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Old September 29, 2009, 11:10 PM   #26
roy reali
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re:GlenEMeyer

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My position is clear. The right of self-defense and carry, in my view of morality, supercedes the right of the employer to worry about his or her liability. Thus, this right should be enshrined with the same force as others in the BOR. Might we have a constitutional amendment for such - sure. The only exception being highly technical. Thus, the other arguments about current laws would be moot.

What if having guns around violates the morality or religious beliefs of the business owner? What would be more important, his first amendment rights or someone else's second amendment rights?
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Old September 30, 2009, 06:21 AM   #27
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Al, a question and sorry I forgot the legal doctrine of this, but can't contracts be null and void where one party has an unfair advantage over the other? I might be off here but my dim memory recalls such a doctrine.
Contracts may be null and void when one party has an advantage that is akin to forcing the other party sign the contract under less than voluntary conditions. Typical employment is fully voluntary and so would not apply here.

Otherwise, unfair advantage refers to those who don't have the intellectual capacity to be able to comprehend contracts or those who have been duped through dishonesty, or where one party takes advantage of the other because of an inequitable knowledge that the ignorant party has no ability to have in that situation.
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Old September 30, 2009, 08:34 AM   #28
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Originally Posted by roy reali
What if having guns around violates the morality or religious beliefs of the business owner?
What if being female, African American, or Hispanic violates a business onwer's morality or religiious beliefs? See that argument only works in the purely private (as in your home) context. Once you open a business to the public those "rights" are changed. Gun owners are not a "protected class" but I think Glenn (and I) would argue that they should be or that if the business owner denies them the right to carry then the business owner should assume full responsibility for the employee's security.
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Old September 30, 2009, 08:44 AM   #29
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Originally Posted by Double Naught Spy
Typical employment is fully voluntary and so would not apply here.
My thought is that a lot of employment relating to this issue is atypical.

Yes, theoretically we are all free to look for work elsewhere. However, we know that reality is not that cut and dried. Jobs are not always so easy to get and not everyone has the resources to go into business for themselves.

Also, when it becomes "industry standard" for companies of any appreciable size to deny CCW to employees while knowing they are free from lawsuit success if employees are then injured by workplace violence then the "voluntary" part of employment isn't there IMO. Morally, one should not have to choose between safety and feeding your family.

So, most companies deny CCW due to venial concerns about bottomline. Most available work is with said companies in a given community. Is that fully voluntary? I think not.
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Old September 30, 2009, 09:00 AM   #30
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The right to carry a gun is a right the state gives you for property it controls. It's not a right the state can give you over property it doesn't own. Like your driver's license doesn't permit you to drive on private property without consent.
If I look at the number of places excluded in my state, including all state parks, I'd say we have a bigger fight to get the state at least to allow us to carry everywhere it controls before we try to get private property owners to surrender their rights.
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Old September 30, 2009, 09:48 AM   #31
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The state has lots of rules and regulations for property you own.

Please sit on your front lawn naked when the school bus arrives. Please refuse to have working toilets in your restaurant.

Another specious argument that your property is immune from state mandates that contribute to the common good.

TG - handled the specious argument on religion. Go back and google the arguments that occurred during the debate on miscegenation laws and/or segregation. You can find 'preachers' claiming religious reasons for discrimination.
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Old September 30, 2009, 09:53 AM   #32
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Have a restaurant tell the health inspector he is trespassing
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Old September 30, 2009, 10:10 AM   #33
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Originally Posted by mapsjanhere
The right to carry a gun is a right the state gives you
Not a small point but the right to carry a gun is not "given" to me by the state but rather predates the Constitution and the 2A. The state regulates the right if it passes court muster but CCW is not a priviledge (at least not in TN). The state is barred from infringing on that right (a court decides what infringment means) but doesn't give me any right.
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Old September 30, 2009, 08:16 PM   #34
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So, most companies deny CCW due to venial concerns about bottomline. Most available work is with said companies in a given community. Is that fully voluntary? I think not.
Since this discussion is about legal aspects, do you have a citation for legislation or significant court case that defines employment as not being voluntary?
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Old September 30, 2009, 10:28 PM   #35
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Private Property Rights

