brboyer
Member
I agree except:
You'll need to define 'Brandish'
Which right is that? The right not to be offended or scared?
Should property rights trump 2A rights
- Thread starter preachnhunt
- Start date
- Status
I agree except:
Which right is that? The right not to be offended or scared?
rscalzo
Member
Your examples hold no water. You are not denied any rights. You are free to possess a firearm under that Amendment. But those rights do not extend to that of a property owner.
In fact a property owner is not forced to sell to anyone. That is his right. Foolish business practice but his right. Property owners are also not responsible for your safety. Settled many times in case law barring gross negligence such as inoperable lighting in parking lots, etc.
Nothing in 2A covers the rights to enter property. It only pertains to personal possession. As none of this comments is backed by case law, they hold little relevance.
None of the comment is backed by case law?
Really?
You can be strip-searched without a reason when you go to the mall? You can be forced into slavery at the mall? You can be forced to confess to crimes when you're at the mall?
Really?
In case you didn't read, the question was "should" BTW. There is practically no 2nd post-Heller Amendment case law, so there's nothing to go on. And it doesn't matter anyway, since the question was "should."
My answer is, since you forfeit exactly no other fundamental rights when you enter the mall, the right to self-defense with arms should not be forfeited either.
WRT the idea that the 2nd Amendment only applies to government, that is true. However, it is government that enforces any law. The question of what rights you forfeit when entering the mall is really the question of what you can be arrested for, by agents of the government. If a mall owner can have you arrested and charged for responsibly carrying a firearm for self-defense, then it's the government enforcing a law prohibiting RKBA. It's a distinction without a difference.
And no other fundamental rights are about the right of any individual to enter property, either.
The right to put up a No Trespassing sign is quite clear. If you want to have your property rights enforced, put up a sign, and call the cops if anyone crosses the fenceline. Your property rights will be enfoced, at the expense of taxpayers.
However, there is plenty of case law to support the notion that public areas owned by private entities, e.g. malls, come with many restrictions on the property owner. Suggesting otherwise is simply ludicrous.
Really?
You can be strip-searched without a reason when you go to the mall? You can be forced into slavery at the mall? You can be forced to confess to crimes when you're at the mall?
Really?
In case you didn't read, the question was "should" BTW. There is practically no 2nd post-Heller Amendment case law, so there's nothing to go on. And it doesn't matter anyway, since the question was "should."
My answer is, since you forfeit exactly no other fundamental rights when you enter the mall, the right to self-defense with arms should not be forfeited either.
WRT the idea that the 2nd Amendment only applies to government, that is true. However, it is government that enforces any law. The question of what rights you forfeit when entering the mall is really the question of what you can be arrested for, by agents of the government. If a mall owner can have you arrested and charged for responsibly carrying a firearm for self-defense, then it's the government enforcing a law prohibiting RKBA. It's a distinction without a difference.
And no other fundamental rights are about the right of any individual to enter property, either.
The right to put up a No Trespassing sign is quite clear. If you want to have your property rights enforced, put up a sign, and call the cops if anyone crosses the fenceline. Your property rights will be enfoced, at the expense of taxpayers.
However, there is plenty of case law to support the notion that public areas owned by private entities, e.g. malls, come with many restrictions on the property owner. Suggesting otherwise is simply ludicrous.
Last edited:
308win
Member
When the concealled carry law was enacted in Ohio many business posted; more didn't (based on observation). We didn't post and to my knowledge not one customer ever raised the issue on either side. I don't think it is an issue with most people. It is probably accurate that most people don't care one way or the other.
Completely off the mark. The Constitution does not regulate private conduct. BUT other laws protect persons on property from actions of someone having a possessory interest in the property.ArmedBear said:
Thus, laws prohibiting such acts as battery, assault and false imprisonment, not the Constitution, prevent the operator of a mall from subjecting patrons to flogging, slavery, etc. Statutes prohibiting discrimination on the bases of race, religion, etc., not the Constitution, prevent the mall operator from denying access to rest rooms, etc., on such bases. And of course police searches, jury trials and compelling of testimony have nothing to do with the mall operator.
