amendment rights to keep and bear arms…. But laws forcing unwilling private property owners to accept the presence of guns do nothing to protect the Second Amendment, undermine individual autonomy, and – at least in many cases – are themselves unconstitutional….

[T]hese laws are often cloaked in the rhetoric of the Second Amendment. But, in fact, they do nothing to protect Second Amendment rights. Like most other constitutional rights, the Second Amendment constrains only the government. It does not require private individuals to possess guns or to accept their presence on their land. In that respect, it is similar to other provisions of the Bill of Rights. For example, the First Amendment does not require private owners to allow on their land every kind of speech protected against censorship by the state….

There are multiple good reasons to allow private owners to bar guns from their land, if they so choose. Those reasons dovetail with standard general accounts of the advantages of private property.

Perhaps the most fundamental of these is the link between private property rights and individual autonomy. One of the main advantages of being a property owner is the right to use your land as you see fit, even if other members of the community don't understand your reasons, or even disagree with them. Some people object to the presence of guns on their land for aesthetic or moral reasons (e.g. because they are staunch adherents of a philosophy of nonviolence). Such autonomy deserves respect, even if we disagree….

A closely related rationale for respecting property rights in this context is the danger of imposing a one-size-fits-all rule on a wide range of owners with very different situations and needs. Even owners who do not object to the presence of guns on principle may have good reasons for barring them in some situations….

It is also important to recognize that allowing owners to bar guns enhances not only the liberty of the owners themselves, but also that of customers and clients who, for whatever reason, prefer to patronize gun-free spaces. If a state law requires all private owners (or even only all businesses or employers) to allow the presence of guns, such gun-free options will be eliminated for everyone – owner and customer alike….

Sadly, the imposition of mandatory gun-access laws on property owners is part of a more general turn against private property rights by many conservatives, in recent years. Other examples of the same tendency include widespread right-wing support for the use of eminent domain to build Trump's border wall, advocacy of laws forcing social media firms to host speech they object to, and legislation barring private owners from imposing Covid-19 vaccination requirements as a condition of employment or entry on their land….

The political left, of course, has its own longstanding dubious anti-property tendencies. Among other things, many support "NIMBY" zoning restrictions, and harmful uses of eminent domain….. But that in no way excuses the growing bad behavior of the right….

In addition to unjustly undermining property, many mandatory gun-access laws also violate the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" whenever it takes private property rights.

Before last year's ruling in the Cedar Point case, conventional wisdom assumed that, under Supreme Court precedent, only a "permanent physical occupation" of property qualifies as a per se taking automatically requiring compensation under the Takings Clause….

Cedar Point involved a challenge to a California law requiring agricultural growers to give union organizers access to their property for three hours per day, 120 days per year.

In a 6-3 decision…., the Supreme Court struck down the California law, and established the rule that "a physical appropriation is a taking whether it is permanent or temporary." Thus, the California law qualifies as a taking, even though the union organizers were given access to growers' land "only" 360 hours per year….

As Joseph Blocher explains in an insightful September 2021 post at the Duke Center for Firearms blog, the Court's reasoning in Cedar Point readily applies to parking-lot and gun-at-work laws. Here too, the government requires property owners to accept the presence of people (armed gun owners) and objects (guns themselves) the owners would prefer to keep out. In most cases, the presence of the guns and gun owners is only temporary (limited to working hours). But, under Cedar Point, that distinction no longer matters.

Indeed, depending on the hours the business or other regulated enterprise keeps, the amount of unwanted intrusion required by gun-access laws might be considerably greater than that at issue in the Cedar Point case…..

Even if property owners succeed in proving that parking-lot laws are takings, it is not clear how much compensation they would get…..

But even if property owners get only modest compensation, it might still be enough to deter state and local governments from adopting and enforcing parking-lot laws and other similar regulations. Even if liability is small on a per-hour basis, the costs may well mount up, over time, as courts assess liability for many thousands of hours of mandated gun storage and access each year. That is especially likely if the law does not limit the number of guns that must be accommodated.

Comments

[Michael P]

What, no mention of the need for guns to be able to use foot voting? We should recognize their freedom of movement, including across the property of gun-grabbers who want to disarm employees and guests under force of law without assuming the liability for the consequences!

[James Pollock]

"What, no mention of the need for guns to be able to use foot voting? We should recognize their freedom of movement, including across the property of gun-grabbers"

Those gun-grabbers are property owners. If you don't like their rules for entering on or remaining on their property, stay the hell off it. That's foot voting.

[DaivdBehar]

Public accommodations are servants of government and should be subjected to the legal doctrines that apply.

[mulched]

There's an epidemic of laws requiring gun access on private property, but your big example is Cedar Point?

Maybe there's a long list of such laws in the article, but since you couldn't bother to cite even one here, I'm not going to go chasing after it.

[BillyG]

I agree with Somin. Private property owners should be able to bar patrons from bringing guns on to their property. This is conditioned on owners accepting complete and total responsibility & liability for their patrons safety while on their property.

[Bruce Hayden]

Either landlords and other property owners need to take financial responsibility for any harms likely caused by their denial of gun rights for self defense, or should allow their renters and licensees to be armed for their own protection. Can’t have it both ways but Simon, being the in-house liberal here, no doubt believes that he should be able to.

As for a taking - what are your actual, provable, damages, if a law abiding person enters their property armed? Hard to see any.

[Old Smokin' Egg]

I'm a Cuban-American who runs a coffee shop in a college town. Because of my family's history, I will not allow someone to enter the shop if he's wearing a Che Guevara T-shirt.