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The Founding Fathers upheld the economic view of property. They believed that private property ownership, as defined under common law, pre-existed government. The state and federal governments were the mere contractual agents of the people, not sovereign lords over them. All rights, not specifically delegated to the government, remained with the people--including the common-law provisions of private property. Consequently, the constitutional rights regarding free speech, freedom of religion, the right of assembly, and private property rights are all claims that individuals may hold and exercise against the government itself. In brief, private property refers to the rights of owners to use their possessions which are enforceable against all nonowners--even the government.
Our country was founded by men that regarded private property rights above all else. That is the unique experiment that was called The United States of America.
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Old October 1, 2009, 05:36 AM   #36
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Since this discussion is about legal aspects, do you have a citation for legislation or significant court case that defines employment as not being voluntary?
Don't have to. The state regulates the employment contract on a regular basis. Minimum wage, overtime, child labor, OSH, the right to know act, FLSA, EEO, and others.

As to the earlier argument that forcing a property owner violates the 5th Amendment as a taking, I will repeat:

The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, provides that private property shall not be taken for public use without just compensation. The Takings Clause does not prohibit the taking of private property, but instead places a condition on the exercise of that power. It is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.

In addition to outright appropriation of property, the government may effect a taking through a regulation if it is so onerous that its effect is tantamount to a direct appropriation, this is known as "regulatory taking". see Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005).

In Lingle, the Supreme Court provided a framework for addressing regulatory takings. First, a court must determine if the regulation results in one of three types of regulatory takings. These occur: (1) where a regulation requires an owner to suffer a "permanent physical invasion" of the property; or (2) where a regulation completely deprives an owner of "all economically beneficial uses" of the property; or (3) a government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit.

People carrying on your property do not deprive owners of all economically beneficial uses of their property, but do result in an unwelcome physical invasion onto a business owner's property by individuals transporting and storing firearms in their vehicles. It is apparent the invasion onto an employers property is unwelcome if they have corporate policies preventing weapons on property. see Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419(1982)

In Loretto, the Court distinguished temporary physical "invasions" from permanent physical "occupations." The court ruled that an invasion is temporary, while an occupation is permanent.

A physical occupation, as defined by the Court, is a permanent and exclusive occupation by the government that destroys the owner's right to possession, use, and disposal of the property. see Boise Cascade Corp. v. United States, 296 F.3d 1339, 1353 (Fed. Cir. 2002)

People carrying weapons do not force any permanent "physical structure" on an owner's property. Instead, they force an unwanted physical invasion by third parties engaging in an unwanted activity. The invasion itself is not "permanent" because the individuals engaging in the unwanted activity (carrying guns) do not remain on the property at all times, as would an actual physical structure. Nor does CCW cause a "permanent" invasion with regard to a particular parcel of property, such as the public bike paths at issue in public easement cases. In those cases, even if no person ever chose to ride his bike across a public path, there is nevertheless governmental intrusion because that particular parcel of land is stripped of its right to exclude.

If no individuals choose to engage in the activity of CCW, landowners will not suffer unwanted invasions. It is therefore hard to classify the invasion caused by CCW as permanent for purposes of a takings analysis, thus a person who carries a weapon on your property under the law has not violated any of the three prongs necessary to constitute a taking of property under the 5th Amendment.

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Our country was founded by men that regarded private property rights above all else. That is the unique experiment that was called The United States of America.
and where in the founding documents is this written?
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Old October 1, 2009, 05:53 AM   #37
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Don't have to. The state regulates the employment contract on a regular basis. Minimum wage, overtime, child labor, OSH, the right to know act, FLSA, EEO, and others.
Do any classify employment as non-voluntary? None that I can find. Nor can I find any legislation or labor decisions denoting employment is not voluntary because companies are located within a given community.

The only employment I can find as being non voluntary pertains to prison labor and even then whether or not it is actually non voluntary is a bit moot given prisoners aren't supposed to carry guns at work.
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Old October 1, 2009, 06:25 AM   #38
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So if employment is voluntary, as a business owner, I can set up a rule that states all female employees must have sex with me? A rule prohibiting female employees from possessing any item of clothing that covers the breasts? A rule requiring that all employees work one day a week without pay? How about one which requires all employees submit to a daily beating?