The current state of the law is that in general there is nothing preventing a business open to the public from declining permission to enter to persons lawfully carrying guns. There are some states that have enacted laws preventing employers from taking action against employees who secure legally owned guns in cars parked on company premises. There are also statutes that require business' wishing to exclude guns to post notices in certain places and in a certain form. And in general the business' remedy is limited to asking a person to leave and calling the police if the person refuses.
That is the current state of the law. If anyone thinks it should be different, legislatures can change laws, and the courts are open for business.
It's simply a matter of following your convictions, or complying with the policy of a small business owner, that in some cases does not understand the full implication of his policy. I do believe that if you walk, the proprietor needs to be told why.
Gouranga
Member
Personally, I think if we are going to rally to the 2A and expect others to respect that right, we should absolutely follow through and respect the rights of PRIVATE property owners.
Public property is one thing but as a private property owner I should be able to restrict whatever conduct I wish on my property. If I do not want someone to come on it with a gun then they should not. If a business decides to NOT allow CCW then I will abide by their decision, I will also not ever patronize that business. Which is why I go to Gander Mountain in my area and not Bass Pro Shops.
Public property is one thing but as a private property owner I should be able to restrict whatever conduct I wish on my property. If I do not want someone to come on it with a gun then they should not. If a business decides to NOT allow CCW then I will abide by their decision, I will also not ever patronize that business. Which is why I go to Gander Mountain in my area and not Bass Pro Shops.
preachnhunt
Member
Quote:
Here's where it get sticky for me. I have to frequent hospitals ,which are posted with the signs, and park in their garages late at night. Should I honor the sign and take the risk? I have no choice but to be there.
First off I'm curious as to why you have "no choice but to be there." Not sure it matters, and not trying to pick a fight, just curious it actually matters not at all to my point.
The reason I really have no choice but to be there is I am a Minister and part of my job is to regularly visit people in the hospital.
Here's where it get sticky for me. I have to frequent hospitals ,which are posted with the signs, and park in their garages late at night. Should I honor the sign and take the risk? I have no choice but to be there.
First off I'm curious as to why you have "no choice but to be there." Not sure it matters, and not trying to pick a fight, just curious it actually matters not at all to my point.
The reason I really have no choice but to be there is I am a Minister and part of my job is to regularly visit people in the hospital.
brboyer
Member
What does your state law say about carry in hospitals, if anything?
In my situation, my grandson has spent about 10 weeks in the hospital in the short nine months since his birth.
I carry everywhere legal. Regardless of signs as they carry no legal weight in Florida
Last edited:
preachnhunt
Member
To my knowledge Ky CCW law doesn't mention hospitals.
brboyer
Member
Hmmm, ordinarily I'd go into the free market thing where you have the right to sell your services to someone who won't require you to go places where you can't carry, but I understand about a calling from God so I guess you don't actually have a choice. Sorry. I guess just follow your laws, and your conscience as best you can. Good luck with it. You're in a tough spot sir, and I feel for you. I will be curious to know what you ultimately decide.
evan price
Member
The right of a person to life, liberty and ownership of property are the fundamental basis upon which this country was built. Indeed, the expressed Rights in the Bill of Rights were given freely by the Creator to all reflecting on those three most basic and fundamental concepts.
Your Right to bear arms isn't predicate on your location.
However, the owner of the location may choose to exclude you for any reason they choose- and the only exception to this is the Federally created classes which are race, skin color, religion, sex, and disability.
There is no double standard of rules here. The rights of the individual are always the ones that are supreme.
You don't HAVE to enter my store to maintain your life, do you?
If you choose to enter, then that's your decision. Abide by my rules, or don't enter.
As a property owner, they have the right to say that your gun is not welcome.
As a free man, you have the right to say Goodbye!
-OR-
As a free man, you have the right to consider what the consequences of your actions are and to decide to live with your decisions. Things like the 3'am red light roll. Or carrying a concealed weapon where the business owner does not allow it, knowing you will get asked to leave if discovered.
