Private, and other, Property Rights

Brian Pfleuger · November 9, 2010, 12:37 PM

The idea has come up a few times here on TFL that the constitution does not "provide" for private property rights, so I thought we could use a thread to discuss the issue.

First, I say that the constitution doesn't "provide" any rights. It acknowledges many of them, and properly... "they are endowed by their Creator with certain unalienable rights".... but it does not "provide" those rights and does not, in fact, even acknowledge them all.

Second, the constitution does provide for private property rights under the fourth amendment:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,..."

The meaning therein is crystal clear in my reading. You can not be "secure in...persons, houses, papers..." if you have no right to own private property.

Third, those private property rights having been acknowledged, it is common sense that there would be "categories", or certain exclusions, exceptions or alterations to those rights, depending on the chosen use thereof.

A persons home should be almost completely under their control. Exceptions should be virtually none, subject to the age of majority, until the person violates the only truly "inviolable" personal rights of life and liberty. A person could, for example, require everyone entering their home who is over the age of 18 to have sex with them. Now, they may not have any visitors, but they could make that requirement. Equally, a person could say "No one allowed who is under 85 years old." or who is Caucasian, or black, or female, or male.... or any other stipulation. Additionally, a person should be able to do virtually anything WITH their private property. The prevalence today of entire towns wherein a person cannot even choose the color of their own front door are clear violations of constitutional principles.
A private property owner can require that you do not carry firearms on their property.

Now, for the more controversial part. Several categories I would like to discuss.

A property that is open, truly open, to the public falls under completely different rules. "Pure" public property, such as the town square, are prohibited from excluding races, classes and ages of individuals, among many other qualifications, as we all know.

I would submit that a property that is open to the general public, such as under a business front, should fall under these same requirements. If you open a business then that business is, indeed, open. You can not exclude black people or white people or woman or men or old or young.... or those who choose to exercise their constitutional rights, such as carrying a firearm, so long as their INTENT is not to disrupt your business. Note that carrying a firearm would virtually never qualify under this "intent" clause, except for the fairly obvious exception of violent intent. I mean that more to the effect that someone could not carry signs in your store about how crappy your pizza is, etc....
These public places can not violate your "public" rights, including the right to carry a firearm.

I would submit that the rights of the owner of a business to control their employees general behavior does not qualify under the general "open" category of the business property. The employees are not there as customers. They are under the direct control of the business owner, and voluntarily so, and are therefor subject to whatever rules (restricted by the inviolable rights) that the owner should desire.
Employers have the right to control their employees, to a very great extent, including restricting the carrying of firearms while on company time.

I would submit that religious, or any other private, organizations are not "public" and therefore qualify under the same rules as private property ownership, with the caveat that the rules are made rather than by a single homeowner or family but by the entire membership of the organization. Virtually all "membership" type organizations would fall under this category. The KKK can exclude black membership. A church can prohibit homosexual members. The Black Panthers can exclude white members. Moreso than just "membership", these organizations can prohibit the very presence of any person or person(s) at any time and for any reason and can create whatever "qualification" on the presence of any individuals at any time. Point being, general constitutional protections of "public" property do not apply. Once again, the only prerequisites are the "inviolable" rights of life and liberty. These organizations can require that EVERYONE entering their property be armed or that NO ONE entering their property be armed.

Note: When absolutes are used above, I generally mean what "should be", not necessarily the current status under judicial decisions.

What say you?

**44 AMP** · November 9, 2010, 01:46 PM

While we have the right to keep and bear arms, that right is not absolute, and has always been subject to limitations.

Our right to carry arms does not trump the right of the property owner to restrict such activities. Even in a "public" area.

Since those bearing arms are not a defined public class, such as race, gender, age, etc. the law does nothing to force the property owner to place our right to arms above his right to control his property. And that includes businesses.

True a business owner should not bar the carry of arms by peaceful people, but, sadly, today, one cannot usually determine the intent of an armed individual until too late if their intent is evil.

And, also, today, were a property owner can be found legally liable for the actions of others on his property (rightly or wrongly) it makes poor business sense to expose oneself and one's business to those risks.

I have always felt that a property owner who denies the right to arms assumes the moral responsibility for our safety. But under current law, they do not assume the legal responsibility, rather just the opposite.

You have the right to free travel, but you cannot trespass. You have the right to swing your fist, but it ends at my nose.

All our natural rights are legally limited in some fashion or other, and it is that limitation that allows society to function.

If I have a business, open to the public, I could allow any kind of legal peaceful behavior by my customers, but if I choose not to, for any reason, I have that right. Outside certain narrowly defined circumstances, the law does not force me to do so, should I choose otherwise. And, I believe that is as it should be.

The majority of our codified rights are limited in regard to what the government may pevent us from doing. What a private property owner (even when said property is open to public access) is something else again.

You have the right to free speech, free from government censorship, but you do not have the right to exercise it on MY property, unless I agree.

BlueTrain · November 10, 2010, 12:45 PM

Well, actually you don't even have the right to swing your fist at someone. That constitutes assault. If you connect, then it's assault and battery.

It is interesting that the first post mentioned rights "endowed by their Creator," while the last mentioned "natural rights." But I don't suppose we have to be limited to one or the other.

