My Washington Post Article on Why Gun Rights and Property Rights

Today, earlier today: Washington PostMy article was published on “The Property Rights of Business Owners are violated by ‘Gun-at-Work Laws. This is an excerpt

Iowa, the latest state to ban private property owners from prohibiting guns on land that they own, is now considering this. These statutes are also known as “parking-lot laws”, or “gun at-work laws.” They say property owners can’t prohibit people from locking their guns inside their cars while they do their job, attend church, or seek out help from a counseling center. Some laws permit them to take the guns into the house. Iowa would become the 25th state with such a law….

These laws don’t protect constitutional rights. While I am in favor of strong Second Amendment rights to bear and keep arms, the amendment only restricts the government. It does not require private individuals to own guns or allow them on their land — just as the First Amendment does not require private owners to allow speech they disapprove of on their property. To mandate that Americans accept guns on their property represents an unacceptable infringement of their property rights, and also violates the Fifth Amendment of the Constitution….

Courts, scholars and juries have always recognized the centrality of property owner’s rights to exclude persons and objects they do not like. Indeed, the Supreme Court recently reaffirmed, in a decision that forbade California from giving union organizers a “right to take access” to an agricultural employer’s property — three hours a day, 120 days a year — that “[t]The right to exclude is “one the most precious” rights in property ownership. True originalist constitutionalism would embrace a strong view of Second Amendment rights while also defending the rights of business owners to keep guns off their property, if they so choose….

Many mandatory gun access laws can also undermine property rights and violate the Fifth Amendment’s Takings Clause. This argument is based on the 6-3 decision from last year. Cedar Point Nursery v. Hassid — the one that concluded California could not let union organizers have temporary access to agricultural busesses…

in Cedar PointThe court ruled that “physical appropriation” is any taking, whether permanent or temporary. As Duke Law School professor Joseph Blocher has pointed out, in the case of gun-at-work laws — like union-organizer regulation — the government requires property owners to accept occupation of their land by people (armed gun owners) the owners would prefer to keep out…

Many conservatives are now attempting to undermine private property rights. This is evident in the recent imposition of mandatory gun access laws for property owners. Consider, for instance, the widespread right-wing support for the use of eminent domain to build President Donald Trump’s border wall, advocacy of laws forcing social media firms to host speech they object to, and legislation barring private owners from imposing coronavirus vaccination requirements as a condition of entry on their land….

There are long-standing anti-property tendencies on the left. Many support “NIMBY,” zoning restrictions, and the harmful use of eminent property. However, this does not excuse the increasing bad behavior of those in the right.

This article was partly adapted from a longer, earlier essay that I wrote about this topic for Duke University Center for Firearms Law.