Do I have the right to object if my very blue state passes a law requiring me to admit such people? Proponents of the law argue that I'm denying people their First Amendment right to free speech; and, if I object that the law amounts to a taking of my property, ask what are my actual, provable damages if a law-abiding person enters my property in such a T-shirt.

[questioner7]

"Proponents of the law argue that I'm denying people their First Amendment right to free speech" -- how could they? First Amendment by its terms only restricts government actors, which you are not.

[Sarcastr0]

Shirt-based service refusal also doesn't seem like it'd fall afoul of most public accommodation laws.
Though maybe if one protects political views...?

[James Pollock]

""Proponents of the law argue that I'm denying people their First Amendment right to free speech" -- how could they? First Amendment by its terms only restricts government actors, which you are not."

There's no shortage of people who don't understand the first amendment, and that doesn't stop them from having strong opinions on the topic.

[James Pollock]

"Either landlords and other property owners need to take financial responsibility for any harms likely caused by their denial of gun rights for self defense, or should allow their renters and licensees to be armed for their own protection. "

Or, the poor insecure souls who can't feel secure unless they're strapped should rent from other owners, who're willing to accommodate their insecurities.

[I Callahan]

You're an entirely unserious person. How many people like you do we have in courtrooms across the country?

[James Pollock]

" How many people like you do we have in courtrooms across the country?"

I haven't had to go to court for well over a decade. My daughter reached majority, and so my ex-wife stopped trying to re-open the custody issue of our divorce.

So, there are 0 people like me in ocurtrooms across the country.

[Longtobefree]

We need to make a clear distinction that private property owners are in two groups; truly private property, and 'private' property open to the public, a distinction the article blurs somewhat.
In the first group, there should not be any issue, because you should only enter truly private property at the invitation of the owner, and the owner will not invite you if you are armed. No question there.
However, on 'private' property open to the public, or at least a large group such as employees, there becomes a balance between rights.
The article takes an approach, already discarded, that the property rights always override the constitutional rights of those on the property who are using it for the intended purpose; as an employee, as a customer, etc.
Free speech cases and discrimination cases have gone both ways on this, varying by specific conditions.
This will come down to a court case where someone is attacked while disarmed, and the victim, or their estate, sues the property owner for not allowing a constitutional right on their property.

[Stephen Lathrop]

This will come down to a court case where someone is attacked while disarmed, and the victim, or their estate, sues the property owner for not allowing a constitutional right on their property.

On a presumption that having a gun would have made a perilous situation better, instead of worse? In court, do you get to impose gun-culture presumptions as if they were facts? The 2A tells us nothing about whether adding to gun prevalence on private property increases safety, increases danger, or doesn't matter one way or the other.

[Sebastian Cremmington]

Last year a mass shooting event happened in a gun store and the policy of the gun store was no loaded guns in the store…do you think the gun store owners were supporters of the 2A??

[James Pollock]

"do you think the gun store owners were supporters of the 2A??"

Right up until the shooting started, probably.

[James Pollock]

"However, on 'private' property open to the public, or at least a large group such as employees, there becomes a balance between rights."

You can speak to the owner of the property and make a case that you, specifically, should be allowed to be armed on the property, but there isn't a balance between rights because you don't have a right to go onto private property, even if it's a business that is "open to the public".
If your boss tells you to leave your penis extension at home, because the policy of your employer is that employees are not armed, you can choose to ignore the directive but, having been warned that employees are not to be armed, you have complaint if you become not-an-employee as a result.
There are absolutely some businesses where an armed presence makes sense, but there are also some others where it does not, and second-guessing the management decision of which category a business belongs to is not a sign of a good employee.

[Nisiiko]

What if your boss tells you to straighten your nappy hair before coming to work? I assume you're okay with that?

[James Pollock]

When the boss tells me to straighten my nappy hair, he's going to fire me for laughing at him in front of the staff.

[David Nieporent]

However, on 'private' property open to the public, or at least a large group such as employees, there becomes a balance between rights.
The article takes an approach, already discarded, that the property rights always override the constitutional rights of those on the property who are using it for the intended purpose; as an employee, as a customer, etc.

No, this is wrong. Constitutional rights are limitations on government. There isn't any "constitutional right" to have a gun on someone else's property against the will of that property owner.

There's only one right, and nothing to balance.

[Rossami]

So to be clear, your view is that all public accommodation laws are unconstitutional, correct? There isn't any "constitutional right" to transact business with any particular person or company either.
So hotel owners and landlords should be allowed to refuse to rent to blacks? Cake bakers should be allowed to refuse to bake cakes for gay marriages? (Add whatever additional examples you can think of here.)

There is a moral consistency with that approach - but it seems to be foreclosed by rather a lot of precedent saying that public accommodation laws are socially and constitutionally acceptable. Requiring employers to allow staff to leave their weapons in their own locked cars in the parking lot is a lot less intrusive against the property owner's rights than the examples above. How is this public accommodation law suddenly different?

[David Nieporent]

So to be clear, your view is that all public accommodation laws are unconstitutional, correct?

That would not follow; assuming for the sake of argument that such laws constitute regulatory takings, the constitution would require compensation, not invalidation of the laws.

I don't know that the constitutional framework is the right way to look at it, but as a libertarian, I do think public accommodations laws, no matter how well-intentioned, are an infringement on individual liberty. They might have been necessary in 1964, but even then they should have been limited. They definitely should not have been subsequently expanded to cover whatever interest group could lobby for them thereafter. (While federal law only covers a few specific categories, some jurisdictions have enacted a lengthy list of protected classes.)

[Brett Bellmore]

That's my view: Demand people be defenseless, you assume responsibility for them. But, given that, you're absolutely entitled to bar people from your property.

Cedar Point is a bad basis for this, because the question was whether the people could enter, not what they carried with them. So it really doesn't go to the question of barring guns.

