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Old May 31, 2012, 04:25 PM   #76
Aguila Blanca
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Quote:
Originally Posted by jason iowa
No I'm not a constitutional lawyer or scholar. Other then spending 8 years in the navy defending it I don't know anymore then anyone else that can read the constitution and SCOTUS decisions. This one was pretty clear in a recent decision.
Okay, then ... which decision, and exactly where in that decision did it stipulate that owners of private property could not establish rules regarding what is and what is not allowed on their property?

The logical extension of your argument, of course, is that if you are correct it must also be unlawful for the owner of a shopping mall to post "No Firearms Allowed" signs and to evict people caught carrying on their property. Are you also arguing that you have an absolute right to ignore the owner's rules and carry in a shopping mall that's posted?

Quote:
Originally Posted by jason iowa
Regardless I stand by my original statement that I would ignore it and that no one is going to dictate to me how I choose to defend my loved ones ...
Your choice. But your choosing to ignore a clause in a lease does not make it illegal.

Quote:
Originally Posted by jason iowa
... and there is little or no recourse that could be taken.
Well, of course there is recourse. The landlord can evict you for violating the terms of your lease.

Last edited by Aguila Blanca; May 31, 2012 at 04:36 PM.
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Old May 31, 2012, 05:31 PM   #77
Glenn E. Meyer
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I haven't seen an analysis that Heller negates property bans. Law articles, books - haven't seen it.

SCOTUS decisions and legislation have affected businesses (I guess a rental is a business) when it comes to discrimination against protected classes. But gun ownership and carry is not protected in that fashion.

The argument that businesses can ban CCW would be used to support the same in apartments or rental houses. Heller applies to the government.

Specific legislation or a SCOTUS decision would be needed but I doubt SCOTUS would go near this.
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Old June 1, 2012, 08:27 AM   #78
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This was almost 20 years ago I really don't recall the specifics. I did deal with this issue years later while working as a law enforcement officer in arnolds park a resort town in the iowa great lakes area but it was a hotel issue not apartments.

yes I said in an earlier post that little or no recourse would include eviction if the clause was enforceable. Just this spring we had a shooting at college apartments 30 miles from my house. It was off campus thankfully no one was killed but at these same apartments a few years ago two women were killed there. So imo eviction is not a big deal. Not having the chance to defend yourself is. (Cedar rapids, kirkwood apartments)

I have never had to rent in iowa or anywhere else but someone brought up ethics and I believe it unethical to deny someone the right to protect themselves and loved ones. Anyone who works or has worked in law enforcement will tell you that they are not there to protect you but to gather evidence at the crime scene to convict your murderer. You are the only one who will protect you and your loved ones.

In iowa posted signs saying no weapons allowed have no legal authority so yes I ignore them. I disarm to go into my fathers office but that's state property and its more out of respect then any legal obligation.
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Old June 1, 2012, 10:27 AM   #79
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Quote:
Originally Posted by jason_iowa
...yes I said in an earlier post that little or no recourse would include eviction if the clause was enforceable...
The clause is enforceable. Your view that eviction is "little recourse" is your personal, subjective evaluation. For some people, eviction could have more serious consequences.

An eviction can be reported on a credit report and might make it harder for one to get a new place to live or a loan. It may also have negative consequence in connection with one's employment. And for people with families, it can be a significant expense and cause serious disruption to their lives.

Quote:
Originally Posted by jason_iowa
...I believe it unethical to deny someone the right to protect themselves and loved ones....
Yes, it is entirely reasonable to believe that it's unethical for a landlord to require a "no guns" clause in a residential lease.

But you have been asserting that a "no guns" clause in a private, residential lease is illegal and unenforceable. And, at least in the vast majority of States, that is not true.
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Last edited by Frank Ettin; June 1, 2012 at 11:02 AM. Reason: correct typo
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Old June 1, 2012, 10:58 AM   #80
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Some people also consider it unethical to sign a contract which you have no intention of honoring....
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Old June 1, 2012, 01:14 PM   #81
Aguila Blanca
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Quote:
Originally Posted by jason_iowa
In iowa posted signs saying no weapons allowed have no legal authority so yes I ignore them. I disarm to go into my fathers office but that's state property and its more out of respect then any legal obligation.
Even in states where posted signs have no legal import, if the owner or authorized agent of the property of the property sees you and personally informs you that you must leave because you are violating their rules, if you don't leave you are in violation of laws pertaining to criminal trespass and you can be arrested. If you were (or are) in LE you must know this.