All references to rights in various documents during the age of revolution, as we might call it, were put there in response to events that had happened in recent history, within the memory of most of the people involved. One might even go so far as to say they were all bad things that people didn't want to have happen again. Many of them concerned property. Owning property is what could be called a private liberty, same as "being secure in your person, property, etc." Carrying a gun while in your own house might be a private liberty (carrying one in the bathroom might be a very personal liberty) but carrying one anywhere else might be called a public liberty. That's sort of the difference we are speaking of here, I think. That is even ignoring mention of the word militia, which keeps cropping up here and there ever so inconveniently.

It is a fine line, this particular issue. Curiously, one of the places I know of that has a sign forbidding loaded guns is an indoor shooting range.

Wag · November 10, 2010, 01:04 PM

Excellent analysis so far. My 1/50th of a dollar's worth:

The Constitution does nothing to reference the rights you have with regard to how you manage your personal property, it only refers to the rights you have which are not going to come under jeopardy by the federal government.

States may institute various rules about how you're going to be restricted with regard to your property and some activities are going to be illegal and necessarily so. However, those restrictions should be minimal.

Businesses are not public, they are private. The owner of the property only invites people to come in or not, their choice. As it is the choice of the customer or prospective customer to come and go, they have the option of NOT going into that place of business. Ergo, if they don't like the rules of the property owner, they can stay out. And they should, frankly.

Constitutional protections generally end at the front door of the property owner. Just as we don't have free speech rights on this forum (and rightly so), we don't have the right to carry a gun into a location where the owner has forbidden them, even if that is a place of business with the door open to the public. As soon as someone walks across the property line, he is no longer part of "the public" but a guest of the establishment who has agreed to the rules of imposing his presence therein.

I do see the efficacy of the prior discussion, however. I think it may be a tough one, though.

--Wag--

BlueTrain · November 10, 2010, 04:40 PM

Although it is entirely possible, I somehow don't think the delegates to the constitutional convention had this sort of thing in mind when they thought about private property. As I read this thread, I get the idea that some people would like to either carry their gun anywhere they wanted or, alternatively, exclude anyone they didn't like from their place of business.

One of the first problems faced by the Confederation was dealing with people who thought they had been wronged when they had been serving in the army during they revolution. They returned home after the war to find their property sometimes confiscated and themselves deeply in debt. They believed that they were due some relief from the government and took it upon themselves to do something about it. In other words, it was about their own private property over which grievances arose. At the time, if you were in debt and could not pay, you got thrown in debtor's prison. The immediate question was whether or not you could essentially stage a revolution to solve an injustice like that. Since they had just finished doing that, they saw no reason why they couldn't do it again. Who says it's always the national government that can be tyranical?

It was with things like that in mind that the constitution was written and coincidentally, most of the people at the constitutional convention had been in on the articles of confederation, too, so they had been through it before, in a way, only that time, the crowd that wanted a stronger central government got more of what they wanted. It should be no surprise that many of the points of every document written during this period, and their were many, enjoyed a lively argument before things eventually got signed by the state delegates.

But I guess not everything got settled after all.

**44 AMP** · November 12, 2010, 12:51 PM

Quote:

It is interesting that the first post mentioned rights "endowed by their Creator," while the last mentioned "natural rights." But I don't suppose we have to be limited to one or the other.

The two phrases meant the same thing in the days of the Founders. Today we talk about "basic human rights" (although being armed is virtually never mentioned in those "basic" rights today, outside of the firearms community

)

**tyme** · November 12, 2010, 01:23 PM

Quote:

Originally Posted by Peetzakilla

I would submit that a property that is open to the general public, such as under a business front, should fall under these same requirements. If you open a business then that business is, indeed, open. You can not exclude black people or white people or woman or men or old or young.... or those who choose to exercise their constitutional rights, such as carrying a firearm, so long as their INTENT is not to disrupt your business. Note that carrying a firearm would virtually never qualify under this "intent" clause, except for the fairly obvious exception of violent intent.

I'm in the minority, but I agree with you. That's the way things should be, but it's not the way things are.

One thing: how would you square that with posted signs forbidding customers from being barefoot or not wearing a shirt? Barefoot customers you could argue are a safety risk, but shirtless customers... how would you justify excluding them from public businesses?

Quote:

Originally Posted by 44 AMP

Since those bearing arms are not a defined public class, such as race, gender, age, etc. the law does nothing to force the property owner to place our right to arms above his right to control his property. And that includes businesses.

True a business owner should not bar the carry of arms by peaceful people, but, sadly, today, one cannot usually determine the intent of an armed individual until too late if their intent is evil.

And, also, today, were a property owner can be found legally liable for the actions of others on his property (rightly or wrongly) it makes poor business sense to expose oneself and one's business to those risks.

That's the state of current law, but I do not think it is just. A business owner can't determine the intent of any customer until it's too late... so perhaps the owner should ban everyone from his store?

The point about legal liability is a good one. It means we cannot rely on market forces to provide alternatives to businesses which ban guns. That's precisely why the law itself must be fixed to allow people to responsibly carry firearms in any businesses open to the public.

Self defense is a right. Guns are in many cases the most effective self-defense tool available. If Joe Store Owner's business banned women from carrying pepper spray, there would be a colossal media firestorm, both because it seems unreasonable and because enforcement would be a nightmare. (Can you imagine store owners rooting around through female customers' handbags?) The current media circus surrounding searches at airports indicates that people are tired of being treated like criminals.

Even supposing that it remained illegal to concealed carry a firearm into a business that's open to the public, without permission of the business owner, how would you propose to screen customers to enforce that? By harassing random customers?

