Article on “Gun Rights, Property Rights, and Takings”

Recently, the Duke Center for Firearms Law published my essay about “Guns, Property Rights, and Takings.” The symposium “Privatizing Gun Debate” features my essay. There will be many more contributions in the future.

Some two dozen states recently passed laws that required private property owners to permit employees, customers and other people to carry guns into their buildings and land. These laws are also known as “parking lot laws” or “gun-at work” laws. They constitute a grave violation of property rights. They may be considered a taking that requires compensation according to the Supreme Court’s ruling 2021. Cedar Point Nursery V. Hassid.

I am a supporter of strong Second Amendment rights to keep and bear arms…. But laws forcing unwilling private property owners to accept the presence of guns do nothing to protect the Second Amendment, undermine individual autonomy, and – at least in many cases – are themselves unconstitutional….

[T]These laws often hide behind the Second Amendment. They do not protect Second Amendment rights. The Second Amendment, like most constitutional rights in the United States, only restrains the government. Private individuals are not required to have guns, or accept them being on their property. This is similar to other Bill of Rights provisions. For example, the First Amendment does not require private owners to allow on their land every kind of speech protected against censorship by the state….

Private owners should be able to ban guns from their land if they choose. There are many good reasons. These reasons are in line with the general benefits of private property.

One of the most essential is the connection between individual autonomy, private property rights, and the other. Property owners have the advantage of having the freedom to make use of their land in any way you choose, even though others may not understand them or be disagreeable. Some object to guns being on their land because of aesthetic or moral concerns (e.g. They are strong adherents to nonviolence. Such autonomy deserves respect, even if we disagree….

Respecting property rights in this setting is closely linked to the risk of imposition of a one-size fits all rule upon a broad range of owners, each with their own needs and circumstances. Even owners who do not object to the presence of guns on principle may have good reasons for barring them in some situations….

Also, it is important to understand that the freedom of owners to ban guns does not just increase liberty for them, but also the freedom of their customers or clients, who may prefer gun-free environments. If a state law requires all private owners (or even only all businesses or employers) to allow the presence of guns, such gun-free options will be eliminated for everyone – owner and customer alike….

Many conservatives are increasingly turning against private property rights, and the imposition on property owners of gun access laws is a part of this trend. Other examples of the same tendency include widespread right-wing support for the use of eminent domain to build Trump’s border wall, advocacy of laws forcing social media firms to host speech they object to, and legislation barring private owners from imposing Covid-19 vaccination requirements as a condition of employment or entry on their land….

Of course, the political left has long-standing, dubious anti property tendencies. Among other things, many support “NIMBY” zoning restrictions, and harmful uses of eminent domain….. But that in no way excuses the growing bad behavior of the right….

Not only does this unjustly undermine property but many gun access laws mandated by the Fifth Amendment also violate the Takings Clause, which states that the government must pay “just compensation” for any private property taken.

The ruling was made in 2005, but it wasn’t until last year. Cedar Point Conventional wisdom held that only “permanent physical occupancy” of property was sufficient for a claim. Per se taking automatically requiring compensation under the Takings Clause….

Cedar PointThis involved the challenge of a California law that required agricultural growers give access to their land for three hours per night, 120 days a year to union organizers.

In a 6-3 decision…., the Supreme Court struck down the California law, and established the rule that “a physical appropriation is a taking whether it is permanent or temporary.” Thus, the California law qualifies as a taking, even though the union organizers were given access to growers’ land “only” 360 hours per year….

Joseph Blocher’s September 2021 blog entry at Duke Center for Firearms explains the Court’s reasoning. Cedar PointParking-lot laws and guns-at-work laws are easily applicable. Property owners are required to allow people to park in their parking lots (armed gun owners), or to remove any guns (and other objects) they do not want. Most cases the gun owners and guns are only present for a limited time (only during working hours). Underestimating is a problem. Cedar PointThis distinction is irrelevant.

The amount of gun-access laws that are required may be significantly higher depending on how long the company or another regulated entity works. Cedar Point case…..

Even if property owners succeed in proving that parking-lot laws are takings, it is not clear how much compensation they would get…..

However, even though property owners receive only minimal compensation, this might be sufficient to stop local and state governments adopting and enforce parking-lot laws. Even if the liability per hour is low, courts can assess liability over many thousands hours of mandatory gun storage and access every year. This is particularly true if there are no restrictions on the guns that can be stored.