Conceal well, carry everywhere you can.
In Ohio if you are caught KNOWINGLY violating a posted prohibition you will get charged for trespass, if you refuse to leave in the presence of a police officer.
That does NOT include "statutory" no-gun areas, such as schools, police stations, jails, Class-D liqour establishments, where it is a FELONY to be armed.
Private businesses, I don't really care about.
Statutory areas- oh yes, I pay attention to those. Felonies are not something I want.
Your Right to bear arms isn't predicate on your location.
However, the owner of the location may choose to exclude you for any reason they choose- and the only exception to this is the Federally created classes which are race, skin color, religion, sex, and disability.
There is no double standard of rules here. The rights of the individual are always the ones that are supreme.
You don't HAVE to enter my store to maintain your life, do you?
If you choose to enter, then that's your decision. Abide by my rules, or don't enter.
As a property owner, they have the right to say that your gun is not welcome.
As a free man, you have the right to say Goodbye!
-OR-
As a free man, you have the right to consider what the consequences of your actions are and to decide to live with your decisions. Things like the 3'am red light roll. Or carrying a concealed weapon where the business owner does not allow it, knowing you will get asked to leave if discovered.
Conceal well, carry everywhere you can.
In Ohio if you are caught KNOWINGLY violating a posted prohibition you will get charged for trespass, if you refuse to leave in the presence of a police officer.
That does NOT include "statutory" no-gun areas, such as schools, police stations, jails, Class-D liqour establishments, where it is a FELONY to be armed.
Private businesses, I don't really care about.
Statutory areas- oh yes, I pay attention to those. Felonies are not something I want.
Owen Sparks
member
- Joined
- May 27, 2007
- Messages
- 4,523
I used to work the door in a bar. The owner decided not to let men come in wearing tank tops or sleeveless shirts. One idiot tried to argue that he had a constitutional right to wear a tank top and that I could not 'discriminate' against him. I told him that he could wear anything he wanted, he just could not wear it here. This is the same exact argument only it is about guns. The Bill of Rights is a limit on the powers of government not individuals. For example, you have a right to the freedom of speech, but not in the movie theater. You have a right to practice your religion, but not on my lawn. And you have the right to bear arms, but not in my business unless I say you can.
Double Naught Spy
Sus Venator
Given that most laws do not distinguish between business private property and personal private property (such as my house, rural land, etc.), then I feel that property rights should and must trump 2A rights. There is no way I want to lose controlling interests in regard to my home and rural property.
With that said, I would also want controlling interest over my property if I was running a business in it.
My state does have this codified by law.
With that said, I would also want controlling interest over my property if I was running a business in it.
My state does have this codified by law.
rscalzo
Member
I love it when some come up with a totally juvenile response to a question. Quite simply, the property owner gives up no rights, not the person entering. Your response is worthy of a ten year old.
So you can't even form an argument? You can only resort to name-calling?
The 2nd Amendment says "The right to keep and bear arms shall not be infringed."
The Supreme Court has declared that to be an individual right.
Individuals give up no other such rights when they enter a mall. This is hardly a given -- it's a choice we have made in this country. Many enumerated individual rights could be declared null and void on private property that is open to unrestricted access by the general public. They are not. There are, in addition, reams of additional laws restricting what a property owner is allowed to do in this situation.
So explain why only ONE of these rights should be declared null.
Note also that one's person is property, just as real estate is. The 4th Amendment makes it clear that "persons" and "houses" are both private property.
Now, I think that, in a perfect theoretical "libertarian" world, where a bar could post a sign that says "Asians Only" and call the police to eject anyone else, or a company could advertise a job with "No Irish need apply", or a gym could post "No Veterans Allowed", the idea that property owners' rights to exclude people from a public space would hold water. Don't like guns? Fine. Don't like Jews? Fine. Post signs, and have the cops haul Jews away, along with those carrying concealed pistols, African-Americans, Caucasians, Catholics, whomever. (I can't say that is the world I would really WANT to live in, and I have nothing against anyone; this is just a very clear restriction on private property once it's open to public access.)