It's only possible to be ejected from a store if your concealment method fails. If your firearm remains concealed, it is illegal for a proprietor to physically search you in most situations.

Yet, as long as we have ambulance-chasing attorneys, businesses with good legal counsel will not want to take on the liability of allowing firearms, so we have this mess where some people carry illegally and get railroaded if they're discovered, criminals carry illegally without concern for the law, and citizens inside the business are on average less capable of defending themselves.

brickeyee · November 12, 2010, 03:02 PM

Quote:

(Can you imagine store owners rooting around through female customers' handbags?)

They can (and do sometimes) on the flimsiest of pretexts.

A mere suspicion of theft is enough in many states for a store owner to detain until police arrive, and search bags and containers.

Quote:

The idea has come up a few times here on TFL that the constitution does not "provide" for private property rights, so I thought we could use a thread to discuss the issue.

They are inherent, and were not under question at the time of the revolution (or now except for eminent domain cases).

If the Constitution listed the obvious it would be thousands of pages long.

The 4th amendment clearly recognizes that private property exists.

Quote:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

**tyme** · November 12, 2010, 04:46 PM

Yeah, on the way out, not on the way in*. And only if the customers don't know their rights. As you pointed out, the establishment has to have some suspicion that the customer shoplifted before they search or detain against the customer's wishes. Otherwise they risk lawsuits.

The 4th amendment articulates the notion of private property vs the government, not private property vs other private persons (real or artificial).

* They may try to forbid people from bringing bags into a store (not very effectively), to prevent people from having a place to hide shoplifted items upon exit, but I've never heard of store management searching bags at store entrances.

BlueTrain · November 12, 2010, 05:05 PM

Upon reflection, I believe there are businesses that attempt to restrict entry by the general public, and I'm referring to stores that sell merchandise. That is sometimes the case with stores that sell things like jewelry or other high value items, especially if the store is in a low value neighborhood. Asking people to wear shirts is merely the expectation of conventional standards of decency, whether or not you agree with the standards.

The constitution indeed grants some rights and confirms others, although it is not always explicit in the distinction. But the expression "life, liberty and pursuit of happiness" pops up as natural rights. A contemporary expression said "property" instead of "happiness," which I think is an unfortunate substitution in spite of the beauty of the expression. I wish I'd written it myself. If the Puritans had written it, they probably wouldn't have said happiness. As it is, it would have been nice if all the assumptions had actually been given but more likely, that wasn't the point of the constitution. It was intended to be a working document to create an entirely new, or practically new, form of government, one that worked better than the one they'd been getting along with previously.

The United States (and a few others) are, or is, unique in being formed from at first a lot of formerly almost entirely independent governmental entities. They certainly had different histories, though they all spoke the same language (barely) and had the same colonial relationship with the mother country. Did you ever notice how some countries are "mother countries" while others are the "fatherland?" I think it took a while to get over that sense of separateness and the war itself probably made the biggest difference. There are still differences, of course. The one I heard the most about when I was growing up was about "those out of state drivers."

I think that ultimately the 2nd admendment is a weak reference as a right to carry a concealed weapon (to get to the heart of the matter), and the whole matter is better dealt with at the state level with more direct reference to firearms and none at all to the militia, which is only confusing things at the national level. I'm not saying that's an easy solution but it already seems to be working in some places, as it has for years. Just don't look at the constitution as the source for all rights and privileges in this country. It might be an impossible goal in some states or localities but that's the chance you take if you look to state's rights or local rule.

The question can also be seen this way. Self defence can be seen as a natural right, as based on your right to life and liberty, and perhaps happiness and property. Even that right seems to be questioned in some places, or so I'm led to believe. But does it follow that means you have a right to own a gun? But if you say yes because of the second admendment, meaning it is a right guaranteed by the etc., then it can also be taken away, because it isn't a natural right, no more than voting. Either way, I think the solution is thorough establishing the legal right at the state level in an unambiguous way.

Wag · November 12, 2010, 05:32 PM

Anyone go to a rock or country western concert lately? Especially in the larger venues?

They DO search everyone going in. You're not allowed to have even the smallest pen knife.

I don't know about the women, but I believe they are required to open up their bags and purses.

Comments? Judgments?

--Wag--

brickeyee · November 12, 2010, 07:55 PM

Quote:

But the expression "life, liberty and pursuit of happiness"

Not present in the Constitution.

Brian Pfleuger · November 12, 2010, 08:45 PM

Life, liberty and the pursuit of happiness are not technically in the constitution. However, The Declaration of Independence can be seen no other way than as the very foundation upon which the constitution is built.

The final paragraph thereof:

We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Quote:

Originally Posted by BlueTrain

I think that ultimately the 2nd admendment is a weak reference as a right to carry a concealed weapon (to get to the heart of the matter), and the whole matter is better dealt with at the state level with more direct reference to firearms and none at all to the militia, which is only confusing things at the national level.

I agree. The concept of incorporation is not constitutional, in my opinion. The COTUS was clearly intended to restrict the NATIONAL government, not the states. Proof, among other places, is clearly seen in the fact that several states had official religions for DECADES after the COTUS was ratified.

brickeyee · November 13, 2010, 10:14 AM

Quote:

Life, liberty and the pursuit of happiness are not technically in the constitution. However, The Declaration of Independence can be seen no other way than as the very foundation upon which the constitution is built.

While the DoI may have formed a basis for later things like the Constitution, the DoI has no legal force anymore (as if it actually had any to start with beyond being what it is, a quasi declaration of war from the colonists to the crown).