I find your second sentence (above) interesting on two grounds. First, what difference does it make if your father's office is on state property? If a law prohibiting firearms is unconstitutional, as you claim, then it is equally unconstitutional for a state government as for a private owner. Secondly, you disarm when visiting your father's office "out of respect"? Respect for whom or what? Why should you disarm out of respect for a state law while arguing that you don't have to respect a private property owner's rules? Or are you arguing that you respect only your father so you disarm there so as not to embarrass him, but that you don't respect your state's laws?

Frankly, I don't find your position to be logical, ethical, or legal. You are certainly free to live according to what you think is right, but I hope you don't go around advising others that your interpretation on this is correct.
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Old June 1, 2012, 01:32 PM   #82
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Quote:
As someone who's lived in apartments before, be sure to change out the locks when you move in. Do not give the manager a key.
That would be a good way to have a landlord start eviction procedures in many places (if not almost all).

I need access to the place for emergencies, and the lease (ans state law in many places) define what is reasonable for a landlord to demand.

Keys and 24 hours notice are common.
And 24 hours is commonly waived in emergencies )often defined as anything that could result in property damage if not dealt with immediately).


You have the USE of the premises, NOT OWNERSHIP.

I STILL OWN THE PLACE.
MY name is on the deed.

I rarely bother any of my tenants, and many of them see to minor repairs on their own.

A few call over and over after clogging drains.
They never seem to stick around long.

I could care less if they own firearms, as long as they do not damage the property.


I have never seen so many folks that appear to have NO understanding of their rights, and how are legal system operates.

Your rights on private property are subject to the property owner.
If you have a business open to the public the owner's rights are limited in a many ways.

Discrimination against the 'protected classes' is NOT allowed.
Other discrimination IS allowed.

You do not have to admit robbers or thieves. (You can be banned for shoplifting, crating a disturbance, or just having B.O. and being an a-hole).

Others have explained it cogently and clearly.

I cannot stop you from speaking or carrying a gun, but I sure as hell can demand you LEAVE or have you charged with a crime, trespassing.

Last edited by brickeyee; June 1, 2012 at 01:39 PM.
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Old June 2, 2012, 04:33 AM   #83
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No its not illegal to carry on state property I was just specifying that it was not private property. Since it is policy not to carry there and its my fathers work place out of respect for my father and his coworkers I lock my firearms in my car before going in.

I never said it was illegal and there for unenforceable I said IF it is not legal then it is unenforceable at least that's what I was trying to convey. I also said a landlord has no right to dictate how you chose to defend yourself and your loved ones. I mean that from a human rights and ethical standpoint not a legal one.

No I don't believe its immoral to sign a contract you have no intention of honoring sections of. Contracts often have clauses that are not enforceable or outright illegal because they are standard forms and do not follow state or local laws. I gave an example of cell phone contracts earlier. Just because you put it in a contract or lease does not maker it enforceable! That's all I have been saying. If you would read the whole of my posts rather then cherry picking perhaps we could stay more on topic.

My second argument is that doing what you need to do to survive trumps the possibility of getting evicted.
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Old June 2, 2012, 07:13 AM   #84
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Quote:
Originally Posted by jason_iowa
. . . .I never said it was illegal and there for unenforceable I said IF it is not legal then it is unenforceable at least that's what I was trying to convey. I also said a landlord has no right to dictate how you chose to defend yourself and your loved ones. I mean that from a human rights and ethical standpoint not a legal one. . . .
Well, I don't know why you're backpedaling on this now, but I have to disagree. You did state that "no firearms" clauses were illegal.