That's not the world we live in. In the world we currently live in, why should ONLY the right to self-defense with a firearm be forfeited in a space with unrestricted access to the general public? That's my question.
Anyone have a real answer?
Property owners are free to close property entirely, or open it only to members of a private club. Generally, the property owner is king, in these situations. But... legally, there are many, many restrictions on what real property owners or lessors can do, if they open that property to the general public. That's reality. If you want to argue that these restrictions shouldn't exist, go for it. Private property rights debates are always amusing. I'm only writing in the context of the real world, as it really exists, right now.
Note again that the title says "should". If I want to learn the details of case law, there are many more informed people on law blogs than anyone here.
The 2nd Amendment says "The right to keep and bear arms shall not be infringed."
The Supreme Court has declared that to be an individual right.
Individuals give up no other such rights when they enter a mall. This is hardly a given -- it's a choice we have made in this country. Many enumerated individual rights could be declared null and void on private property that is open to unrestricted access by the general public. They are not. There are, in addition, reams of additional laws restricting what a property owner is allowed to do in this situation.
So explain why only ONE of these rights should be declared null.
Note also that one's person is property, just as real estate is. The 4th Amendment makes it clear that "persons" and "houses" are both private property.
Now, I think that, in a perfect theoretical "libertarian" world, where a bar could post a sign that says "Asians Only" and call the police to eject anyone else, or a company could advertise a job with "No Irish need apply", or a gym could post "No Veterans Allowed", the idea that property owners' rights to exclude people from a public space would hold water. Don't like guns? Fine. Don't like Jews? Fine. Post signs, and have the cops haul Jews away, along with those carrying concealed pistols, African-Americans, Caucasians, Catholics, whomever. (I can't say that is the world I would really WANT to live in, and I have nothing against anyone; this is just a very clear restriction on private property once it's open to public access.)
That's not the world we live in. In the world we currently live in, why should ONLY the right to self-defense with a firearm be forfeited in a space with unrestricted access to the general public? That's my question.
Anyone have a real answer?
Property owners are free to close property entirely, or open it only to members of a private club. Generally, the property owner is king, in these situations. But... legally, there are many, many restrictions on what real property owners or lessors can do, if they open that property to the general public. That's reality. If you want to argue that these restrictions shouldn't exist, go for it. Private property rights debates are always amusing. I'm only writing in the context of the real world, as it really exists, right now.
Note again that the title says "should". If I want to learn the details of case law, there are many more informed people on law blogs than anyone here.
Last edited:
Sam1911
Moderator Emeritus
Do not be insulting. His point is valid. Who is giving up rights? The property owner who feels that they should (or their insurance insists that they) control whether or not a person exercises the fundamental human right to a means of self-defense while on their property -- which will affect that property owner and/or others using the property in no way and which in fact they will have no knowledge of?
Or the person who must set aside their fundamental right to a means of effective self-defense simply to be in a certain place -- a place where no extra safeguards are afforded them nor guarantees of any protection offered or liability for their safety extended by the entity insisting that they disarm?
The poster was simply pointing out that you do not give up your other -- LESS immediately critical -- rights when you enter a store, so why would you ever consider giving up your most basic one?
woad_yurt
Member
brboyer:
Some synonyms for "brandish" are swing, flaunt, wield, and display.
I got them from an online dictionary and thesaurus. When I don't know the meaning of a word, I've always found that a dictionary, whether online or in hardcopy, is always a great starting point for any definition quest. I've come to this opinion based upon decades of past experience. I'm not saying that this method would be best for anyone, just that is has worked for me. As it is with every opinion, YMMV.
Here's a link, if you're interested:
http://dictionary.reference.com/
Now, to the real nut of what you said:
A person brandishing (see above) a firearm in a public place violates others' rights in the same fashion as does the person who screams "fire" in a crowded movie theater.
