The Volokh Conspiracy

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Guns

My Washington Post Article on Gun Rights and Property Rights

It explains why laws requiring private property owners to allow guns on their land are an affront to property rights, and violate the Takings Clause of the Fifth Amendment.

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Earlier today, the Washington Post published my article on "'Gun-at-Work Laws' Violate the Property Rights of Business Owners." Here is an excerpt:

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….

Scholars and courts have long recognized that the right to exclude people and objects of which they disapprove is a central element of property owners' rights. Indeed, the Supreme Court recently reaffirmed, in a decision that forbade California from giving union organizers a "right to take access" to an agricultural employer's property — three hours a day, 120 days a year — that "[t]he right to exclude is "one of the most treasured" rights of property ownership." True originalist constitutionalism would embrace a strong view of Second Amendment rights while also defending the rights of business owners to keep guns off their property, if they so choose….

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…

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

The left, of course, has its own long-standing 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.

The article is in part adapted from an earlier, longer essay I wrote on this issue for the Duke University Center for Firearms Law.