Sorry, the "employment is voluntary, so I can do what I want" argument won't fly.
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Old October 1, 2009, 07:00 AM   #39
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More Intrusion?

I agree, the government already regulates and controls private property activities. Some of you want even more intrusion. If some of this administration's plans go through, you'll be heaven then. The government already regulates medical care in this country, why not more then?

I am a border-line liberatarian, I really believe that government involvement in private property matters should be next to zero. If I own a house, a business, or whatever, I pay the taxes, I enjoy the rewards and face the risks, no political unit should tell me who I can have enter my place or not. Yes, its being done now. It doesn't make it right, and forcing more regulations on me won't make it better.

By the way, read the Federalist Papers if you want to know what our forefathers thought about private property.

One more point. I don't see anyone here upset about gun bans in Federal Buildings. Why not? Those, at least, are public institutions.
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Old October 1, 2009, 07:24 AM   #40
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Financial Risks?

Some of you here mention that there would be no financial risk to a business owner by allowing employees to carry guns. I hate to inform you, but you are wrong. I used to work in the insurance industry. There is something called workers' compensation. Here is a link to prove my point.

http://www.workerscompensation.com/c....php?news=4558

If a workplace gun results in a workplace injury, guess who will be dinged with added insurance premiums. Some workers' comp carriers already raise rates when guns are involved.
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Old October 1, 2009, 08:42 AM   #41
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It's always interesting when people look for the narrowest interpretation of one right to allow the broadest of another. If you go by SCOTUS, you have no right to conceal carry to begin with, you barely have a right to own a gun for home defense, and that only since Heller.
But here's another case: Does you local pastor have the right to ask you not to wear a gun to church? After all, he has a sign "come on in" at the front, he's invited you, public space and all.
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Old October 1, 2009, 09:52 AM   #42
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Quote:
Originally Posted by Double Naught Spy
do you have a citation for legislation or significant court case that defines employment as not being voluntary?
Not sure you are asking the right question. There is the theoretical and the real. Theoretically, I can quit and move from job to job as I see fit. The reality is not that. Contracts, economic conditions and various other factors may determine how "free" I am to move about employment wise. I think a good place for you to look might be the National Labor Relations Act of 1935. I think that shows that workers have some say in the deal and the employer is not always right.

Quote:
Originally Posted by Bella
Some of you here mention that there would be no financial risk to a business owner by allowing employees to carry guns. I hate to inform you, but you are wrong. I used to work in the insurance industry.
I too used to work in that industry and sold Worker's Comp policies. Your link does not really shed any light on the argument. The article is aimed at those who carry to work, hurt themselves and try to claim Worker's Comp. The cases cited revolve mostly around law enforcement and the one case where a man shot himself the claim was denied. All injuries so claimed and approved on the job raise Worker's comp rates and firearm injuries would not do that any more than any other types of injuries. Where the risk is to the employer is General Liability even though a policy against CCW would probably not help the employer against third party lawsuits.

Quote:
Originally Posted by mapsjanhere
If you go by SCOTUS, you have no right to conceal carry to begin with, you barely have a right to own a gun for home defense, and that only since Heller.
Not sure what you mean by "barely". You have the right or you do not. As I have stated before the courts don't "give" you rights rather they interpret laws as to whether they are an infringment on a right. Big difference.

Quote:
Originally Posted by mapsjanhere
Does you local pastor have the right to ask you not to wear a gun to church?
He may certainly ask.
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Old October 1, 2009, 11:09 AM   #43
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Quote:
Originally Posted by mapsjanhere
If you go by SCOTUS, you have no right to conceal carry to begin with,
Um, no. Actually, prior cases have dealt with State regulation of concealed carry, and not carry (bearing) in a general sense. Add to this, that such cases were all before Heller and (the current) incorporation (case).

The current legal landscape. as regards gun rights, is in flux.
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you barely have a right to own a gun for home defense, and that only since Heller.
Barely? Hardly.

Heller's central holding was unequivocal. People have the unadorned right to keep firearms, within their homes for all lawful purposes, including self-defense. Included in that class of arms, firearms, was the subclass of handguns that a government could not ban, as handguns are demonstrably the weapon of choice for self-defense.