**44 AMP** · November 14, 2010, 12:18 PM

The Consitution has a catch-all, in the Bill of Rights, down towards the bottom (9th&10 Amendments), however, I repeat, that, your "rights" both defined and undefined in the Constitution, apply only to "you vs. Govt" situations.

They do NOT apply to "you vs. another citizen" situations, legally. Yes, there is some overlap in the principles, but legally they are not the same.

Property owner's right to control their property (including the action of people there on), trumps your personal right to do as you wish, while on their property. Period. Even property where the owners encourage public access, such as a business.

Glenn E. Meyer · November 14, 2010, 12:38 PM

But that is not the law of the land. Business is not free to control your behavior in actuality in many cases. You may want to poop while in the restaurant. They have to provide a place to do such that conforms to health standards. They cannot say that their property rights enable them not to have a toilet.

It also a societal judgment. There is no law of physics or mathematics that says that property rights trumps other rights.

it is just a consensus that decides which trumps what.

The legislative processes interacting with checks and balances, the current SCOTUS opinion of what the Constitution says, etc. will decide what trumps what.

My view is that when you open to the public for business, your property rights do not trump other rights. The societal consensus will determine who is takes the day in this debate.

MTT TL · November 14, 2010, 12:41 PM

Quote:

The Consitution has a catch-all, in the Bill of Rights, down towards the bottom (9th&10 Amendments), however, I repeat, that, your "rights" both defined and undefined in the Constitution, apply only to "you vs. Govt" situations.

They do NOT apply to "you vs. another citizen" situations, legally. Yes, there is some overlap in the principles, but legally they are not the same.

That is not entirely true. Most people are not allowed to violate your civil rights. For example I can't decide to not rent a real estate to Mexicans or not serve Blacks in my restaurant. A corporation, which is given status as an entity can not discriminate either.

Private property rights often trump civil rights however. I can choose not to allow people into my private home for whatever reason I choose, including discriminatory ones. This is because no one else has the "right" to enter my private home or property.

If I decide to open my home to the general public for whatever reason I generally can't then put up a sign that says "No Jews allowed". In many states you also can not put up a sign that says "no guns" that has any force of law. Some states alow it under certain circumstances and formats. A lot of the case law has not happened yet.

Webleymkv · November 14, 2010, 03:20 PM

Property rights, like almost all other rights, are not absolute. For example, even on a private residence, you can be legally restricted in the type of behavior you may or may not engage in and the manner in which you may engage in it. For example, few would argue against restricting me from exposing myself in my front yard in view of my neighbors or shooting in my back yard when I have no adequate backstop and neighbors less than 100 yards away. Private residences do, however, allow the owner to place more restrictions than a business or other institution that is open to the public. I can, legally, decide that no one of a particular religion, political party, gender, sexual orientation, age, ethnicity, or whatever category I choose is welcome in my residence. I can also, if I choose, require anyone who enters my residence to behave in any way I wish so long as that behavior is not illegal.

A business or other institution that is open to the public, however, does not have quite the same authority as the owner of a private residence. The distinction, as I see it, is that an institution which is open to the public, in effect, invites the public as a whole onto their property while I, while in my private residence, do not. Because of this, the private property rights of a open-to-the-public institution are limited to dictating behavior while on their property. Even then, there are limits on what behavior an institution may dictate, they may not force their patrons or employees to engage in illegal or unnecessarily dangerous activity.

It is, however, a two-way street. While a business or similar institution may restrict my behavior while I am on their premises, they also have certain responsibilities to me as a patron or employee. For example, if I injure myself because I slipped an fell on a wet floor at Walmart, Walmart may be held liable for not ensuring that the enviorment I was invited into was adequately safe. Likewise, unless their policies mirror a law, the responsibility of enforcing those policies falls on the institution rather than the government. For example, McDonald's cannot simply call the police and have me arrested and prosecuted simply because I entered their business without a shirt. The only thing they can do is ask me to leave. If and only if I refuse to leave could they have me arrested and prosecuted (for trespassing).

The crux of this discussion seems to revolve around businesses and other open-to-the-public institution that restrict concealed or open carry on their premises. In my view, carry qualifies as a behavior and thus such institutions do have the right to restrict or prohibit it if they wish. Again, however, it is a two-way street. Such prohibition should not, IMO, carry with it force of law unless the person who violates the policy is asked to leave and refuses (at which point it becomes criminal trespass). Also, the whole point of carrying a firearms for lawful purposes is, in most cases, self-defense and thus ensuring one's own personal safety. I believe that should I be attacked and injured or killed in an institution that prohibits carry, that institution should be able to be held liable for not allowing me to provide a safe environment for myself unless they can demonstrate that they've taken steps to ensure a safe environment themselves such as metal detectors or armed security. Such liability would, I think, cause most of the institutions which prohibit carry to re-think their policies as the majority of such institutions have such policy in place for insurance and liability reasons. In short, it would, in all likelihood, be much cheaper for most institutions to allow patrons and employees to lawfully carry than it would be to provide adequate security.