[Sebastian Cremmington]

The 1A clearly states “Congress shall make no law…”. The other amendments in the BoR are written in such a way that the institution they are limiting is fairly obvious. The 2A doesn’t reference Congress and it was drafted as an individual right…so why should the RKBA be limited to infringement by governments??

[James Pollock]

It's almost like when you read the second amendment, the words "well-regulated" aren't even there.

[I Callahan]

It's almost like when you read the second amendment, you think "well-regulated" has ANYTHING to do with the meaning of that in today's words. Hint: it was the total opposite. Well-regulated meant as many regular people as possible.

[Sebastian Cremmington]

Exactly, it simply means “trained to arms” and since the 2A concerns the unorganized militia it has nothing to do with any government. So from my perspective individuals aren’t allowed to infringe the 2A just like individuals that attempt a citizens arrest can be arrested for false imprisonment or kidnapping.

[James Pollock]

" from my perspective individuals aren’t allowed to infringe the 2A"

So your hypothetical "good guy with a gun" is breaking the law when he disarms the bad guy?

[James Pollock]

" Well-regulated meant as many regular people as possible."

So, colonia militias ate their bran flakes for breakfast?

[Mike45]

The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive, and doesn't give the state any power to restrict individually owned arms.

The First amendment is another multi-faceted amendment affirming several rights of "the people".. If the first was interpreted as restrictive as the 2nd the rights to speech, press, and assembly would only apply to religious institutions just as the government tries to use the militia clause to regulate the right of "the people" to keep and bear arms.
This is reinforced by the 10th amendment. The Bill of Rights was passed as an interlocking package.

The tenth amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people."

[James Pollock]

The Founders didn't like the idea of the government keeping a standing army, because they thought having one was likely to lead to using it, say, against the people. So they tried to set up the Constitution to keep the Congress from keeping a standing army. But, there were potentially hostile European powers, starting with the freshly-ejected British, who might want to swoop in on a country with no army, and the savage red men hadn't been pacified yet, so the Founders said "I know, instead of having a standing army, we'll just make sure the general population can be turned into an army if an attack comes. That's why there is a second amendment AND why it has its own preamble.

Some (otherwise nice enough, I'm sure) people want to treat the second amendment as if it reads "the right of anyone to have and use any damn weapon he wants shall not be infringed.", but it doesn't actually say that.

[James Pollock]

"That's my view: Demand people be defenseless, you assume responsibility for them."

It's so sad that if you can't shoot somebody, you are so feeble you're defenseless.

[I Callahan]

If they're trying to kill me, then yes, I'm defenseless. This is the problem you gun-grabbers always purposely overlook: the other guy isn't following anyone's rules.

[Sebastian Cremmington]

In mass shooting situations the shooter is generally suicidal or mentally deranged and so guns aren’t a deterrent. In fact two of America’s greatest warriors were killed at a gun range while armed by a deranged man.

[I Callahan]

Guns most certainly are deterrents. If a "good guy" with a gun kills the mass shooter before he mass-shoots, then he deterred some deaths.

[Sebastian Cremmington]

No, mass shooters start shooting knowing they will die. Mass shooters have targeted armed cops and armed civilians and even gun stores.

[Nisiiko]

Yes, and often the presence of a counter attack causes them to end their own attack early, mainly by suicide.

[Sebastian Cremmington]

No, they just want to kill as many as they can before dying.

[James Pollock]

" often the presence of a counter attack causes them to end their own attack early, mainly by suicide."

By often, do you mean the 0 out of 0 times you cited examples of? Way, way back, when school shootings in the news was a new-ish thing, there was a mass shooting in Thurston High School in Eugene, OR. The shooter, Kip Kinkel, was apprehended after being tackled by unarmed students while reloading. No "good guy with a gun" in the whole story.

[Nisiiko]

Read about the Clackamas mall shooting before you post any more BS.

[James Pollock]

The Clackamas mall shooting involved a "good guy with a gun" who had exactly diddly-squat to do with stopping the bad guy. There's no sign that the bad guy even knew the "good guy" was present.

[James Pollock]

"Read about the Clackamas mall shooting before you post any more BS."

Because you need more evidence that you're full of shit?

[James Pollock]

"Guns most certainly are deterrents."

This is why nobody in the Iraq invasion was ever shot. They all had guns, and this deterred the natives from shooting at them. And there has never been a mass shooting in any location where people were armed (unless you count Fort Hood, Texas as a place where people had weapons and training in how to use them.)

A gun can be a deterrent... in some cases. But not universally, every time.

[James Pollock]

"If a "good guy" with a gun kills the mass shooter before he mass-shoots, then he deterred some deaths."

On the other hand, if a "good guy with a gun" hears the shots, unholsters his weapon but can't tell who the bad guy(s) with a gun is, so he just starts shooting at anybody who might be a bad guy, he's greatly increased the body count caused by mass shooting. the more people doing the shooting, the more likely it is that an innocent person gets in front of a bullet.

[Nisiiko]

Has this ever happened, even once?

[James Pollock]

Has an innocent person ever been caught in a crossfire? Of course not, what a silly idea.

[James Pollock]

" This is the problem you gun-grabbers always purposely overlook"

People like me, who say that responsible adults should own whatever weapon they can afford and handle safely and responsibly.

Please continue your ranting.

[Brett Bellmore]

I'm an arthritic 63 year old with a wrecked shoulder. It hurts just to lift a coffee cup! You think I'm going to go all Bruce Lee on some 20 something dude?

[James Pollock]

No, I think you're going to whip out your piece and start blazing away.

[James Pollock]

and then complain about how oppressed you are if they arrest you afterward.