Quote:
Originally Posted by jason_iowa
. . . .Cell phone companies can put in early contract termination fees but its illegal to do so in iowa so it has no validity. Same with leases that deny constitution or human rights or break discrimination laws. So ya a landlord can put whatever he or she wants in a lease but that does not make it legal.
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Old June 2, 2012, 07:52 AM   #85
Aguila Blanca
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Quote:
Originally Posted by jason_iowa
No its not illegal to carry on state property I was just specifying that it was not private property. Since it is policy not to carry there and its my fathers work place out of respect for my father and his coworkers I lock my firearms in my car before going in.
So you practice situational ethics, then. You don't carry at your father's place of work out of respect for your father and his coworkers (have they ever said that they don't want you to carry there?), but you don't have enough respect for an owner of a rental apartment unit to respect his express wishes that you not have guns on HIS property.

What are your criteria for deciding who is important enough that you'll respect what they want, and whose requests you won't respect?
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Old June 3, 2012, 08:28 AM   #86
jason_iowa
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Its my choice. I can choose weather to respect a policy or not. In most instances I choose not to because it reduces my ability to defend myself and my loved ones. Being on crutches has greatly diminished my ability to defend myself or loved ones without a weapon. There are plenty of armed people that I trust at my fathers office there are not in walmart. That's the difference. I respect their ability to provide a safe environment not the no weapon policy.

The law has given me the freedom to make that choice. If they make it illegal for me to carry in places that have no weapon policies then I will no longer go there. As long as I have that freedom I will exercise it and I will encourage others to do the same. I would not encourage others to break the law regardless of my feelings of said law.
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Old June 4, 2012, 12:01 AM   #87
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So lets say a lease has a no firearms clause and the landlord finds out you have firearms and wants to take action.

Isn't judicial enforcement "state action" and then one could argue that such ion in violation of the covenant is unconstitutional?

There are a bunch of arguments to say that such a clause couldnt be enforced and the same amount saying it could be. However once your lease is up the LL can simply tell you to leave.
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Old June 4, 2012, 12:18 AM   #88
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Quote:
Originally Posted by vranasaurus
...Isn't judicial enforcement "state action" and then one could argue that such ion in violation of the covenant is unconstitutional?...
I seriously doubt it. Any contract involves trading one or more rights for whatever benefits you hope to derive from the contract. Some of those rights might even fall into the otherwise "constitutionally protected" category.

Many contracts contain confidentiality clauses. Various types of nondisclosure agreements are common in certain contexts. These impair one's free speech, but they are enforceable. The very nature of a contract is that you trade something, or usually a number of things, for something you want. And those trades are enforceable.

There are some narrow exceptions. A contract with an illegal object is not enforceable, so I could enforce you agreement, if you're my competitor, to fix prices. An contract the performance of which requires an illegal act, e. g., committing murder, is unenforceable.
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Old June 4, 2012, 03:51 PM   #89
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Quote:
Isn't judicial enforcement "state action" and then one could argue that such ion in violation of the covenant is unconstitutional?
The landlord is going to sue you in civil court and ask for the terms of the lease to be enforced.

You signed it, you agreed to it, you will lose if the lease provision does not violate any law.

It is not a criminal matter, but one party asking for help in enforcing a contract.

The same thing would happen if you failed to pay rent.

The landlord starts a civil eviction action against you.
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Old June 4, 2012, 09:05 PM   #90
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As to a landlord restricting your freedom of speech and religion, it happens all the time. Many leases and contracts restrict loud voices and noises after a certain time of night - therefore your ability to go around yelling and screaming at 3AM is being restricted. Religion? they can restrict you from exercising acts like burning crosses on the lawn or performing animal sacrifices, even if your religion calls for it.

As others have mentioned, do not confuse contract law with the US Constitution - different animals.......
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Old June 5, 2012, 08:49 AM   #91
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"That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court." - Shelley v. Kraemer, 334 U.S. 1, 14 (1948).

Now this case dealt with racially restrictive covenants on the sale of real estate property so it's different but a judicial order is state action.

A court order for specific performance or injunction that directed that you were not to possess firearms in your apartment would seem to me to be a judicial order that flies in the face of Heller.

Further the question would come up whether or not that particular covenant in the lease was dependent or independent. I have a hard time coming up with a rationale making it a dependent covenant.

