‘Gun-at-work laws’ violate the property rights of business owners

When an earlier version of this bill was passed by an Iowa Senate subcommittee, “the Second Amendment prevailed,” according to a local news article. But that reflects a common misunderstanding: These laws do not defend constitutional rights. I support strong Second Amendment rights to keep and bear arms, but the amendment constrains only 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.

As the Duke University legal scholar Jacob D. Charles has pointed out, gun-at-work laws help to demonstrate that parts of the gun-rights movement has moved on to a new phase. The first wave sought to strike down government regulations that were seen as unduly restrictive of gun rights. (These campaigns culminated in the 2008 Supreme Court decision District of Columbia v. Heller, which established an individual right to bear arms, and McDonald v. City of Chicago (2010), which ruled that the right applies against state and local governments, as well as the federal government.) While efforts to extend these precedents have continued, a new wave began to target private property owners who have restricted the movement of guns on their land.

But this phase of the movement has overreached, even if it is promoted by conservatives using the rhetoric of individual constitutional rights. Scholars and courts have long recognized that the right to exclude people and objects of which they disapprove is a central element of property owners’ rights. 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]he right to exclude is ‘one of the most treasured’ rights of 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.

American cities have always regulated guns. Now, most can’t.

As Charles explains, gun-at-work laws gained momentum after an Oklahoma man sued his employer after he was fired for violating a no-firearms policy. An appeals court upheld the firing. But before it did, Oklahoma changed its law to ban “any policy or rule that has the effect of prohibiting any person, except a felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.” Other states soon began to jump on the bandwagon.

Proponents of strong Second Amendment rights should appreciate the link between private property rights and individual autonomy. One of the main advantages of being a property owner, after all, is the right to use your land as you see fit, even if other members of the community disapprove. That includes people who object to the presence of guns, for all sorts of reasons. Some may be staunch adherents of a philosophy of nonviolence; such autonomy deserves respect, even if you disagree with their views. For example, vegetarian property owners should have every right to forbid the presence and consumption of meat on their land, even if their neighbors disagree.

Anyone who values property rights should also be wary of imposing a one-size-fits-all rule on a wide range of property owners with very different situations and needs. Owners of shelters that serve victims of domestic violence, for example, sometimes forbid guns — including in the parking lot — to reassure their understandably fearful clients. Some businesses and other organizations have their own armed security guards, and might reasonably conclude both that these guards provide workers with sufficient protection and that adding more guns to the mix would reduce safety.

Allowing owners of various kinds of businesses and nonprofit groups to bar guns enhances not only the liberty of the owners themselves but also that of customers and clients who, for whatever reason, prefer to patronize gun-free spaces. Of course, some potential customers and employees prefer spaces where guns are allowed. But, in a diverse society with a competitive market, such options are likely to be plentiful, and that is especially true in the pro-gun “red” states that have enacted the lion’s share of parking-lot and gun-at-work laws.

In addition to undermining property rights, many mandatory gun-access laws may also violate the Takings Clause of the Fifth Amendment. That argument leans on last year’s 6-3 ruling in Cedar Point Nursery v. Hassid — the one that concluded California could not let union organizers have temporary access to agricultural businesses. Before that decision, most experts assumed that, under Supreme Court precedent, only a “permanent physical occupation” of property qualified as a “taking” that automatically requires compensation. Most other state-mandated intrusions on property were subject to a complex balancing test, under which the government usually prevailed.

But in Cedar Point, the court held that “a physical appropriation is a taking whether it is 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. The union context led many to lose sight of the fact that the Cedar Point decision protects left-wing interests as well as right-wing ones.

Gun laws were meant to ban private militants. Now, our hands are tied.

Sadly, the imposition of mandatory gun-access laws on property owners is part of a more general recent turn against private property rights by many conservatives. 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. Washington Post columnist Catherine Rampell noted that the Republican Party has turned against free markets, and has instead decided that “the primary economic role of the state is not to get out of the way,” but “to reward friends and crush political enemies.” Attacks on private property rights are a case in point.

The left, of course, has its own 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.

State laws forcing unwilling private property owners to allow guns on their land are both an affront to property rights, and a violation of the Constitution. Even staunch supporters of gun rights should oppose them.