[DonP]

Sounds like that would fall under "Disparity of Force" justification to me.

[James Pollock]

"I had a gun and he didn't. So I shot him."

[KevinP]

I agree with this completely.

Private property owner and you want to ban citizens from carrying even concealed guns on your property? Put up a clear sign to inform everyone of your rule.

But if any visitor or employee is injured or killed by a criminal when they could reasonably have defended themselves with a gun, then you are fully liable for their injuries and death.

[Dan Schiavetta]

People here are seriously arguing that in a place with no guns, having a gun is necessary to protect from harm.

[dwb68]

lmao having a "No Guns" sign does not mean that there are no guns. Heck, having metal detectors does not keep guns out of jails.

[WuzYoungOnceToo]

People here are seriously arguing that in a place with no guns

You've said a great many pants-on-head stupid things here, but the above might well be a personal best in that category for you.

[James Pollock]

"People here are seriously arguing that in a place with no guns, having a gun is necessary to protect from harm."

There's been serious buy-in to the Hollywood notion that a good guy with a gun will always beat a bad guy with one. Along with some people convincing themselves that they are the good guy, so whatever they do is "good". In the movies, the clever good guy figures out that there's some evil afoot, and then takes steps to eliminate the evil by eliminating the bad guys. Point out that this is not how reality works, and they get all crybaby.

If those mean ol' property-owners don't want you strapped on their property, stay home and nobody can complain about how you keep stroking your firearm collection, feeling safe and secure from any threat (except for the ever-present threat that the gun-grabbers will be flying their black helicopters overhead).

[James Pollock]

"People here are seriously arguing that in a place with no guns, having a gun is necessary to protect from harm."

No, they're saying that if they don't have a gun, they have absolutely no way to defend themselves. They're completely defenseless. And if you point out how stupid that claim is, how it doesn't comport with the pro-firearm lobby's claims that "guns are not dangerous. only people are dangerous", they get whiny about it.

[James Pollock]

" if any visitor or employee is injured or killed by a criminal when they could reasonably have defended themselves with a gun, then you are fully liable for their injuries and death."

The corollary also true? If a property owner allows guns, they're responsible and fully liable for any injury caused by a gun? No matter whose?

[Nisiiko]

That should apply to government buildings, like post offices as well. We need to eliminate sovereign immunity entirely.

[ducksalad]

Man, lawyers sure creating abundant liability.

What happened to the idea that "full liability" for an unlawful shooting falls on... the shooter.

[BillyG]

I'm an Engineer, not a Lawyer. If someone increases a risk, they're liable for any adverse outcome. If the owner creates a soft target, they're liable for increasing the risk beyond normal. Why should they get off scott free for a situation they aggravated?

[Nisiiko]

Exactly. Mall owners have been sued time and time again for poor lighting, poor security, and so on in parking garages. I don't see a difference.

[James Pollock]

The thing is, you have a choice... you can leave your weapon at home, or not, and the consequences of that choice are on you. If a property owner says "you can't have a gun on my property", they didn't take away your gun, they presented you with a choice, leave your weapon at home, or stay off their property. You choose, and the consequences of that choice are on you.

[Nisiiko]

What if the property owner says "You can't have a burqa on my property?" Are you okay with that? If not, why not?

[James Pollock]

I'm 100% fine with that, because I don't have any burqas. Is it a problem for you, because you like cross-dressing but don't want to appear immodest?

[jimc5499]

"This is conditioned on owners accepting complete and total responsibility & liability for their patrons safety while on their property."
In the case of an employer that responsibility should extend from the employee's residence and back.
I have no problem with not being able to bring a weapon into a place. I do have a problem with not being allowed to lock my weapon in my vehicle while I'm there. I've worked for places that were in not so nice neighborhoods. One place even had bullet holes in the building. I complied with my employer's policies of my not bringing a weapon into the building. I did NOT comply with their policy of NOT having a weapon in my vehicle. They were responsible for my security while I was there, but, they were NOT responsible for my security while I was getting there or leaving.

[James Pollock]

Don't like your employer's rule? Don't part on their property with a weapon in the car. Or just quit the job, you didn't want to work there, anyway.

[Nisiiko]

So I gather you're okay with an employer prohibiting the practice of Islam or Judaism? Don't like it? Quit.

[James Pollock]

You gather poorly, as if there were something dysfunctional in your central nervous system. If a pork packager hires someone to put pork products into cans, and then the guy says "the thing is, I can't touch pork because I'm a Muslim or Judaism" then, yeah, that guy should quit.

[Ridgeway]

If Somin's post about emigration restrictions during wartime was Example #1 of why libertarianism fails as a comprehensive philosophy, his views on takings are Example 1-A.

If every regulation and impingement on economic freedom (or non-economic freedom for that matter) is a compensable taking under the 5th amendment, the Constitution again turns into a suicide pact.

[I Callahan]

Somin often twists legal jargon into his view of how things should be. This article is par for the course.

[Bob from Ohio]

Market for immigration articles drying up I guess.

[Sarcastr0]

Helluva thing when your reaction to someone writing something you don't disagree with for once is to make up a cynical motive why you can still hate on him.

[James Pollock]

Give Bob a break. He's still all worked up from arguing about how entrapment doesn't exist when cops arrest someone for attempting to rape a nonexistent child, a couple of articles ago.

[BillyG]

Given the current open borders situation by Francis Joe Biden, he's got his immigration wish.

[Rossami]

Unfortunately, the level of private-property-absolutism necessary to support this 'takings' argument went out the window long ago. Public accommodations laws established that rather a lot of social and legal priorities can take precedence over, or at least be balanced against, private property rights.