When a reasonable person in a public place hears screams of "Fire!" or sees someone brandishing a firearm, that person has a very good cause to be extremely concerned about the safety of themselves, their family and the others around them. No reasonable person would merely shrug it off and go about their business calmly when, for all they know, the building is on fire or when they see someone waving a gun around.
So, what does a reasonable person do when they think they'll be incinerated or shot? They will try to get the hell out of there as soon as humanly possible. Things get knocked over and broken and some people may even get trampled if the crowd is large enough. The property rights of the owner of all of the broken stuff are surely violated and, in the case of the movie theater, the ticket purchasers are harmed as well (they paid to see a movie but were denied the opportunity to do so. The general public's rights are violated when they get knocked over, stepped on, banged around or harmed in the ensuing chaos.
Regarding your question about those wearing obscene t-shirts around five year old children: For real?
If people may not use my property to preach their religion/philosophy/politics/etc without my permission, it would certainly follow that they may not use my property to expose children (or anyone else, for that matter!) to obscenity. Free speech ends where it begins to harm others. The movie theater scenario above is the classic example of the limits of free speech in this country. Psychiatrists and psychologists all agree that exposing people to graphic sexuality before they’re old enough to digest it safely (or maybe even appreciate it!) causes a lot of emotional grief, conflict and other interpersonal difficulties which can scar a person for life. Somewhere, in something I read, I forget where, it said something about an inalienable right to the pursuit of happiness or something along those lines. Exposing a five year old child to obscenity will, most probably, leave them less happy than they would have been had they not been exposed to it. Even if it was a momentary exposure, there will probably be the inevitable tense parenting situation in which the parent has to try and explain why they suddenly dragged the kid out of the place. “Mommy, what was that on the man’s shirt?” “Why was it bad?” “What was the man in the picture doing to the woman?” “It looked like he was hurting her….”
Sam1911
Moderator Emeritus
O.k. So we all happy that we understand the term "brandish?" 
Knowing that "brandishing" is generally a crime, usually commensurate with assault, can we agree that this is wholly outside the scope of a discussion of CARRYING a concealed defensive weapon on your person in conflict with the expressed wishes of a business or store owner?
Knowing that "brandishing" is generally a crime, usually commensurate with assault, can we agree that this is wholly outside the scope of a discussion of CARRYING a concealed defensive weapon on your person in conflict with the expressed wishes of a business or store owner?
But the point is that the Constitution does not limit private conduct. It is meaningless to talk about rights protected by the Constitution in the context of the rights a patron of a private business may have vis a vis the business.ArmedBear said:
Yes, there are many laws restricting what one having a possessory interest in property may do. And the rights of persons who enter upon that property derive from those laws -- not the Constitution.ArmedBear said:
There are first the traditional rule deriving from the Common Law that can limit certain activities on private property to the extent they may have an effect on neighboring property (the law of nuisance). There are laws protecting one's interests in his personal security, so that in general, and subject to very narrow and limited exceptions, someone who attacks, strikes, takes prisoner or otherwise physically harms someone, on of off the actors property, can be subject to civil of criminal liability. And if the property is a business open to the public, there are laws prohibiting discrimination on various grounds.
But the essence of the right of property is the right to exclude. If it's your property, what makes it yours is your right to exclude anyone you want from it, for any, or for no, reason. Your property rights have been significantly narrowed by specific statutes enacted by legislatures, for what have been perceived as good and sufficient societal reasons, and especially in the case of a business open to the public. But absent a specific law, you retain whatever is left of your fundamental right to exclude others from your property.
I suspect that the reason is largely political. I believe that in States enacting "shall issue" CCW laws in the last 20 or so years, all those laws include in some way or another a recognition of a business' right to exclude people lawfully carrying guns. For example, it's my understanding that Texas law defines exactly what sort of signage a business must post to effectively exclude persons lawfully carrying guns.ArmedBear said:
I also suspect that the various ways in which various CCW laws recognize a business' right to exclude persons lawfully carrying guns came about to counter political opposition to those laws from businesses. So in a way, letting businesses exclude people with guns may well have been a political trade off to get the CCW legislation passed. In other words, at least in some States, if businesses weren't able to exclude persons lawfully carrying guns, concealed carry might still be illegal.