Rifleman1776 · November 14, 2010, 03:36 PM

I thought this was a discussion about property (land) rights to restrict who can come on your land vs. hunters.
The area where I live has seen tremendous growth in that past 20+ years. Many retirees from other parts of the country have purchased tracts of land for their homes. And many are very jealous of their privacy and/or do not believe in hunting. Much of this land has been posted.
For a long time during hunting season there were fires on many of these properties. They were obviously arson. The fires were termed "grudge fires". They were set by locals who had hunted the land for generations and had come to believe they had some kind of inherent 'right' to hunt it. When they were shut out they reacted badly and set fires. Fortunately this hasn't happened in the past few years.
I understand the frustration. Several years back I found a large area of undeveloped wood lands and used it for hunting. Then one year when I went back it had been largely cleared, roads put in and houses were being built.

Webleymkv · November 14, 2010, 03:52 PM

Hunting rights actually brings up rather complex issues in and of itself. On the one hand, there are several very valid reasons to prohibit hunting on one's property. My grandparents, for example, decided not to let anyone but relatives and close friends hunt on their property after finding arrows in their yard rather close to their house after a particularly irresponsible group of hunters was given permission one year.

On the other hand, some people just like to be jerks, one local man comes to mind immediately. This particular gentleman (and I use that term rather loosely as the term I'd like to use isn't fit for polite conversation) does not allow anyone to hunt on his property simply because he is anti-hunting. While disallowing hunting on his own property is certainly within his rights, he has also been known to scream at hunters on adjacent property (who have permission to be there) in attempts to scare off game and make their endeavors difficult or impossible (an activity that is actually illegal as Indiana specifically prohibits the harassment of lawful hunters). Not suprisingly, this man's mailbox has been knocked over repeatedly. While I don't condone or encourage vanalism, I do find myself lacking any pity for this particularly difficult old man.

RaySendero · November 14, 2010, 03:58 PM

Quote:

Webleymkv wrote:

I believe that should I be attacked and injured or killed in an institution that prohibits carry, that institution should be able to be held liable for not allowing me to provide a safe environment for myself unless they can demonstrate that they've taken steps to ensure a safe environment themselves such as metal detectors or armed security.

I personally agree with you. And would add that, when a business or institution creates these "gun free zones" that they cannot stop someone that is really determined to bring a gun and go postal!

If I were on a jury, I would not buy into the idea that they demonstrated proper steps to provide a safe environment but failed when someone was killed or injured.

November 9, 2010, 12:37 PM	#1
Brian Pfleuger Moderator Emeritus Join Date: June 25, 2008 Location: Austin, CO Posts: 19,578	Private, and other, Property Rights The idea has come up a few times here on TFL that the constitution does not "provide" for private property rights, so I thought we could use a thread to discuss the issue. First, I say that the constitution doesn't "provide" any rights. It acknowledges many of them, and properly... "they are endowed by their Creator with certain unalienable rights".... but it does not "provide" those rights and does not, in fact, even acknowledge them all. Second, the constitution does provide for private property rights under the fourth amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,..." The meaning therein is crystal clear in my reading. You can not be "secure in...persons, houses, papers..." if you have no right to own private property. Third, those private property rights having been acknowledged, it is common sense that there would be "categories", or certain exclusions, exceptions or alterations to those rights, depending on the chosen use thereof. A persons home should be almost completely under their control. Exceptions should be virtually none, subject to the age of majority, until the person violates the only truly "inviolable" personal rights of life and liberty. A person could, for example, require everyone entering their home who is over the age of 18 to have sex with them. Now, they may not have any visitors, but they could make that requirement. Equally, a person could say "No one allowed who is under 85 years old." or who is Caucasian, or black, or female, or male.... or any other stipulation. Additionally, a person should be able to do virtually anything WITH their private property. The prevalence today of entire towns wherein a person cannot even choose the color of their own front door are clear violations of constitutional principles. A private property owner can require that you do not carry firearms on their property. Now, for the more controversial part. Several categories I would like to discuss. A property that is open, truly open, to the public falls under completely different rules. "Pure" public property, such as the town square, are prohibited from excluding races, classes and ages of individuals, among many other qualifications, as we all know. I would submit that a property that is open to the general public, such as under a business front, should fall under these same requirements. If you open a business then that business is, indeed, open. You can not exclude black people or white people or woman or men or old or young.... or those who choose to exercise their constitutional rights, such as carrying a firearm, so long as their INTENT is not to disrupt your business. Note that carrying a firearm would virtually never qualify under this "intent" clause, except for the fairly obvious exception of violent intent. I mean that more to the effect that someone could not carry signs in your store about how crappy your pizza is, etc.... These public places can not violate your "public" rights, including the right to carry a firearm. I would submit that the rights of the owner of a business to control their employees general behavior does not qualify under the general "open" category of the business property. The employees are not there as customers. They are under the direct control of the business owner, and voluntarily so, and are therefor subject to whatever rules (restricted by the inviolable rights) that the owner should desire. Employers have the right to control their employees, to a very great extent, including restricting the carrying of firearms while on company time. I would submit that religious, or any other private, organizations are not "public" and therefore qualify under the same rules as private property ownership, with the caveat that the rules are made rather than by a single homeowner or family but by the entire membership of the organization. Virtually all "membership" type organizations would fall under this category. The KKK can exclude black membership. A church can prohibit homosexual members. The Black Panthers can exclude white members. Moreso than just "membership", these organizations can prohibit the very presence of any person or person(s) at any time and for any reason and can create whatever "qualification" on the presence of any individuals at any time. Point being, general constitutional protections of "public" property do not apply. Once again, the only prerequisites are the "inviolable" rights of life and liberty. These organizations can require that EVERYONE entering their property be armed or that NO ONE entering their property be armed. Note: When absolutes are used above, I generally mean what "should be", not necessarily the current status under judicial decisions. What say you? __________________ Nobody plans to screw up their lives... ...they just don't plan not to. -Andy Stanley Last edited by Brian Pfleuger; November 9, 2010 at 12:42 PM.