[Stephen Lathrop]

Rossami, have you got any social or legal priorities to cite with regard to guns on private property—I mean other than gun-culture presumptions? If you assert guns make private property safer, and the owner disagrees, and thinks they add to danger, what social or legal priority decides the question your way?

Is this an argument that the question whether gun prevalence increases public safety—or decreases it—is now settled as a matter of law? If greater gun prevalence is, as a matter of fact, generally more dangerous, do you think the 2A somehow negates that? If the question is contested, and the answer unknown, do you think that means the property owner's opinion counts for zero, and a non-property-owner with a gun gets to decide?

[jimc5499]

About six years ago a man shot and killed his ex-wife. He had been threatening and harassing her for quite a while. She consulted the Police and got a PFA against him, but, he still kept at it. She then bought a pistol, took training on how to use it and got a concealed carry permit. One day she was taking a co-worker to work and the glovebox accidentally opened revealing her pistol. At work the co-worker turned her in for having the pistol. The woman was threatened with the loss of her job if she was caught with the pistol in her car again. Her Ex had heard that she had a pistol and had backed off. When he heard about her not being able to have it in her car at work is when he shot her on her way to work. Her employer effectively disarmed her and removed her ability to defend herself. Shouldn't the employer bear some responsibility?

[Stephen Lathrop]

jimc5499, if you make up a story, you bear the entire responsibility for what happens in your tale.

To comment, I would need a real story, detailing dates, names, places, police reports, trial records, etc. The first thing I would need is a forthright source for the information—which is to say, not something from the NRA or other pro-gun advocates. Got any of that? If not, it's all on you.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It is also important to recognize that allowing owners to bar guns enhances not only the liberty of the owners themselves, but also that of customers and clients who, for whatever reason, prefer to patronize gun-free spaces.

An unbelievably polite sort of criminal is implied by that "enhances". If all criminals were such angels as to obey such restrictions, no one would need guns, and they might never have been invented in the first place.

The rest of the article would be better off without this nonsensical one-sided judgment.

[James Pollock]

"An unbelievably polite sort of criminal is implied by that "enhances". If all criminals were such angels as to obey such restrictions, no one would need guns, and they might never have been invented in the first place."

Just because the proprietor disarms patrons does not imply that the proprietor is not armed.

[I Callahan]

It certainly makes him hypocritical, however.

[James Pollock]

It makes him hypocritical if he tries to take his weapon into other property where the owner doesn't permit firearms.

[James Pollock]

"An unbelievably polite sort of criminal is implied by that "enhances". If all criminals were such angels as to obey such restrictions, no one would need guns, and they might never have been invented in the first place."

so you'[re categorizing people who bring guns to such establishments as "criminals", then?

[Rev. Arthur L. Kirkland]

Gun absolutists are among my favorite culture war casualties. When gun nuttery pays the predictable price of choosing the wrong side in the culture war, I hope a right to possess a reasonable firearm for self-defense in the home survives the backlash.

[Krayt]

Not if the left packs the court.

Granted, it isn't looking likely any time soon. The last time we had inflation like this, it took a Republican president with an economics degree to get it under control, who then went on to win 49 states.

[James Pollock]

This time we had inflation like this, it took a Republican president to create it. (with a little help from a foreign virus.)

[VinniUSMC]

Pollock loves showing off his incredible ignorance. Good job Pollock.

[James Pollock]

If I wanted to show off ignorance, I'd call myself Vinni.

[tennvol]

Comparing someone having a gun in their vehicle to being forced to allow union organizers onto your property is a bit of a stretch. What if it was cell phones? What if all private property owners prohibited the use of cell phones on their property? Or banned cars with internal combustion engines, or leather seats? How about a hotel that jammed cell phone signals on their property?

[James Pollock]

What if you went to a movie, and people couldn't use their cell phones during the movie. Wouldn't that be terrible? Most universities have rules about using cell phones in class.

Jamming cell phones is illegal because it involves transmitting. But if a building integrated a Faraday cage into its structure, that would block cell phone usage inside the building. Are we imagining a right to use a cell phone wherever you want, or just bitching because your boss busts your chops when you're doom-scrolling on your phone instead of working?

[MatthewSlyfield]

An interesting argument.

For the sake of argument, lets limit the discussion to property that would normally be considered a place of public accommodation.

Please explain why this argument applies to guns, but not all other public accommodations laws.

[James Pollock]

"Please explain why this argument applies to guns, but not all other public accommodations laws."

Well, going around strapped is a choice, so it's like public accommodation laws that provide for non-discrimination based on religious affiliation, but it's not like race or national origin.

[MatthewSlyfield]

"Well, going around strapped is a choice, so it's like public accommodation laws that provide for non-discrimination based on religious affiliation, but it's not like race or national origin."

Well that's half an answer anyway. To be a complete answer you have to not just point to a difference, but explain why that difference matters to the argument being made.

[Miles Fortis]

To be a complete answer you have to not just point to a difference, but explain why that difference matters to the argument being made.

Pollock couldn't explain his way out of a wet paper bag.

[James Pollock]

Your explanation has even less meat to it than the one I didn't provide.

[James Pollock]

"Well that's half an answer anyway. "

that's half more than you had before.

[ducksalad]

Did Somin say his argument shouldn't be applied to other public accommodation laws?

[Nisiiko]

No, he didn't, but omitting that point is an argument in and of itself. There's no principled way to say that a store is private property when an owner doesn't want guns inside but it's quasi-public when an owner doesn't want blacks inside.

[James Pollock]

" There's no principled way to say that a store is private property when an owner doesn't want guns inside but it's quasi-public when an owner doesn't want blacks inside."

well, there is ONE way. a person can stop carrying a gun, but it's pretty hard for a person to stop being black.

