A shopkeeper told me I couldn't wear my cross into his store. Then called the cops.


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Maelstrom
December 1, 2008, 12:26 PM
Actually, it didn't happen. Until I really gave it some thought, I've always supported the "Private property rights trump constitutional rights" theory. As we know, it is often the argument given to when a person is denied entry into, or thrown out of, a public establishment.

I've always been OK with that. I may think that the manager is being ridiculous but it's the right of the owners, right?

But what if it were applied to other Constitutional rights? Such as the right to worship freely, or the right to unreasonable search and seizure (stores often have signs saying they can search your bags, but can they randomly seize things they find inside?)

So, replace "cross" with "gun" and why does the argument change? No shop would ever be allowed to do this.

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ccsniper
December 1, 2008, 12:31 PM
yeah, they would. and they do. there are gas stations, restaurants and other privately owned institutions out here that have signs on the door, "No concealed carry" i used to work at one. but what was funny, the owner is a complete gun nut and carries himself.

Beagle-zebub
December 1, 2008, 12:37 PM
I don't see why a store shouldn't be able to stop you from carrying on their property--it is, after all, their property. (I don't take this to mean that they can confiscate the offending property of yours when it is on their premises, however.)

Someone is going to say that the right to carry is a constitutionally enumerated right, to which I say that the right to freedom of speech is as well, and that if you're ever on my property, I'll throw you out for voicing the aforementioned objection.

The individual rights in the Constitution are so-called "negative rights," meaning that they arise from what they restrict the government from doing.

Maelstrom
December 1, 2008, 12:46 PM
So a "NO CHRISTIANS ALLOWED" sign is O.K. by you guys? After all, it is their property.

How about "NO COLOREDS", does that look familiar to anyone?

JohnBT
December 1, 2008, 12:47 PM
"A shopkeeper told me I couldn't wear my cross into his store. Then called the cops."

If you didn't leave when asked you were tresspassing.

Anything else we can clear up for you?

John

nalioth
December 1, 2008, 12:48 PM
I think this is off topic here, and it has also been covered enough previously.

Store owners have the right to refuse service to anyone.

If you don't like that they refuse service on the basis of religion, ethnicity or fashion choices or any other reason, don't patronize them or sue them.

ServiceSoon
December 1, 2008, 12:48 PM
It is different with guns because of an emotional reaction that guns can kill people.

Maelstrom
December 1, 2008, 12:49 PM
Store owners have the right to refuse service to anyone.

Do they? Similar thinking was trumped in Florida recently.

Mp7
December 1, 2008, 12:53 PM
If i had a store iŽd prefer both guns AND crosses to stay out.

On the other hand: i want to spearate those people from their
money... so i better let them in. :)

General Geoff
December 1, 2008, 12:54 PM
So a "NO CHRISTIANS ALLOWED" sign is O.K. by you guys? After all, it is their property.

How about "NO COLOREDS", does that look familiar to anyone?

It's certainly the property owner's right to discriminate against anyone for any reason. There are certain laws that regulate what open-to-the-public businesses can discriminate against, but for private property, anything goes.

Racism and antichristianism (if there is such a word) are not illegal.

velojym
December 1, 2008, 12:56 PM
Yeah. It's a shame, a bunch of bureaucrats and politicians telling folks what they may or may not allow on their own property. As for the OP, I'd have to say that the shop owner disallowing Christians' display of their chosen symbol would alienate a huge chunk of the American population. That's the owner's choice, though, and his business will prosper or wither based on his or her choices.

That is... unless they're well connected enough to demand taxpayer bailouts. Then all bets are off.

crebralfix
December 1, 2008, 12:59 PM
How does a law trump a right?

Please show me where "property RIGHTS" are enumerated in the Federal Constitution and your State Constitution.

Additionally, please outline the laws of your state that state this.

In other words, prove it. These threads keep coming up and I never see any proof in law...just a bunch of opinions.

General Geoff
December 1, 2008, 01:10 PM
crebralfix, this all falls under the basic concept of property. There is no enumerated right to life, or to breathe, or to travel. Yet they all exist, to one extent or another.


Read up on the concept of property, then come back and ask your question if it still doesn't make sense to you.

misANTHrope
December 1, 2008, 01:16 PM
Please show me where "property RIGHTS" are enumerated in the Federal Constitution and your State Constitution.

Irrelevant. The Constitution is not an exhaustive list of individual rights.

MGshaggy
December 1, 2008, 01:16 PM
How does a law trump a right?

Show me where in the constitution you have a 2nd amendment right applicable against a private (non-governmental) actor.

velojym
December 1, 2008, 01:20 PM
Anything not specifically enumerated for the GOVERNMENT by the Constitution is specifically reserved by the 9th Amendment.
In other words, a vast majority of the laws on the books right now are constitutionally illegal.

Not that TPTB care, though.

Maelstrom
December 1, 2008, 01:24 PM
Show me where in the constitution you have a 2nd amendment right applicable against a private (non-governmental) actor.

Heller just cleared that up, stating 2A exists for self-defense as well.

BBQLS1
December 1, 2008, 01:27 PM
It is different with guns because of an emotional reaction that guns can kill people.

For some people you could say the same thing about other races.