November 9, 2010, 01:46 PM	#2
44 AMP Staff Join Date: March 11, 2006 Location: Upper US Posts: 28,817	I'm afraid I have to go with the property owners on this one While we have the right to keep and bear arms, that right is not absolute, and has always been subject to limitations. Our right to carry arms does not trump the right of the property owner to restrict such activities. Even in a "public" area. Since those bearing arms are not a defined public class, such as race, gender, age, etc. the law does nothing to force the property owner to place our right to arms above his right to control his property. And that includes businesses. True a business owner should not bar the carry of arms by peaceful people, but, sadly, today, one cannot usually determine the intent of an armed individual until too late if their intent is evil. And, also, today, were a property owner can be found legally liable for the actions of others on his property (rightly or wrongly) it makes poor business sense to expose oneself and one's business to those risks. I have always felt that a property owner who denies the right to arms assumes the moral responsibility for our safety. But under current law, they do not assume the legal responsibility, rather just the opposite. You have the right to free travel, but you cannot trespass. You have the right to swing your fist, but it ends at my nose. All our natural rights are legally limited in some fashion or other, and it is that limitation that allows society to function. If I have a business, open to the public, I could allow any kind of legal peaceful behavior by my customers, but if I choose not to, for any reason, I have that right. Outside certain narrowly defined circumstances, the law does not force me to do so, should I choose otherwise. And, I believe that is as it should be. The majority of our codified rights are limited in regard to what the government may pevent us from doing. What a private property owner (even when said property is open to public access) is something else again. You have the right to free speech, free from government censorship, but you do not have the right to exercise it on MY property, unless I agree. __________________ All else being equal (and it almost never is) bigger bullets tend to work better.

November 10, 2010, 12:45 PM	#3
BlueTrain Senior Member Join Date: September 26, 2005 Location: Northern Virginia Posts: 6,141	Well, actually you don't even have the right to swing your fist at someone. That constitutes assault. If you connect, then it's assault and battery. It is interesting that the first post mentioned rights "endowed by their Creator," while the last mentioned "natural rights." But I don't suppose we have to be limited to one or the other. All references to rights in various documents during the age of revolution, as we might call it, were put there in response to events that had happened in recent history, within the memory of most of the people involved. One might even go so far as to say they were all bad things that people didn't want to have happen again. Many of them concerned property. Owning property is what could be called a private liberty, same as "being secure in your person, property, etc." Carrying a gun while in your own house might be a private liberty (carrying one in the bathroom might be a very personal liberty) but carrying one anywhere else might be called a public liberty. That's sort of the difference we are speaking of here, I think. That is even ignoring mention of the word militia, which keeps cropping up here and there ever so inconveniently. It is a fine line, this particular issue. Curiously, one of the places I know of that has a sign forbidding loaded guns is an indoor shooting range. __________________ Shoot low, sheriff. They're riding Shetlands! Underneath the starry flag, civilize 'em with a Krag, and return us to our own beloved homes! Buy War Bonds.

November 10, 2010, 01:04 PM	#4
Wag Senior Member Join Date: October 22, 2010 Location: Albuquerque, NM Posts: 988	Excellent analysis so far. My 1/50th of a dollar's worth: The Constitution does nothing to reference the rights you have with regard to how you manage your personal property, it only refers to the rights you have which are not going to come under jeopardy by the federal government. States may institute various rules about how you're going to be restricted with regard to your property and some activities are going to be illegal and necessarily so. However, those restrictions should be minimal. Businesses are not public, they are private. The owner of the property only invites people to come in or not, their choice. As it is the choice of the customer or prospective customer to come and go, they have the option of NOT going into that place of business. Ergo, if they don't like the rules of the property owner, they can stay out. And they should, frankly. Constitutional protections generally end at the front door of the property owner. Just as we don't have free speech rights on this forum (and rightly so), we don't have the right to carry a gun into a location where the owner has forbidden them, even if that is a place of business with the door open to the public. As soon as someone walks across the property line, he is no longer part of "the public" but a guest of the establishment who has agreed to the rules of imposing his presence therein. I do see the efficacy of the prior discussion, however. I think it may be a tough one, though. --Wag-- __________________ "Great genius will always encounter fierce opposition from mediocre minds." --Albert Einstein.

November 10, 2010, 04:40 PM	#5
BlueTrain Senior Member Join Date: September 26, 2005 Location: Northern Virginia Posts: 6,141	Although it is entirely possible, I somehow don't think the delegates to the constitutional convention had this sort of thing in mind when they thought about private property. As I read this thread, I get the idea that some people would like to either carry their gun anywhere they wanted or, alternatively, exclude anyone they didn't like from their place of business. One of the first problems faced by the Confederation was dealing with people who thought they had been wronged when they had been serving in the army during they revolution. They returned home after the war to find their property sometimes confiscated and themselves deeply in debt. They believed that they were due some relief from the government and took it upon themselves to do something about it. In other words, it was about their own private property over which grievances arose. At the time, if you were in debt and could not pay, you got thrown in debtor's prison. The immediate question was whether or not you could essentially stage a revolution to solve an injustice like that. Since they had just finished doing that, they saw no reason why they couldn't do it again. Who says it's always the national government that can be tyranical? It was with things like that in mind that the constitution was written and coincidentally, most of the people at the constitutional convention had been in on the articles of confederation, too, so they had been through it before, in a way, only that time, the crowd that wanted a stronger central government got more of what they wanted. It should be no surprise that many of the points of every document written during this period, and their were many, enjoyed a lively argument before things eventually got signed by the state delegates. But I guess not everything got settled after all. __________________ Shoot low, sheriff. They're riding Shetlands! Underneath the starry flag, civilize 'em with a Krag, and return us to our own beloved homes! Buy War Bonds.