[Nisiiko]

Michael Jackson would beg to differ.

[James Pollock]

The cornerback who just signed on to the practice squad for the Seahawks?

[Carlos Inconvenience]

One can see the boot-strapping that will be coming: Somebody will innocently enter the private property that bans guns and, when convenient, the government will turn that into a criminal trespass (unlawful entry) and then the criminal trespass into a burglary (entering unlawfully with intent to commit a crime therein). Felony charges and all that comes with them. But, yay, private property rights, I guess.

[James Pollock]

Nah. What will happen first is that somebody will decide that entering property while armed is their right, and the owner of the property will inform them that it is not, with the message delivered by lead projectile.

[Miles Fortis]

Yeah, and you confirm yourself to be the murderous scum all leftists are. I bet you have wet dreams about it.

[James Pollock]

Does the fact that I'm not a leftist affect your analysis at all?

No?

[VinniUSMC]

... I'm not a leftist ...

Sure. Keep telling yourself that.

[James Pollock]

Does that fact that I, like almost everyone else, am smarter than you bother you much?

Too bad.

[Nisiiko]

But of course you think it's your "right" to get a wedding cake, when you walk into a bakery with your "husband?"

[James Pollock]

Depends. Did I enter into a contract wherein a cake was to be provided to me? If so, then yes, I have a right to a cake, no matter what I want to do with it or who I want to serve it to.

[Nisiiko]

No, you didn't. You told the baker you wanted a cake to celebrate your fake marriage, and he said no.

[James Pollock]

You seem to have me confused with somebody else. My marriage was quite real up until I asked the state to dissolve it.

[VinniUSMC]

Nah. What will happen first is that somebody will decide that entering property while armed is their right, and the owner of the property will inform them that it is not, with the message delivered by lead projectile.

I'd almost think that you were attempting parody, if it wasn't already clear from your posting history that you're just really stupid.

[James Pollock]

Reading your own posts and confusing them for someone else's, again?

[F.D. Wolf]

By this logic, every civil rights law that forces businesses to allow entry to people they might not want on their premises - based on race, religion, disability, etc. - is an unconstitutional taking.

Shades of substantive due process and views of property rights from the likes of Dred Scott and Lochner.

[jimc5499]

You have a valid point. But this is about EVIL guns.

[James Pollock]

guns aren't evil. They are a tool. Like any other tool, they can be used for good OR evil, depending on whose hands the tool has fallen into.

[James Pollock]

"Shades of substantive due process and views of property rights from the likes of Dred Scott"

Scot v. Sanderson involved a completely different type of property rights.

[James Pollock]

Here's a fun hypothetical for the gun-fetishists out there:
Suppose the property owner feels threatened by having a gun-toter entering their property after being told their gun wasn't welcome.

Is the property-owner allowed to shoot the trespasser?

[I Callahan]

If he's threatened by gun-toters, then he's threatened by guns. So he wouldn't have one.

For someone who whines about gun fetishists all the time, you know absolutely nothing about them.

[James Pollock]

So your assumption is that everyone is stupid?

Guns aren't scary. Idiots with guns sure are, though.

[VinniUSMC]

So your assumption is that everyone is stupid?

Nope, just you.

[James Pollock]

You need to include a picture that shows that you're pointing to yourself. Otherwise, the words just don' t make sense.

[Miles Fortis]

Well, we see 'The violence inherent in the Left' isn't a canard.

Mere 'gun toting', without any other action(s) isn't a threat that can be stopped by the use of deadly force, by any state law.
Except, of course, in your murderous fantasies.

[James Pollock]

Cops shoot unarmed people on the regular. Excuse? "I thought he had a weapon".

[VinniUSMC]

How're them apples? My oranges are delicious.

[James Pollock]

But your brain still lacks functional capability, regardless of fruit possession.

[dwb68]

So long as the property owner assumes strict liability for everyone's behavior whom they allow on the property, and installs metal detectors and guards who strip search customers to check that the zone is truly gun free....

[Bubba Jones]

What are the incentives for business owners to ban guns and to what extent do these new laws simply correct them?

[jimc5499]

"What are the incentives for business owners to ban guns" Liability usually from anti-gun lawyers looking to make a quick buck.

[Bubba Jones]

So maybe these laws are a typical ham-fisted way to preempt the liability suits?

[James Pollock]

"What are the incentives for business owners to ban guns and to what extent do these new laws simply correct them?"

Three words: "Hold my beer".

[Kazinski]

Where Ilya is wrong is the property owner is allowing people to park on their property in their own cars. Just because I park somewhere I don't give up my property rights to my car.

What's in the car stays in the car.

Take for example the company has a homeless employee that lives in their car or RV, do they have to give up their second amendment rights to work there.

Seems to me the state legislatures can arbite this clashing of property rights. Private car with private property rights, private parking lot with private property rights. It's no more intrusive on the private property rights of the employer than requiring they set aside a room for "lactating people" to express their breast milk, which many state laws require.

[Intelligent Mr Toad]

That should be up to the property owner. If I own land, and I say "you are welcome to park on my land, but I reserve the right to take stuff from your car if you do, and I reserve the right to make you leave if you bring a firearm onto my land, so if you don't like this, then you should probably consider avoiding my land and parking elsewhere," what right have you to defy him? What right has any legitimate government ("legitimate" according to libertarian principles) to forbid him to set that rule on his land? It's his land, and as far as any libertarian is concerned, he should get to set the rules there.

[Intelligent Mr Toad]

Oops, I wrote "him" instead of "me". Well, you can hardly blame me or anyone for being pronoun-confused these days.

(Someone asked me what my pronouns were. I thought for a few seconds and answered: "I, me, you, and your.")