I'm not really sure how I feel about this. On one hand, you have the rights of the property owner, but on the other if it's open to the public.....I don't think you should be allowed to restrict based on ones race, religion, or doing something that is generally completely legal such as CCW.

MGshaggy
December 1, 2008, 01:32 PM
Heller just cleared that up, stating 2A exists for self-defense as well.

Fail.

You apparently didn't read Heller, or didn't fully understand it. The right protected in Heller is only applicable against the federal government. So far, it is still not effective against the states or local municipalities, and most certainly not against non-governmental actors or entities.

6_gunner
December 1, 2008, 01:36 PM
Personally, I wouldn't want to support a business that doesn't like "my kind." I'd rather them post warnings so that I know what businesses to avoid.

That's something I've never understood about people who want to make it illegal for businesses to discriminate against them. If a store or restaurant doesn't want me around, I'll take my money where I'm welcome. Why would anybody want to give their money to someone who would kick them out of their establishment if they had the choice?

cassandrasdaddy
December 1, 2008, 01:37 PM
Actually, it didn't happen.

best part of the post


ever seen a "no colors " sign in a bar?
dress codes bother you as much? they actually happen

mp510
December 1, 2008, 01:41 PM
Public accomodations are specifically prohibited frrom discriminating on grounds of religion in the civil rights act. The same does not protect those who choose to exercise their right to bear arms.

Sinixstar
December 1, 2008, 01:55 PM
So a "NO CHRISTIANS ALLOWED" sign is O.K. by you guys? After all, it is their property.

How about "NO COLOREDS", does that look familiar to anyone?


My mother and I have both had problems with wearing symbols of... shall we say "alternative" religions - in certain places.

It happens.

Maelstrom
December 1, 2008, 02:10 PM
Public accomodations are specifically prohibited frrom discriminating on grounds of religion in the civil rights act. The same does not protect those who choose to exercise their right to bear arms.

DING DING DING! WINNER!

Now the question is. Why? And more importantly, can the protections afforded other rights be applied to the second?

Maelstrom
December 1, 2008, 02:13 PM
Fail.

You apparently didn't read Heller, or didn't fully understand it. The right protected in Heller is only applicable against the federal government. So far, it is still not effective against the states or local municipalities, and most certainly not against non-governmental actors or entities.

From DC Circuit, which was upheld by SCOTUS.

Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.

From Scotuswiki:

Therefore, the District of Columbia's handgun ban is unconstitutional, as it "amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense". Similarly, the requirement that any firearm in the home be disassembled or bound by a trigger lock is unconstitutional, as it "makes it impossible for citizens to use arms for the core lawful purpose of self-defense".

And from the Supreme Court decision itself:

The prefatory clause does not suggest that preserving
the militia was the only reason Americans valued the
ancient right; most undoubtedly thought it even more
important for self-defense and hunting.

Un-fail.

cassandrasdaddy
December 1, 2008, 02:17 PM
DING DING DING! WINNER!

Now the question is. Why? And more importantly, can the protections afforded other rights be applied to the second?

fail
if he can see your cross/gun it falls under the same category as wearing colors

MGshaggy
December 1, 2008, 02:31 PM
Maelstrom -

:banghead:

Read the opinion itself, not the Wiki'ed cliff notes version. The parts you quote are non-sequitors and do not in any way advance your position. If you read the opinion carefully (and the lower court cases), you'll hopefully understand the issue a bit better.

When the court says "the District" its referring to the District of Columbia, a federal enclave under federal jurisdiction. Where the court says the District's ban is unconstitutional, it means the right cannot be denied by a federal enclave. It has nothing to do with private parties or state/local/municipal government actions.

Zoogster
December 1, 2008, 02:38 PM
Religions are often a bundled group of morals and values. Some people may choose not to adhere to or follow the principles of the religion they choose, but itself would show a lack of conviction for thier beliefs.
Someone specificly choosing to wear a symbol that states such beliefs, and then not adhering to the beliefs they choose to adamantly state to others would clearly be a hypocrite.


If someone chooses to be a part of a group that espouses certain values that will impact decisions they make in thier life, and then chooses to advertise to other people they have those values with symbols, it becomes a very legitimate basis for some discretionary judgement.
If I was to put on clothing or a tattoo that said I was a member of a certain gang or organization with certain views, that would be a legitimate thing to judge me on that I choose to inform you of.
If I choose to wear a piece of clothing or jewelry that states I am from a group with certian beliefs, then you can judge me on it.
If someone made a religion that espoused beliefs that it was okay to steal because everything is of the earth, and the earth belongs to no individual, but to everyone...and someone wore a symbol stating that was a religion they were a part of, would you want them in your store?
It would be your right to ask the very likely thief to leave.
You would be basing your decision on core beliefs they chose to make you aware of through the advertising of thier religion to you.


Religions are often core values people base many decisions on. If you cannot judge a person based on thier core values, values they choose to make known to you by clearly stating it with clothing, jewelry, customs etc then people really have no freedom.