I doubt the LL would get specific performance or an injunction and therefore could sue for damages.

What damage has he suffered?
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Old June 5, 2012, 09:09 AM   #92
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vranasaurus, I do not think that there's much question about whether a court order constitutes "state action." That doesn't necessarily mean that it is a "state action of the type prohibited by the 2nd Amendment."

In the case of judicial action to enforce a lease between private parties, that's outside the scope of the 2A. If the tenant signed the lease with a no-firearms clause, then the tenant has surrendered his right to possess firearms on the property, in exchange for the right to occupy the property. This is a perfectly enforceable contractual arrangement. If you violate the lease, you can be evicted. This is the case, regardless of whether: (a) you violate the no-guns clause; (b) you violate the no-dogs-greater-than-100-lbs clause; (c) you violate the noise clauses; or (d) other.

With respect to Heller, the question was not whether a private property owner could ask for such a surrender or exchange, but whether the government could prohibit possession of firearms within the home. In this context, one critical note (to my mind, anyway) is that the DC ordinances prohibited the owner of the property from possessing functional firearms in his or her own home. This is an entirely different situation from the landlord/tenant situation.
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Old June 5, 2012, 09:53 AM   #93
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Why is it SO difficult to understand that a lease is a contract, not a law, and thus not subject to Constitutional analysis? Unless a contract prohibits one of the protected classes (age, gender, religion, etc.) the Constitution simply does not enter into the equation.
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Old June 5, 2012, 10:24 AM   #94
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I believe it's difficult for people to understand because the scope and purpose of the Constitution is no longer understood.

Because people are taught that government is The Answer, not The Problem.

Because people no longer understand the the free market is the avenue to address disagreeable practices, not the courts.

Because people believe its ok to look me in the eye, shake my hand and sign my contract, with no intent to ever abide by it, because my contract is "dishonorable".

These things, taken separately, seem somewhat unrelated but they're not, they feed from each other and lead to each other. They are the cause of these problems. Not the only causes, but a big part.
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Old June 5, 2012, 10:37 AM   #95
Frank Ettin
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Quote:
Originally Posted by vranasaurus
"That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court." - Shelley v. Kraemer, 334 U.S. 1, 14 (1948).

Now this case dealt with racially restrictive covenants on the sale of real estate property so it's different....
Shelley is unique. I am not aware of the core "state action" holding of Shellley ever being applied to block enforcement of a bilateral contract.

Some things to note about Shelley that would make it inapplicable to a case involving the enforcement by a landlord of a clause in a lease:
  1. The Shelleys were an African-American family who, in 1945, had bought a home in a particular subdivision. The subdivision dated back to 1911, at which time the owners of the individual parcels all agreed that no parcel within the subdivision would be occupied by non-Whites. This agreement was recorded. This is an example of a "restrictive covenant running with the land."

  2. The seller of the property was not a party to the suit. He had sold the property to the Shelleys, and, as far as we know, completely happy with the deal.

  3. A lawsuit was brought in state court by other, neighboring, property owners to keep the Shelleys from moving into the neighborhood. The state court issued the requested injunction, and the Shelleys sued in federal court to block enforcement of the injunction.

  4. Note that the Shelleys were not being sued in state court on the basis of anything they agreed to. The underlying agreement being relied upon by the state court plaintiffs was entered into among past owners of the property. We don't know if any the Shelley state court plaintiffs were even signatories to that underlying agreement, nor do we know if the person selling the property to the Shelleys was a signatory.

  5. But in any case, the underlying lawsuit against the Shelleys was not based on any contract the Shelleys had entered into or any promises made by the Shelleys to any of the state court plaintiffs. There was, as we say, no privity of contract.
I've not seen anything like the core theory of Shelley being applied in any case not involving a restrictive covenant running with the land.

In a breach of lease case, the landlord would be seeking enforcement of an agreement running directly in his favor voluntarily made by the person he is seeking the enforcement against. That is a very different situation.

Quote:
Originally Posted by vranasaurus
...A court order for specific performance or injunction...
A landlord's remedy for a breach of a lease is eviction not specific performance.
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