Yes, and when the "dead wood" of pseudo constitutional argument is stripped away, it clarifies and focuses on the proposition that this is finally a question of public and political policy.ArmedBear said:
divemedic
Member
Then perhaps you could explain the 13th Amendment?
These "no guns" signs are in fact a form of government sponsored gun control. Allow me to explain:
! Government sets up liability law to hold property owners responsible if a person who is lawfully carrying a concealed weapon injures someone, and the property owner did not have policies in place to prevent the gun owner from having the weapon.
2 You also set up the liability law so that when a person who is breaking the law and committing a crime injures someone, the property owner cannot be held liable for the injury, even when the person injured is a person who could otherwise have defended himself with the concealed weapon that he didn't have, due to the policy from point #1, above.
There you go, you have just set up a situation where business is held liable when a person lawfully has a gun on business property, and is free from liability when a criminal does it, as long as the business prohibits gun possession.
As a government, you have just successfully made an end run around the constitution by ensuring that no property owner will ever want to allow concealed carry on his property, and those that do want to allow it will soon be put in their place by their insurance company.
As for me, I carry any way. My rights are my rights. I am not in any way infringing on your rights by carrying, as you never even know that I am.
There is a fundamental difference between how some of you view your rights, and how I view them. My rights are there because I exist, and are not negotiable. You cannot force me to abandon my rights upon demand. My right to bear arms is the same as my right to breathe, to not be physically assaulted, to a jury trial, to not be enslaved, and to be free from searches and seizures. They are a package, and they exist WHEREVER I go. One right is as important as another.
When you open your land to the public, you open your land to the public's rights.
Not in Florida. In fact, the law here not only prevents you from criminally prosecuting me for having a gun on your property, it prevents the property owner from taking any action against me if the gun is in my car.
so you view your rights as an entitlement, based on your existence?
divemedic
Member
Yes, and so did the founders of this nation, and so does the Constitution.
The concept of "natural rights" is what this nation was founded upon. Read the Declaration of Ondependance to see the philosophy:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
What are they teaching in school in California?
Although I reject the term "entitlement" which implies that someone gave my rights to me. Instead, I think of a right as something which cannot be morally taken from me.
The concept of "natural rights" is what this nation was founded upon. Read the Declaration of Ondependance to see the philosophy:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
What are they teaching in school in California?
Although I reject the term "entitlement" which implies that someone gave my rights to me. Instead, I think of a right as something which cannot be morally taken from me.
The 13th Amendment is effective by precluding the courts from enforcing claims by one person that he owns another.divemedic said:
That is not a true statement. The usual principles of negligence apply. If you contend otherwise, cite legal authority to support your contention.divemedic said:
That is a ridiculous statement. In many States in which businesses may exclude persons lawfully carrying guns, many businesses nonetheless do not do so.divemedic said:
The business can say the same thing.divemedic said:
[1] Everywhere is not Florida.divemedic said:
[2] Section 790.251 that accomplishes all of that was enacted in 2008, some 20 years after Florida enacted its CCW law. It is a good example of how, given an appropriate political climate, a state legislature can restrict the rights of a business to exclude persons lawfully carrying guns. But it also supports the proposition that absent a specific law preventing a business from doing so, a business may exclude persons lawfully carrying guns.
Not just your rights. Everyone's -- including property owners and businesses. And sometimes the courts or a legislature has seen fit to limit your rights, or the rights of property owners or businesses. If you don't like those limitations, you may challenge them in the courts or in your legislature, just as may property owners or businesses.divemedic said:
I must admit that I find it curious that so many gun owners, who object so vehemently and violently to government's limitations of their rights, are so quick to demand that government limit some fundamental rights of someone else.
- Status
Similar threads
- Locked