The government is forbidden from discriminating based on such things, private parties are not supposed to be. The government is forbidden from passing laws that restrict or infringe on the right to keep and bear arms. Private businesses and homes still have the right to discriminate.
To me that means no law should exist that create legal punishment for someone carrying concealed against the wishes of a private party, as that would be the government taking an active role in infringement on the behalf of the private party.
At the same time that private party can ask them to leave for any reason at any time. Refusal to leave is tresspassing. Whether it is because they don't like thier breathe, thier religion, thier carrying of a gun, thier clothing etc
So 'no gun' signs should always be unenforceable legaly, but the business can and should be able to bar anyone entrance or have anyone leave if they become aware of a customer doing something they do not want done. Whether that is wearing the wrong color, thier possession of a firearm becomes known, or they have a symbol that states certain beliefs on them.

This may of course become a serious issue when most businesses in the future have cameras that can detect concealed weapons. Such cameras already exist and are being used in some nations. They will become cheaper every year.
http://www.cnn.com/2008/WORLD/europe/04/16/camera.england/index.html

Maelstrom
December 1, 2008, 02:41 PM
Well then. Perhaps I was wrong. I had been under the impression that turning away customers with the phrase, "We don't serve negros here" had been outlawed.

Wouldn't be the first time and it won't be the last time I've been wrong.

That being the case. Suck it up. Stop whining about not being able to carry!:D

misANTHrope
December 1, 2008, 02:52 PM
DING DING DING! WINNER!

Now the question is. Why? And more importantly, can the protections afforded other rights be applied to the second?

This is where it's important to draw a distinction between the way thing should be (which becomes personal opinion), and the way things are.

My personal view is that business owners ought to be able to reject any customer they wish, for any reason they wish. From that starting point, it follows that a business owner would have the right to prohibit carry within his store.

But, as I mentioned, that is the way things should be, according to my views. But it's not the way things are.

Since legal precedent has been made that businesses open to the public are treated differently than true "private property," it would seem that there is a starting point for forcing them to permit carry- if one can elevate carry to the same legally protected level as race.

So legally speaking, there is a precedent by which one might choose to pursue this, though I'd say the chances of success are slim. Personally speaking, though, I will not support such a thing, because it conflicts with my views on government and property rights.

Zoogster
December 1, 2008, 03:08 PM
Since legal precedent has been made that businesses open to the public are treated differently than true "private property," it would seem that there is a starting point for forcing them to permit carry- if one can elevate carry to the same legally protected level as race.

I feel the same way, either people have those property rights in a business or they do not. If they cannot ask someone to leave because they come in with a shirt calling for a human sacrifice for thier religion, then they shouldn't be able to treat the 2nd differently.
If they cannot ask someone to leave because of the First Amendment rights, they shouldn't be able to over the Second Amendment rights.

There is precedent that business owners have no rights some places. "Ladies night" is illegal as it disciminates based on sex in some states. No double standards.
Smoking is outlawed some places, even if the customer and the business owner want to do it. They simply have no power over thier private property to allow it.

Some companies even have racial or sex based hiring qoutas that so many minorities or women must be hired even if they are not applying in those percentages, or are less qualified.
Clearly that is discriminatory based on sex and race. It means some qualified people will be overlooked, to be certain black Joe in accounting is replaced with another minority rather than a white person to maintain a certain ratio.
Yet as a private entity they should be able to do whatever they want.
However if they can do that, then the opposite would be their legal right as well, yet some places it is not.

So people have clearly caused a lot of issues in recent times by removing some property rights, setting double standards and citing constitutional rights as thier logic.
Either the entire Constitution, which was originaly only a restriction on government is applied, or none of it. You don't choose to keep the First Amendment, cite the constitution or constitutional law as the basis, and then pick and choose to allow people excercising the Second Amendment.

I think property rights mean they can choose who is on thier land for any reason. Yet if exceptions are made in law and the reason cited is Constitutional law, then all of the standards should apply.

MGshaggy
December 1, 2008, 03:11 PM
I had been under the impression that turning away customers with the phrase, "We don't serve negros here" had been outlawed.

Oh it has (see the Civil Rights Act of 1964, et seq.). But no similar statute exists with respect to federal gun laws.

Maelstrom
December 1, 2008, 03:15 PM
Odd. A number of people here said that shopkeepers are free to discriminate for whatever reason they wish. Surely someone must be mistaken.

no similar statute exists with respect to federal gun laws

My point exactly. Can it be argued?

Dr. Peter Venkman
December 1, 2008, 03:17 PM
Natural law should always trump that of society's, less everything else is seperate but equal.

MGshaggy
December 1, 2008, 03:28 PM
My point exactly. Can it be argued?

I don't think its arguable that no such law currently exists, but the government certainly enact such legislation given enough political will to do so.

Just don't expect it under the next administration, however.

Maelstrom
December 1, 2008, 03:36 PM
I'm not looking to argue for a new law. I was thinking bigger. Like, Constitutional-type bigger.

Discrimination was banned under federal law, but it was determined to be unconstitutional first, wasn't it?

Bubba613
December 1, 2008, 05:00 PM
Odd. A number of people here said that shopkeepers are free to discriminate for whatever reason they wish. Surely someone must be mistaken.
As pointed out, shopkeepers can discriminate on certain grounds but cannot on other grounds. A shopkeeper telling a Muslim and his wife to leave solely on those grounds is opening himself up to a lawsuit. A shopkeeper telling same couple to leave after they start haranguing about American devils is perfectly OK.
A shopkeeper's property is not private but exists as a privilege granted to him by the state. Therefore the state can dictate certain standards. That is not the same as the shopkeeper's residence, where he can kick anyone off for any reason, including he hates coons or whatever.
Gun owners are not a protected class under the law. If a store owner wants to exclude people carrying guns, he is perfectly entitled to do so.