November 12, 2010, 04:46 PM	#9
tyme Staff Join Date: October 13, 2001 Posts: 3,355	Yeah, on the way out, not on the way in. And only if the customers don't know their rights. As you pointed out, the establishment has to have some suspicion that the customer shoplifted before they search or detain against the customer's wishes. Otherwise they risk lawsuits. The 4th amendment articulates the notion of private property vs the government, not private property vs other private persons (real or artificial). They may try to forbid people from bringing bags into a store (not very effectively), to prevent people from having a place to hide shoplifted items upon exit, but I've never heard of store management searching bags at store entrances. __________________ “The egg hatched...” “...the egg hatched... and a hundred baby spiders came out...” (blade runner) “Who are you?” “A friend. I'm here to prevent you from making a mistake.” “You have no idea what I'm doing here, friend.” “In specific terms, no, but I swore an oath to protect the world...” (continuum) “It's a goal you won't understand until later. Your job is to make sure he doesn't achieve the goal.” (bsg)

November 12, 2010, 05:05 PM	#10
BlueTrain Senior Member Join Date: September 26, 2005 Location: Northern Virginia Posts: 6,141	Upon reflection, I believe there are businesses that attempt to restrict entry by the general public, and I'm referring to stores that sell merchandise. That is sometimes the case with stores that sell things like jewelry or other high value items, especially if the store is in a low value neighborhood. Asking people to wear shirts is merely the expectation of conventional standards of decency, whether or not you agree with the standards. The constitution indeed grants some rights and confirms others, although it is not always explicit in the distinction. But the expression "life, liberty and pursuit of happiness" pops up as natural rights. A contemporary expression said "property" instead of "happiness," which I think is an unfortunate substitution in spite of the beauty of the expression. I wish I'd written it myself. If the Puritans had written it, they probably wouldn't have said happiness. As it is, it would have been nice if all the assumptions had actually been given but more likely, that wasn't the point of the constitution. It was intended to be a working document to create an entirely new, or practically new, form of government, one that worked better than the one they'd been getting along with previously. The United States (and a few others) are, or is, unique in being formed from at first a lot of formerly almost entirely independent governmental entities. They certainly had different histories, though they all spoke the same language (barely) and had the same colonial relationship with the mother country. Did you ever notice how some countries are "mother countries" while others are the "fatherland?" I think it took a while to get over that sense of separateness and the war itself probably made the biggest difference. There are still differences, of course. The one I heard the most about when I was growing up was about "those out of state drivers." I think that ultimately the 2nd admendment is a weak reference as a right to carry a concealed weapon (to get to the heart of the matter), and the whole matter is better dealt with at the state level with more direct reference to firearms and none at all to the militia, which is only confusing things at the national level. I'm not saying that's an easy solution but it already seems to be working in some places, as it has for years. Just don't look at the constitution as the source for all rights and privileges in this country. It might be an impossible goal in some states or localities but that's the chance you take if you look to state's rights or local rule. The question can also be seen this way. Self defence can be seen as a natural right, as based on your right to life and liberty, and perhaps happiness and property. Even that right seems to be questioned in some places, or so I'm led to believe. But does it follow that means you have a right to own a gun? But if you say yes because of the second admendment, meaning it is a right guaranteed by the etc., then it can also be taken away, because it isn't a natural right, no more than voting. Either way, I think the solution is thorough establishing the legal right at the state level in an unambiguous way. __________________ Shoot low, sheriff. They're riding Shetlands! Underneath the starry flag, civilize 'em with a Krag, and return us to our own beloved homes! Buy War Bonds.

November 12, 2010, 05:32 PM	#11
Wag Senior Member Join Date: October 22, 2010 Location: Albuquerque, NM Posts: 988	Anyone go to a rock or country western concert lately? Especially in the larger venues? They DO search everyone going in. You're not allowed to have even the smallest pen knife. I don't know about the women, but I believe they are required to open up their bags and purses. Comments? Judgments? --Wag-- __________________ "Great genius will always encounter fierce opposition from mediocre minds." --Albert Einstein.

November 14, 2010, 12:18 PM	#15
44 AMP Staff Join Date: March 11, 2006 Location: Upper US Posts: 28,817	The Consitution has a catch-all, in the Bill of Rights, down towards the bottom (9th&10 Amendments), however, I repeat, that, your "rights" both defined and undefined in the Constitution, apply only to "you vs. Govt" situations. They do NOT apply to "you vs. another citizen" situations, legally. Yes, there is some overlap in the principles, but legally they are not the same. Property owner's right to control their property (including the action of people there on), trumps your personal right to do as you wish, while on their property. Period. Even property where the owners encourage public access, such as a business. __________________ All else being equal (and it almost never is) bigger bullets tend to work better.

