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May 31, 2012, 04:25 PM | #76 | |||
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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:
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Last edited by Aguila Blanca; May 31, 2012 at 04:36 PM. |
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May 31, 2012, 05:31 PM | #77 |
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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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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. |
June 1, 2012, 10:27 AM | #79 | ||
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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:
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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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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June 1, 2012, 01:14 PM | #81 | |
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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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June 1, 2012, 01:32 PM | #82 | |
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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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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. |
June 2, 2012, 07:13 AM | #84 | ||
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June 2, 2012, 07:52 AM | #85 | |
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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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June 3, 2012, 08:28 AM | #86 |
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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. |
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. |
June 4, 2012, 12:18 AM | #88 | |
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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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June 4, 2012, 03:51 PM | #89 | |
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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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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....... |
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? |
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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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. |
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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June 5, 2012, 10:37 AM | #95 | ||
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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:
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:
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