Dashman010
December 1, 2008, 11:38 PM
Just for reference so put the issue to rest, a shop owner cannot refuse service in a store or restaurant on the basis of religion. See below:

Civil Rights Act of 1964
TITLE II--INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION
SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

It's also important to note that this is not a constitutional issue, because it involves private actors and not the state. The 2nd amendment would be inapplicable to this case.

moi_self26
December 1, 2008, 11:46 PM
You are not ENTITLED to someone else's property. A business is property of the the owner, they should have complete control over it. The same way I came into your house and said something that ticked you off, you should be able to boot me out, the business owner should have the same rights. If the people in the area don't like the way the owner conducts business, then they won't go, and the business will fail. The success or failure of that business is solely on the shoulders of the owner, and he is the one who will suffer if it fails, so all decisions should be left up to him.Free market rocks! You have many rights, free speech, religion, gun carry, it doesn't matter what the right is..... just because you have the right to do it, doesn't mean you can do it on someone else's property.

M203Sniper
December 2, 2008, 12:16 AM
Just for reference so put the issue to rest, a shop owner cannot refuse service in a store or restaurant on the basis of religion. See below:

Civil Rights Act of 1964
TITLE II--INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION
SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

It's also important to note that this is not a constitutional issue, because it involves private actors and not the state. The 2nd amendment would be inapplicable to this case.

So what if I worship Colt's?


Can Gaston Glock be a saint?

expvideo
December 2, 2008, 03:27 AM
I'M IN BEFORE THE LOCK AND I'M TYPING IN CAPS!!! I RULZ!!!!11!!!

Seriously, this topic is like beating a dead horse, but at least we get to yell at eachother.

I think property rights vs. personal rights will always be a hot discussion, and it will always lead to bickering.

Oh and just to prove the rule... Nazis!!! Think about the Nazis! Hitler was for the same things you just said, or something like that! This is just like the Nazis!

Can this be locked already?

expvideo
December 2, 2008, 03:29 AM
Pardon my ranting; I'm tired. I think I'm going to call it a night. Carry on.

Gray Peterson
December 2, 2008, 05:30 AM
http://supreme.justia.com/us/378/226/

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=public&navby=volpage&court=us&vol=379&page=311

http://supreme.justia.com/us/378/130/case.html

Trespasses due to racial discrimination are unlawful and unenforceable under the two above Supreme Court decisions in regards to the Civil Rights Act of 1964. Until there's a new Civil Rights Act with similar language as applicable to the carrying of personal firearms to where a state law enforcer can be subject to federal criminal charges if they enforce a trespass due to gun possession, the current protections based on race, gender, and religion will not apply to gun owners in the same manner.

Double Naught Spy
December 2, 2008, 07:59 AM
But what if it were applied to other Constitutional rights? Such as the right to worship freely

What if I come into your shop and practice my religion which involves the sacrifice of a goat via blood letting (slicing the throat). You got a problem with that? What if my religion involves me and a bunch of guys coming into your shop, laying down our prayer mats, kneeling, facing east, and holding services? What if my religion involves speaking in tongues whilst in your shop? Since my religion involves solicitation of new members, would you mind if I approached your other customers about being in my religion? How about if I come in and spend time witnessing to them instead of letting you and your sales staff freely conduct business with them?

divemedic
December 2, 2008, 08:11 AM
You are not ENTITLED to someone else's property. A business is property of the the owner, they should have complete control over it.

Try to run a business without following the ADA, OSHA, EPA regulations, or fire codes and then explain to us how you have complete control over it. Pass a rule at your business that all female employees must have sex with the owner and see how much control you have over it.

The fact remains that owning property does not make you a king, and these "property rights" that people here are always yammering on about on this site are not to be found anywhere in the constitution.

What if I come into your shop and practice my religion which involves the sacrifice of a goat via blood letting (slicing the throat).

Your arguments are different than what we are discussing. In your examples, the action in itself is disruptive to business. A person merely carrying a weapon in your business in itself is not comparable. No one is asking to FIRE a gun on your property, but merely possess one. Totally different.

cassandrasdaddy
December 2, 2008, 08:33 AM
concealed means concealed

Double Naught Spy
December 2, 2008, 08:45 AM
So much could be said about those "yammering" about what isn't covered in the Constitution. Gimme a break. There isn't anything in the Constitution that says I can't disrupt somebody's business, is there so long as it isn't a press, church, or other activity covered by the Constitution, is there?

Note that the Constitution does not distinguish between business property and personal property such as one's home or land in terms of what can or cannot be done on it in these regards. Since you aren't doing business at home, can I practice my goat sacrifices on your front lawn?

Dashman010
December 2, 2008, 09:53 AM
Note that the Constitution does not distinguish between business property and personal property such as one's home or land in terms of what can or cannot be done on it in these regards. Since you aren't doing business at home, can I practice my goat sacrifices on your front lawn?

There is a legal difference between status, such as being a sadist, and action, actually doing what you believe (such as killing a goat). Status is protected, action is not, when dealing with trespassing on private property or with regard to a invitee in a business.