With McDonald being granted cert, the question is now broadened to include all people, not just those who live in Federal enclaves.

The question is not if the 2A will be incorporated, but by what manner the incorporation takes place (there is another thread that this aspect can be discussed, here).
Quote:
Originally Posted by Bella
Some of you here mention that there would be no financial risk to a business owner by allowing employees to carry guns.
Any such liability is actually a two part question. What liability if the employee is allowed only to store her arm(s) within her vehicle? as opposed to carry within the workplace itself. Add in that the State has mitigated employer liability in the former case, and the employer is still allowed to restrict personal carry within the actual job.

An employee may still leave the workplace, get a gun and return to cause havoc. That scenario has not been eliminated. It can not be foreseen and the employer's liability is the same, guns in the parking lot or not.

The fact that insurance companies might raise rates do not necessarily make a valid claim by the employer. Especially since insurance companies are want to raise rates at any pretext (seemingly real or not).
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Old October 1, 2009, 06:05 PM   #44
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Those of you that feel that private business owners should be mandated to allow guns are not that different then the Boxer's, the Feinstein's, the Brady's, or any of their kind. Different political ideas, same shove it down your throat mentality.
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Old October 1, 2009, 06:15 PM   #45
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Quote:
Originally Posted by lizziedog1
Those of you that feel that private business owners should be mandated to allow guns are not that different then the Boxer's, the Feinstein's, the Brady's, or any of their kind. Different political ideas, same shove it down your throat mentality.
How is my right and desire to protect myself shoving anything down anybody's throat?

Would you concede that business owners who forbid law-abiding citizens CCW be financially liable for crime that then injures said employees who didn't carry?

If not then I submit you are not offering a just position.
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Old October 1, 2009, 07:11 PM   #46
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Quote:
Those of you that feel that private business owners should be mandated to allow guns are not that different then the Boxer's, the Feinstein's, the Brady's, or any of their kind.
I am not advocating that a business owner be mandated to allow carry. I am stating that:

1 If a property owner open a business on that property, thereby opening that property to the public, then the owner has certain obligations to the public. If the owner wishes to deny me my ability to effectively defend myself, then the owner is now responsible for providing that protection. If I am attacked while defenseless, and the property owner has not provided security, then I should be able to sue for damages.

2 No one is forcing a property owner to open a business on your property, therefore no one is forcing you to allow a firearm on your property.

3 Comparing this to healthcare is a strawman argument. Comparing a law that would prevent you from dictating what is in my pants is far different from mandating that you pay for another's healthcare.
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Old October 1, 2009, 10:21 PM   #47
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I open a small business on my property. I am also a pacifist, I do not want any weapons on my property. No government entity should dictate different to me. Yes, if someone is injured through any actions or inactions of mine, then we go to civil court. Then we leave up to a jury.

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Old October 1, 2009, 10:26 PM   #48
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I'll Ask Again

Not too far here there is a BLM office. There is a large sign at the front door that no weapons may be brought into that building. It is a Federal building.

I am a tax payer and taxes go to upkeep, utilities, and paychecks involved with this entity. In other words, I, along with all of you, own it. It is a public facility. Where is the outcry on their gun ban? Why the outrage towards a private owner of property?
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Old October 1, 2009, 10:34 PM   #49
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Quote:
Originally Posted by lizziedog1
Yes, if someone is injured through any actions or inactions of mine, then we go to civil court.
Fair enough. As to pacifists, IMO there are very few of those who truly are but that is another thread

Quote:
Originally Posted by roy reali
Where is the outcry on their gun ban?
Lots of it around here. I only accept courthouses because they have metal detectors and armed bailiffs. Locally, I have always opposed any and every CCW restrictions in parks and all public spaces.
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Old October 1, 2009, 10:46 PM   #50
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re:TennesseeGentleman

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Lots of it around here. I only accept courthouses because they have metal detectors and armed bailiffs. Locally, I have always opposed any and every CCW restrictions in parks and all public spaces.
I agree, in public areas, there should be no carry restrictions towards those that have legal right to do so. In fact, if a person can legally own a firearm, I believe that no permit, license, or any requirement should be mandated by any government entity for that person to walk around armed.
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