November 14, 2010, 12:38 PM	#16
Glenn E. Meyer Senior Member Join Date: November 17, 2000 Posts: 20,064	But that is not the law of the land. Business is not free to control your behavior in actuality in many cases. You may want to poop while in the restaurant. They have to provide a place to do such that conforms to health standards. They cannot say that their property rights enable them not to have a toilet. It also a societal judgment. There is no law of physics or mathematics that says that property rights trumps other rights. it is just a consensus that decides which trumps what. The legislative processes interacting with checks and balances, the current SCOTUS opinion of what the Constitution says, etc. will decide what trumps what. My view is that when you open to the public for business, your property rights do not trump other rights. The societal consensus will determine who is takes the day in this debate. __________________ NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens

November 14, 2010, 03:20 PM	#18
Webleymkv Senior Member Join Date: July 20, 2005 Location: Indiana Posts: 10,446	Property rights, like almost all other rights, are not absolute. For example, even on a private residence, you can be legally restricted in the type of behavior you may or may not engage in and the manner in which you may engage in it. For example, few would argue against restricting me from exposing myself in my front yard in view of my neighbors or shooting in my back yard when I have no adequate backstop and neighbors less than 100 yards away. Private residences do, however, allow the owner to place more restrictions than a business or other institution that is open to the public. I can, legally, decide that no one of a particular religion, political party, gender, sexual orientation, age, ethnicity, or whatever category I choose is welcome in my residence. I can also, if I choose, require anyone who enters my residence to behave in any way I wish so long as that behavior is not illegal. A business or other institution that is open to the public, however, does not have quite the same authority as the owner of a private residence. The distinction, as I see it, is that an institution which is open to the public, in effect, invites the public as a whole onto their property while I, while in my private residence, do not. Because of this, the private property rights of a open-to-the-public institution are limited to dictating behavior while on their property. Even then, there are limits on what behavior an institution may dictate, they may not force their patrons or employees to engage in illegal or unnecessarily dangerous activity. It is, however, a two-way street. While a business or similar institution may restrict my behavior while I am on their premises, they also have certain responsibilities to me as a patron or employee. For example, if I injure myself because I slipped an fell on a wet floor at Walmart, Walmart may be held liable for not ensuring that the enviorment I was invited into was adequately safe. Likewise, unless their policies mirror a law, the responsibility of enforcing those policies falls on the institution rather than the government. For example, McDonald's cannot simply call the police and have me arrested and prosecuted simply because I entered their business without a shirt. The only thing they can do is ask me to leave. If and only if I refuse to leave could they have me arrested and prosecuted (for trespassing). The crux of this discussion seems to revolve around businesses and other open-to-the-public institution that restrict concealed or open carry on their premises. In my view, carry qualifies as a behavior and thus such institutions do have the right to restrict or prohibit it if they wish. Again, however, it is a two-way street. Such prohibition should not, IMO, carry with it force of law unless the person who violates the policy is asked to leave and refuses (at which point it becomes criminal trespass). Also, the whole point of carrying a firearms for lawful purposes is, in most cases, self-defense and thus ensuring one's own personal safety. I believe that should I be attacked and injured or killed in an institution that prohibits carry, that institution should be able to be held liable for not allowing me to provide a safe environment for myself unless they can demonstrate that they've taken steps to ensure a safe environment themselves such as metal detectors or armed security. Such liability would, I think, cause most of the institutions which prohibit carry to re-think their policies as the majority of such institutions have such policy in place for insurance and liability reasons. In short, it would, in all likelihood, be much cheaper for most institutions to allow patrons and employees to lawfully carry than it would be to provide adequate security.

November 14, 2010, 03:36 PM	#19
Rifleman1776 Senior Member Join Date: April 25, 2010 Location: Arkansas Posts: 3,309	I thought this was a discussion about property (land) rights to restrict who can come on your land vs. hunters. The area where I live has seen tremendous growth in that past 20+ years. Many retirees from other parts of the country have purchased tracts of land for their homes. And many are very jealous of their privacy and/or do not believe in hunting. Much of this land has been posted. For a long time during hunting season there were fires on many of these properties. They were obviously arson. The fires were termed "grudge fires". They were set by locals who had hunted the land for generations and had come to believe they had some kind of inherent 'right' to hunt it. When they were shut out they reacted badly and set fires. Fortunately this hasn't happened in the past few years. I understand the frustration. Several years back I found a large area of undeveloped wood lands and used it for hunting. Then one year when I went back it had been largely cleared, roads put in and houses were being built.

November 14, 2010, 03:52 PM	#20
Webleymkv Senior Member Join Date: July 20, 2005 Location: Indiana Posts: 10,446	Hunting rights actually brings up rather complex issues in and of itself. On the one hand, there are several very valid reasons to prohibit hunting on one's property. My grandparents, for example, decided not to let anyone but relatives and close friends hunt on their property after finding arrows in their yard rather close to their house after a particularly irresponsible group of hunters was given permission one year. On the other hand, some people just like to be jerks, one local man comes to mind immediately. This particular gentleman (and I use that term rather loosely as the term I'd like to use isn't fit for polite conversation) does not allow anyone to hunt on his property simply because he is anti-hunting. While disallowing hunting on his own property is certainly within his rights, he has also been known to scream at hunters on adjacent property (who have permission to be there) in attempts to scare off game and make their endeavors difficult or impossible (an activity that is actually illegal as Indiana specifically prohibits the harassment of lawful hunters). Not suprisingly, this man's mailbox has been knocked over repeatedly. While I don't condone or encourage vanalism, I do find myself lacking any pity for this particularly difficult old man.