As another example, being a drug addict is not illegal. The act of doing drugs is.

Bubba613
December 2, 2008, 10:09 AM
There isn't anything in the Constitution that says I can't disrupt somebody's business, is there so long as it isn't a press, church, or other activity covered by the Constitution, is there?
That's true. It is covered by local ordinance and state law, however, which do restrict disruptive behavior. And that restriction even applies to otherwise protected activities. Go to an anti war rally and start throwing eggs and see what happens.

As far as gun related, carrying a gun is not a protected right that trumps the property owner's rights. He can certainly exclude you if he wants.

divemedic
December 2, 2008, 11:49 AM
What you all are missing is that property "rights" are not (with specific exception covered by the third, fourth, and the takings clause of the fifth amendment) guaranteed by the constitution- they are spelled out in state law.

If a property owner who has opened his property to the public sees that I have a gun and specifically asks me to leave, then yes, he does have the ability to do so. If I fail to leave at that point, I am trespassing. Unless otherwise provided for in state law (such as the Texas 30.06 statute) a property owner cannot place advance conditions on entering his property that carry any weight, all he can do is ask you to leave.

For example, if you have a dress code, and ask a person to leave for not meeting it, you may do so. That does not mean that you can require customers to disrobe so that you can examine their undergarments, and they are not trespassing until you tell them to leave and they refuse.

You can place a sign that says "No Jews," but that does not make a Jew on your property a trespasser until you somehow figure out that he is Jewish and ask him to leave. Now, that does give him the ability to sue you later under Civil rights laws, so that is not a smart thing to do.

The same goes for gun owners. As I pointed out before, unless state law allows you to post, you can put a sign on your front door that reads "No guns," but this sign carries no legal weight, and the property owner cannot force you to submit to a search, but can deny entry if you refuse a search even though you cannot be arrested for refusing a search entering or leaving. Of course, this will likely turn off his customers. Only when you spot the weapon can you ask the person to leave and have it carry any legal weight.

On the flip side of this, there are certain times when you as a property owner are restrained by law. For example, you can be sanctioned by law for failing to maintain your business up to local building and fire codes. This can result in fines, jail time, and foreclosure or condemnation of your property.

Note that every one of the above laws has roots in the law, not the constitution. The only word on your "rights" as a property owner with regard to such laws is the takings clause of the Fifth Amendment.

Anyone else have any actual facts to the contrary, or are we going to discuss opinion?

JohnBT
December 2, 2008, 11:51 AM
"A number of people here said that shopkeepers are free to discriminate for whatever reason they wish. Surely someone must be mistaken."

I only said he'd probably get the cops to toss you for tresspassing.

You could later pursue a religious discrimination case against the shopkeeper and probably win if you had witnesses to testify that he specifically mentioned religion. Of course, without good witnesses, tapes, etc., the shopkeeper could claim something stupid like he thought the cross meant you supported the klan and introduce some far-fetched reasonable(?) doubt that his actions had nothing to do with religion.

Strange things can happen in the legal process.

John

M203Sniper
December 2, 2008, 12:49 PM
Sure it's covered under the Constitution. Haven't you read the back?

If it comes up someplace other than THR your going to have an un-comfortable conversation with SomeOne.

misANTHrope
December 2, 2008, 01:18 PM
What you all are missing is that property "rights" are not (with specific exception covered by the third, fourth, and the takings clause of the fifth amendment) guaranteed by the constitution- they are spelled out in state law.

Is it your position that rights do not exist unless they're spelled out by law?

Frank Ettin
December 2, 2008, 02:44 PM
Is it your position that rights do not exist unless they're spelled out by law?
In effect, a right, to be meaningful, must be recognized and enforceable in law. What would it mean to have a right if you could not enforce it in court?

For hundreds of years the Common Law has recognized the notion that one who owns (or has a leasehold interest in) property may generally exclude from the property anyone he doesn't want, and may even revoke permission to enter previously given. Entering onto, or remaining on, another's property without permission is the tort of trespass, and it is recognized and actionable at law.

The law has carved out a few exceptions. For example, one may not exclude from his property law enforcement officers having a proper warrant. And one who operates a business open to the public may not exclude members of the public because of race, color religion, national origin, gender (with a few exceptions) or sexual orientation (in some jurisdictions); but of course the business owner may expect everyone to conduct himself properly (i. e., if you're disruptive, the law recognizes no license to be thus because of your race or religion).

These exceptions to a property owner's or lessor's right to exclude others come from either the Common Law or from specific statute or ordinance. They don't come from the Constitution. The Constitution regulates the conduct of government, not private citizens. The Constitution my, however, serve as a basis for government to claim a power to enact laws either requiring or prohibiting certain conduct.

There are statutes that specifically say that I, as business owner, may not exclude someone because of race. There is no similar statute that says I can't exclude someone because he's carrying a concealed (or visible) gun.

divemedic
December 2, 2008, 03:45 PM
Fiddletown- I agree, but with one caveat:


There are statutes that specifically say that I, as business owner, may not exclude someone because of race. There is no similar statute that says I can't exclude someone because he's carrying a concealed (or visible) gun.