[Miles Fortis]

Trying the 'reserve the right to take stuff from your car' is nothing more than a subterfuge for stealing, that a prosecutor will likely not find convincing enough - while he's probably rolling on the floor laughing his ass off at you for the sheer gall of trying that horseshit excuse out - to keep from charging 'you' for the multiple felonies 'you' committed.
But thanks for injecting some comedic relief for the day.

[James Pollock]

It's a contract of adhesion. You can accept the contract by performance, or reject it by parking on somebody else's land.

[tkamenick]

Does your argument extend to "You can come on my land but I reserve the right to kill you if you do?" If not, you're arguing for anarchy, not libertarianism. Or you don't understand the non aggression principle.

[WuzYoungOnceToo]

you are welcome to park on my land, but I reserve the right to take stuff from your car if you do

You can't reserve a right that you don't have.

[James Pollock]

It's called a contract.

[James Pollock]

"Where Ilya is wrong is the property owner is allowing people to park on their property in their own cars. Just because I park somewhere I don't give up my property rights to my car."

Every towing company in the country would like to correct your misinformation.

[Gunstar1]

I admire Ilya Somin's ability to completely ignore every and all comments.

Praise, rebuttal, or snark... it doesn't matter, Ilya isn't going to answer.

[dactylographer]

I agree, Buffalo Wild Wings can bar me from entering their stores armed. In return, I refuse to enter their stores. But…should I enter their store, they should assume absolute responsibility for my safety for having denied me my ability to be responsible for myself.

As to parking lots…to deny me the ability to secure my means of defense while working for or visiting a business that feels endangered by my being armed, is to deny me self protection not only on their grounds but at all points between those grounds and my residence. That becomes an egregious violation of my human rights, greater than any third party should be capable of. The Second Amendment may be limited to constraining government constraints on my rights, but no other party should be permitted to constrain my natural rights where that party cannot assume responsibility for my safety.

[James Pollock]

How feeble you must be if you can't defend yourself with anything but a firearm.

[Jason Cavanaugh]

You've made that remark at least twice now, James. Both times it's been idiotic, from both an ableism standpoint as well as common fucking sense.

I could, for instance, defend myself with my fists and feet. There's every chance that my attacker is bigger, faster, and stronger than I am though.

I could defend myself with a knife. Naturally the old adage would apply that, in a knife-fight, everyone bleeds - including myself. Since using a knife requires close-combat, it's also entirely possible that I lose control of the knife.

I could defend myself with many different items. None of which will have the standoff range and lethality necessary to practically ensure that I am safe from the aggression I would be attempting to defend myself from when compared to a firearm.

Don't be a fucking machismo idiot. Particularly when we all are fully aware that given the chance to defend yourself with a firearm, or risk the chances of a fistfight, you sure as fuck wouldn't just go charging in like the Kung-Fu Hero you think everyone else has to pretend to be.

[James Pollock]

"Don't be a fucking machismo idiot."

Back-atcha.
You have one of those new-fangled guns that makes you bulletproof? If not, then having a gun doesn't make you safe. It makes you dangerous.

Noted leftist* Robert Heinlein wrote about this topic in the novel "Tunnel in the Sky".

* humor. Look it up.

[Jason Cavanaugh]

"You have one of those new-fangled guns that makes you bulletproof? If not, then having a gun doesn't make you safe. It makes you dangerous."

First, I'd like for you to actually put together a cogent thought (if possible) and refute any of what I said previously regarding the risks of various forms of self-defense.

Then I'd like to ask you to elaborate on how a bulletproof vest somehow stops the hypothetical aggression.

My possession of a firearm makes me dangerous only to those who would consider doing me harm, and nobody else.

You're an idiot, James. You're not Chuck Norris. You aren't Marvel's next superhero, or Jason Bourne. You're a hypocrite and a liar, because everyone here knows full damn well that if the need to defend yourself or your family arose, and you had the opportunity to use a gun instead of risking yourself in a melee, you'd use the goddamn gun.

[James Pollock]

"My possession of a firearm makes me dangerous only to those who would consider doing me harm, and nobody else."

My apologies, Mr. Deadshot. I didn't realize that you are the one person in the world who never misses, never fires off an unwise shot. You have magic bullets that only hit bad guys, and never some unfortunate person who had the bad luck to be in your vicinity on the day you decided to defend yourself by shooting them.

"First, I'd like for you to actually put together a cogent thought (if possible) and refute any of what I said previously regarding the risks of various forms of self-defense."

Your notion that your weapon is dangerous only to someone who presents a clear threat to you is bullshit. Cogent enough for you?

"Then I'd like to ask you to elaborate on how a bulletproof vest"

You're the one bringing up bulletproof vests. What about them? How are they relevant?

"You're an idiot, James. You're not Chuck Norris."

You're the idiot confusing me with Chuck Norris. Chuck made his reputation "fighting" with people who were paid to fall down when given the signal. Hollywood is a poor simulation of real life, and too many people get their ideas of how reality works from Hollywood.

[James Pollock]

"I could defend myself with many different items. None of which will have the standoff range and lethality necessary to practically ensure that I am safe from the aggression I would be attempting to defend myself from when compared to a firearm."

How does your firearm keep you from being shot by that other guy's firearm? magic good-guy powers?

[dactylographer]

I prefer not to have to practice physical defense. After 70 years, with 29 as a LEO and another 20 as an instructor and consultant, I have learned the safest way to avoid violence is to be prepared for it. But to the actual point, I am not omniscient; I can not know what I am entering. If my right to be prepared to defend myself is to be constrained, the people looking to constrain my right of defense must become responsible for my defense. But history has proven otherwise.

[dactylographer]

I believe it is relevant to note, the laws which constrain firearms possession most often constrain most other forms of mechanical defense.