In many states (with exceptions like Texas' 30.06) you must tell the person to leave for there to be a trespass. In other words, if I am legally carrying a concealed weapon in a business that has the ghostbusters sign, I cannot be arrested until you (or your agent) tells me to leave and I refuse. I am breaking no laws.

Of course, it would not be unconstitutional for a state to pass a law preventing a business from excluding CCW holders from possessing a concealed weapon on their property. In fact, several states (including my own) have done just that.

Double Naught Spy
December 2, 2008, 03:57 PM
There is a legal difference between status, such as being a sadist, and action, actually doing what you believe (such as killing a goat). Status is protected, action is not, when dealing with trespassing on private property or with regard to a invitee in a business.

As another example, being a drug addict is not illegal. The act of doing drugs is.

Got it. So if you invite me over for a social event, I can practice my religious activities in your home or on your property because I am an invitee and there is nothing you can do about it? Since I am an invitee, I can then engage in other protected practices like freedom of speech, press, RKBA, in spite of the fact that you tell me not to?

Nope.

Byron Quick
December 2, 2008, 04:11 PM
'No concealed carry' or 'No weapons allowed' signs have no force of law in my state. I ignore them. That being said, if someone asks me to leave my store; I will do so.

I doubt they'll much care for the boycott that GeorgiaCarry.org will likely initiate/

Georgia has no statute that bars such signs; the legislature has simply been quite clear on the matter-it reserves the ability to set limits on concealed carry.

Treo
December 2, 2008, 04:24 PM
You know if you'd been concealed carrying that cross the shopkeeper never would have known you had it:D

Bubba613
December 2, 2008, 04:55 PM
Got it. So if you invite me over for a social event, I can practice my religious activities in your home or on your property because I am an invitee and there is nothing you can do about it? Since I am an invitee, I can then engage in other protected practices like freedom of speech, press, RKBA, in spite of the fact that you tell me not to?
No, obviously you didn't.
You are not free to engage in any activity you feel like on someone else's property under the guise of it being Constitutionally protected

divemedic
December 2, 2008, 05:25 PM
Got it. So if you invite me over for a social event, I can practice my religious activities in your home or on your property because I am an invitee and there is nothing you can do about it? Since I am an invitee, I can then engage in other protected practices like freedom of speech, press, RKBA, in spite of the fact that you tell me not to?

Try to put out a for sale sign that says "No Blacks need apply." and see how far your "Property rights" get you.

cassandrasdaddy
December 2, 2008, 05:29 PM
interestingly enough a developer had a "no lawyers policy" that stood up in court

Crashola
December 2, 2008, 07:03 PM
State action is the touchstone of the Bill of Rights. Civil liberties are designed to prevent the government from infringing on our rights. Thus, private entities can discriminate all they want without raising any constitutional issues. That's why a radio station can fire a talk show host for hate speech, but a city can't prevent you from making hate speech on the steps of city hall. That's not to say that anyone can discriminate against someone based on race, gender, etc. Title VII makes it illegal to refuse to hire or to fire someone based on their "race, color, religion, sex, or national origin." Title VIII prohibits similar discrimination in housing. The ADA makes it illegal to discriminate against the handicapped. Most, if not all, of the states have similar laws. But these are all statutory enactments. In other words, while the Bill of Rights was designed to protect us from the government, the legislature has made it public policy that certain types of discrimination by private individuals will not be tolerated.

divemedic
December 2, 2008, 07:43 PM
My point is that there is no constitutional provision that enshrines a property owner's power to exclude. That power is purely based in statute, and is thus subject to the whims of the legislative bodies in question, with the only constitutional restriction being the takings clause.

akodo
December 2, 2008, 08:15 PM
I don't see why a store shouldn't be able to stop you from carrying on their property--it is, after all, their property.

here's how it works.

A store owner can kick you out of the store for any reason at all.

He can kick you out for looking funny, for smelling, for wearing a pro-Obama Tshirt, for wearing an anti-Obama Tshirt, or because your boxers are showing.

At one time that list also included 'because of your skin color, handicapped status, or religion'

Since then, there has been added a 14th amendment and a wide variety of laws to make special catagories where a business cannot treat someone different just because of a certain limited set of conditions (race, religion, gender)

However, you are still free to kick anyone out of your store for excersizing their other constitutional rights.

For example, a guy wearing a Tshirt with a slogan you don't like is excersizing his free speech, you can still kick him out. A guy is being questioned by the cops in your store, he says 'I want a lawyer I am not answering any more questions until I get a lawyer' You can say 'Get the heck out of my store, lawyer lover! I hate lawyers!'

Paladin_Hammer
December 2, 2008, 08:34 PM
So long as the shop owner either has:

A. A security guard.

-or-

B. A good plan in case of a situation.


As for the idea of kicking someone out for wearing a cross, I'm pretty sure that's against the law. You can't discriminate on basis of race, sex, religion, etc etc. Doesn't matter where you are. They should include smokers in that, but apparently when someone lights up a cigarette these days, he's killing people. I was under the impression he was increasing the risk of cancer later in life, not committing mass-murder.

MGshaggy
December 2, 2008, 08:48 PM
My point is that there is no constitutional provision that enshrines a property owner's power to exclude.

Straw man. There is no constitutional provision that precludes a private property owner's power to exclude either.