[James Pollock]

So you're telling me it's illegal to carry nerve gas weapons, either?

[dactylographer]

(Nerve gas? Really? It is illegal under federal laws and international treaties/laws. Perhaps you mean chemical agents). In some states it is. My experience showed me that chemical agents (and even electroshock devices) are less than reliable; the drunker, more drug affected, or mentally ill an individual is, the less these weapons have any effect. You seem to think mano a mano is some great equalizer; it isn't and is indeed anything but. The bigger, the stronger, the more dangerous an offender is. Bottom line...you want to prevent anyone from bearing any self-defense tool, then based upon basic understanding of the rights of man and responsibilities, the denier should be formally held accountable for the safety of every person under control, on those premises, and if denying the individual the right to defense while in transit, then responsible for that constrainer individual portal to portal.

[James Pollock]

" Bottom line...you want to prevent anyone from bearing any self-defense tool"

Bottom line... you're extremely poor at stating what I want.

[dactylographer]

Clarification…”if you want to prevent anyone from bearing a self defense tool.” My bad as to grammar. Point is still the same….a property owner wants to prevent others from self defense, then that person assumes responsibility for the other’s safety. Or if dealing with me, loses a customer.

[James Pollock]

How about you take responsibility for yourself, and stop trying to get other people to look out for you? If the property owner says your weapon is not welcome, don't try to overrule his decision. Just go somewhere else. You'll both be happier.

[James Pollock]

" to the actual point, I am not omniscient; I can not know what I am entering."

So look, first, instead of barging in ready to blaze away.

[Gorbag]

Two questions: 1) if it's OK to deny "inalienable rights" some of which are mentioned by the Bill of Rights within property than I own, can I deny any of them? Right to life? Due process?

2) do (most) actually own property? Fee Simple isn't really ownership, it's rental from the State. Is the author proposing Allodial title becoming the norm (which would have the pleasant side-effect of preventing property tax as well)?

[James Pollock]

": 1) if it's OK to deny "inalienable rights" some of which are mentioned by the Bill of Rights within property than I own, can I deny any of them? Right to life? Due process? "

The fact that a government isn't allowed to do something doesn't imply that nobody else can either. Tell your boss he's a dick and then patiently explain to him that he can't do anything about it because of your inalienable right to speak freely, (then cry and moan about how oppressed you are when he explains that he does have the power to decide who he employs and who he doesn't employ, and you just switched categories.

[Gorbag]

Still doesn't help. Why are *some* inalienable rights actually, well, inalienable, but others aren't? What distinguishes them?

[James Pollock]

first off, you have to imagine that there is such a thing as an inalienable right.

[VinniUSMC]

I am a supporter of strong Second Amendment rights to keep and bear arms…. But

"I'm not racist... But..."

[James Pollock]

this fellow's thoughts come from his... but(t)

[tkamenick]

Yes to the first part, no to the second. But the ship has long sailed on the first part anyway. I agree that prohibiting property owners from prohibiting guns on their property takes away one of the bundles of sticks of property rights, but we've long ago established that government just gets to do that.

But another point is that you're making the same mistake a lot of people make about the First Amendment - confusing the value of the underlying right with the particular protection against government infringement against that right. The First Amendment is good because free speech is good, and free speech is healthier when private people and organizations respect and protect it as well. The Second Amendment is good because the ability to protect yourself and others is good, and that ability is healthier when private people and organizations respect and protect it as well.

[James Pollock]

" I agree that prohibiting property owners from prohibiting guns on their property takes away one of the bundles of sticks of property rights, but we've long ago established that government just gets to do that."

Who, exactly, is "we" in this sentence?

[scwoods1947]

"advocacy of laws forcing social media firms to host speech they object to,"
The problem is that Social Media Firms what to both have their cake (Common carrier status to avoid lawsuits) and eat it too (but having the ability to censor views that they don't like). You can't have both.

[James Pollock]

English grammar. Learn it. Use it.

[David Nieporent]

1) They are not common carriers and do not have "common carrier status."
2) If by "both" you mean the right to moderate and immunity from liability for moderation, you can indeed "have both." In fact, they do!

[Longtobefree]

Or it shows why this approach is not libertarian.

[James Pollock]

You mean like, say, they can? Except for specific protected classes.

If you don't want to admit anyone into your home that's taller than 5'5", who's going to force you to admit them? The Globetrotters?

[James Pollock]

that word is spelled "grok". Because Robert Heinlein said so.

[James Pollock]

"Anyway, my right of self defense trumps your property rights, every time."

so you're ceding me the first shot? Invading someone else's property while armed invokes castle doctrine.

[James Pollock]

"when libertarians are not in power those that oppose policy X (gun rights) will generally not hesitate in enforce policies against it, regardless of Y (property rights)."

Whoops. It isn't opponents of policy X that are enforcing policies against it, regardless of Y. It's proponents of policy X that are setting and enforcing policies that limit Y.

[I Callahan]

Exactly. Shorter Somin: "The libertarian argument for gun control."

[Armchair Lawyer]

"Protected classes you say...." Why have "protected classes"? Almost like certain things in the "Bill of Rights" protect certain classes.

[Sarcastr0]

From government action, sure.

But that's not what this is about.

[James Pollock]

"Why have "protected classes"? "

Because there are classes who need protection. Popular people have their popularity to protect them. Rich people have all the protection they can buy. Not everybody can be rich.

[VinniUSMC]

so you're ceding me the first shot? Invading someone else's property while armed invokes castle doctrine.

I honestly believe that you are stupid enough to think this is true, and not nonsense.

[James Pollock]

But because you ARE stupid, you are in no position to lecture anyone on the subject.