The provisions precluding a private property owner from racial discrimination is based in statute; namely the Civil Rights Act, and are also subject to the whims of the legislative bodies in question. Those provisions don't, however extend to discrimination for a private property owner not engaged in business or open to the public.

Frank Ettin
December 2, 2008, 09:39 PM
...There is no constitutional provision that precludes a private property owner's power to exclude...
And the Constitution simply does not regulate the conduct of private citizens. It regulates only the government.

KINGMAX
December 2, 2008, 09:43 PM
No problem: Do not go back; do not go back and do any more business w/ him. Spread the word out to others if you feel that strong about it.

Dashman010
December 2, 2008, 09:49 PM
Got it. So if you invite me over for a social event, I can practice my religious activities in your home or on your property because I am an invitee and there is nothing you can do about it? Since I am an invitee, I can then engage in other protected practices like freedom of speech, press, RKBA, in spite of the fact that you tell me not to?

No, you clearly didn't. A business invitee, someone a business owner solicits to come into his property for financial gain, is totally different from a private property owner who "invites" someone onto his property. A business owner can't kick someone off his property for race, national origin, etc. without being in violation of the law, but a private property owner can.

Secondly, you analogy is erroneous because again you confuse action -- " I can practice my religious activities in your home" -- with status - simply being something (like Catholic).

Dashman010
December 2, 2008, 10:09 PM
My point is that there is no constitutional provision that enshrines a property owner's power to exclude.

I would disagree. The United States Supreme Court has recognized that the private landowner's right to exclude others from his or her land is “one of the most essential sticks in the bundle of rights that are commonly **160 characterized as property.” Dolan v. City of Tigard, 512 U.S. 374 (1994). Now, while the 14th amendments Due Process Clause generally only applies to government, in this case it essentially makes private action a moot point. The government can't create a law allowing people on your property , therefore, you have a constitutionally protected property interest in excluding others from your property.

Dr. Peter Venkman
December 2, 2008, 11:56 PM
In many states (with exceptions like Texas' 30.06) you must tell the person to leave for there to be a trespass. In other words, if I am legally carrying a concealed weapon in a business that has the ghostbusters sign, I cannot be arrested until you (or your agent) tells me to leave and I refuse. I am breaking no laws.

Did somebody call me?

7.62X25mm
December 3, 2008, 01:02 AM
Private property owner can bar you from access to his/her premises while wearing a cross -- or any other clothing criteria they might decide to enforce.

Bars/restaurants require "ties/coats" all the time, and you can't enter without one.

You can't enter a synagogue without a yamika, and I think women must have their hair covered. There are clothing restrictions for a mosque -- and wearing a cross is definitely prohibited.

Private property owner (like a corporation) running a nudist camp can require that you don't wear clothing altogether.

So, if they want to tell you that you need to leave your gun outside, that's well within their legal pervue.

There's some case law which views "shopping malls" as "public spaces" and so political speech is protected in these venues -- I'd like to see that extended to web sites where forums allow public access.

7.62X25mm
December 3, 2008, 01:10 AM
Quote:
My point is that there is no constitutional provision that enshrines a property owner's power to exclude.

Bill of Rights, Article IV:

"The right of the people to be secure in ther 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 of affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

-- Sounds to me like the right to exclude.

7.62X25mm
December 3, 2008, 01:15 AM
"A number of people here said that shopkeepers are free to discriminate for whatever reason they wish. Surely someone must be mistaken."

Generally open to the public, a shopkeeper cannot discriminate on the basis of sex, race, age, sexual orientation, religious affiliation, etc. BUT, a shopkeeper has the right to refuse service for most any other reason -- being armed comes to mind, but being drunk, disorderly, unkempt, not wearing shoes, shirt . . . All would pass muster.

expvideo
December 3, 2008, 01:24 AM
Bill of Rights, Article IV:

"The right of the people to be secure in ther 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 of affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

-- Sounds to me like the right to exclude.

I'd like you to highlight the part of that sentence that has anything to do with a right to exclude. The 4th amendment only protects against illegal search and seizure. I'm not saying I agree or disagree about a property owner's right to exclude, but the 4th amendment does not cover that, no matter how you spin it. It is only a protection against searches and seizures.

BullpupBen
December 3, 2008, 01:28 AM
They certainly have the right to discriminate against you and make restrictions against certain behaviors in their stores. The purpose of the bill of rights is to protect from a powerful government, no retail store could ever become powerful enough to warrant that kind of concern.

You sign a social contract with the government of this country, and its expected they will protect certain rights (life, liberty, and property) while you are a citizen as long as you follow the rest of their rules.

Which stores you shop at are decided not by social contract, but a choice which you can make and re-make every single day. If you dont like it then dont shop there and if enough people dont like it they will either change their rules or go out of business and be replaced by someone you will probably like more.
It is much harder to change governments so we need elaborate sets of rules like those established in the constitution.

7.62X25mm
December 3, 2008, 01:41 AM
Supra . . .

The government protects private property owners to "life, liberty, property."

Property belongs to the property owner, and the state protects the owner's right to control their property.

That would be the "property" part of "life, liberty, property."

expvideo
December 3, 2008, 01:55 AM
Supra . . .

The government protects private property owners to "life, liberty, property."

Property belongs to the property owner, and the state protects the owner's right to control their property.

That would be the "property" part of "life, liberty, property."
This I can agree with, but I still disagree with you on the subject of the 4th amendment protecting some right to exclude. While the right may be protected, it is not done by the 4th amendment.

crebralfix
December 3, 2008, 07:06 AM
Sorry...wasn't clear.

My state constitution guarantees me the RKBA.

The Fed. 2nd only acts on Fed action, as stated above, because it has yet to be incorporated into the 14th.

AFAIK, there is NO right to property in my state constitution (I will look again).

Therefore, now again, AT THE STATE level, how does the "notion" of property trump an enumerated right?

It does not. It's a fiction as far as I can tell in my state.

MGshaggy
December 3, 2008, 09:27 AM
And the Constitution simply does not regulate the conduct of private citizens. It regulates only the government.-Fiddletown

Well, I'd say the 18th did, but only until the 21st.:D

bruss01
December 3, 2008, 10:24 AM
Some things we are accustomed to thinking of as "public" are now becomming privately owned. Some toll bridges and toll roads, for instance, are run by private enterprise, not by the public through the agency of our government. So what when the operator of a toll road declares no guns allowed to be carried on the toll road? It's private property, right? And the way that US cities are currently mis-managing themselves into bankrupcy, how long before the streets and sidewalks are maintained by some kind of private enterprise, and security is provided by a corporation (similar to Omni Consumer Products - OCP - in the movie Robocop)? If the company decides, as a mater of policy, that guns may not be carried on city streets? That doesn't work - just because the street may be "privately" owned, it is still a "public" place.

I don't believe that an individual can violate your fundamental rights without being liable for suit. Sure, I do believe in private property owners rights - but if your facility is open to the public, then you have accepted that people will be coming in, and as long as they aren't destructive or negatively impacting your business or whatever function is performed there, then you can't restrict their fundamental rights. Being open to the public implies that you accept that the public will be coming in. You accept that people have needs and rights. Their needs are defined in the health and safety code, their rights are defined in the constitution. You are accepting, in being open to the public, that you will accomodate their needs as defined in the health and safety code and their rights as defined in the Constitution.

The answer is for a business owner to not be open to the public at large. You set up a "membership" such as Costco or other warehouse club. Members sign an agreement in order to get a membership card. Members are then bound by a contract to adhere to whatever terms you agree on. That's the answer to the "private property owners rights" vs. "public rights". They don't have to become a member, but if they do, they have to abide by the rules. Of course they cannot shop there if they are not a member either, so the owner has a choice to make, doesn't he?

Frank Ettin
December 3, 2008, 11:06 AM
Well, I'd say the 18th did, but only until the 21st.
Not really -- the key provision is Section 2 of the 18th Amendment, "The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." As a result, Congress was able to pass the Volstead Act.

...My state constitution guarantees me the RKBA....
Actually, your state constitution simply denies to your state government the power to deprive you of the RKBA. It doesn't deny to a property owner the right to deny anyone access to his property for any reason, including being armed and excluding, if a business open to the public, race, religion, or other reasons specifically prohibited by statute. (see post 54)

...Therefore, now again, AT THE STATE level, how does the "notion" of property trump an enumerated right?...
Because neither the U. S. Constitution or any state constitution protects any right that may be enumerated from interference by private citizens in the exercise of their legally cognizable rights. (see post 54)

I don't believe that an individual can violate your fundamental rights without being liable for suit. ..if your facility is open to the public,... then you can't restrict their fundamental rights...
An interesting notion, but it's not the law; and it won't get you anywhere in court. A business owner exercising his property rights can conduct his business open to the public with whomever he wants, except to the extent he is statutorily prohibited from excluding someone for certain reasons, such as race, religioun, etc.

Dashman010
December 3, 2008, 11:56 AM
fiddletown -

+1

MGshaggy
December 3, 2008, 12:10 PM
Not really -- the key provision is Section 2 of the 18th Amendment, "The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." As a result, Congress was able to pass the Volstead Act.

Not to further derail the main discussion (since I think we largely agree on that), but Section 1 does explicitly prohibit certain conduct by non-governmental actors ("After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."), and without it, Section 2 and the Volstead act implementing section 1 of the 18th amendment wouldn't exist...

or at least not for a few years until Wickard made the CC a viable basis of authority for that type of legislation.

AgentAdam
December 3, 2008, 12:21 PM
"separation of church and state"

Frank Ettin
December 3, 2008, 12:29 PM
MGshaggy, but without the Volstead Act, it's difficult to see how Sec. 1 of the 18th could be implemented.

ConstitutionCowboy
December 3, 2008, 12:39 PM
You gotta understand: The Second Amendment and the several state's analogs only prohibit government from infringing your right to keep and bear arms. I can infringe your RKBA in my home if I so desire. I see nothing in the law that would prohibit me from prohibiting law enforcement armed access to my home as well. What a can of worms that could create!

Woody

rscalzo
December 3, 2008, 01:18 PM
How about "NO COLOREDS",

Something similar happened years back at a private swim club. without getting in to it, the state came in after complaints were filed and they were charged with administrative statutes. It's too long ago to remember the exact details but it cost them some big bucks.

hso
December 3, 2008, 01:54 PM
This one started off as more of a philosophical question and has wandered widely. OT

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