Tennessee Sacrifices Property Rights On The Altar Of ‘Gun Rights’

Legislators in Tennessee have taken the "gun rights" argument further than it was ever intended to go.

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Last week, Tennessee Governor Bill Hanslem signed into a law a bill that prohibits employers from forbidding employees from keeping guns in their car even when parked on property owned by the employer:

NASHVILLE, Tenn. (AP) – Gov. Bill Haslam has signed legislation that allows workers to sue their employers if they are fired for storing guns in cars parked on company lots.

The Republican governor signed the measure this week.

Both chambers overwhelmingly passed the measure despite opposition from the Tennessee Chamber of Commerce.

The state in 2013 enacted a law to give handgun-carry permit holders the right to store their firearms in vehicles on company lots regardless of their employers’ wishes.

But an attorney general’s opinion later found that while the law decriminalized the actions of those who ignored posted gun bans on private property, employers could still terminate workers for violating company firearms policies.

Tennessee is not the first state where this issue has come up, of course. Other state legislatures, especially in states where there are already laws that are rather liberal in permitted both the open carrying of weapons in public and concealed carry, in some cases without having to receive any separate license from the state. In many of those states, motivated in no small part by incidents of workplace violence that have occurred around the country, and no doubt also motivated by concerns over their own liability in the even of some future tragedy, employers have adopted policies barring employees from carrying weapons while on company premises. To the extent that some of these employers are businesses open to the public, the rules have also been expanded to regulate the ability of customers to bring their weapons on company premises. Quite often, these efforts by employers and business owners to regulate the presence of weapons on their property has been met with resistance by gun rights advocates who see these policies as some sort of infringement of their rights and have responded both with protests and, in several cases, legislation such as what was passed into law in Tennessee last week. Given the political influence that these groups have in many states, it’s not surprising that they’ve been successful, even though what they’re advocating is quite clearly an infringement of private property rights.

George Scoville made this observation when he wrote about the first generation of this Tennessee bill two years ago:

Store and office building owners voluntarily buy leisure from employees with wages and benefits, which may include a parking spot, or they voluntarily offer parking as an amenity to consumers in exchange for patronizing their place of business. Employees and consumers alike want to bring firearms with them to the workplace, for purposes of personal protection. But some employers who are anti-gun, for perhaps a multitude of reasons (political ideology, property insurance premium prices, etc.), decided they wanted to prohibit guns from their property. The current law attempts to protect these employers’/owners’ rights to determine who may receive their permission to enter their property, and under what conditions.

Now come gun owners, asking the legislature for a law to effectively criminalize firearm prohibition on private property. Employers and property owners erred in the first place, asking the legislature to step in and criminalize firearmpossession. But now both groups seek a government intervention to compel the other group to acquiesce to the terms of an otherwise voluntary commercial exchange! In 2011, the Tennessee GOP gained control of both chambers of the assembly and the governor’s mansion for the first time in history. It’s maddening to watch a Republican Party hell-bent on using big government to solve “problems.”

To toss aside one argument that some advocates of these types of laws make, it’s rather obvious that what were are dealing with here is most emphatically not a Second Amendment issue. Regardless of what one might think about the nature of the right that amendment protects, the one this that is absolutely clear is that it solely applies to actions taken by government entities. Just as there is no such thing as a First Amendment right against a private individual or business that would allow one to stand on their property and spout off political opinions, there is no right under the Second Amendment that would permit a gun owner from forcing a property owner to allow them to bring on gun on their property. This is because, as a general rule, the Bill of Rights applies solely to government action and does not create any kind of enforceable right between individuals. Because of this, it simply non-sensical to talk about this Tennessee law in the context of the Second Amendment.

If there is one actual right that’s at issue here, it’s the one that is being violated, namely the private property rights of business owners and employers, a right that necessarily includes the right to determine the rules upon which someone will be granted access to that property. Unlike the non-existent Second Amendment right of employers to keep a gun in their car, or on their person, even if the property owner says other wise, these are real rights of long-standing in the Constitution as well as in American law and in the British Common Law on which it’s based. While some may dismiss a new government rule that limits in yet another manner the way that property owners may use their property as a minimal reduction in rights, Dustin Siggins is correct when he points out that laws like the one in Tennessee involve nothing less than the state abrogating the rights of property owners in the name of a non-existent right:

Tennessee Republicans decided that the Second Amendment rights of employees have priority over the property rights of employers.

Second, this violates the idea that government should, for the most part, let private actors handle their own issues. Like the Obama administration’s abortifacient, sterilization, and contraception mandate, however, the Tennessee government has unnecessarily decided to declare that employees have rights to employer property.

(…)

The real issue is the principle of liberty. A business owner should have the liberty to serve whomever he or she wishes, and a customer can take it, leave it, or boycott it. Likewise, should my employer not allow Bibles on campus, I — an orthodox Catholic — can either accept that policy, negotiate to change it, or work elsewhere.

Jazz Shaw brings up an issue that others I’ve spoken with about these types of laws frequently mention:

There is also the question of where the employer’s “property” ends, which Dustin correctly notes in his piece. True, the parking lot is the property of the employer, but does that make the employee’s automobile their property as well? You either allow employees to park in your parking lot or you don’t. What they have in their cars – assuming it’s legal – is really their business if it’s not being brought into the workplace and potentially affecting the owners and staff. In a parallel case, many employers with security concerns do not allow workers to bring their cell phones into the office because of the camera and audio recording capabilities of modern phones. But they pretty much universally allow the workers to lock them in their cars while at the office. And most importantly, that scenario applies to a device which isn’t even covered by your constitutional rights.

This law seems to me to have been a good compromise. The employer can bar carrying weapons in the workplace, but the employee’s car is not the workplace. And punishing them for such storage is an unreasonable burden on their constitutional rights.

Again, the emphasis on constitutional rights is completely inappropriate because the rights protected by the Constitution do not apply to relationships outside of the relationship between the individual and the state. The fact that an employee may have the right to carry a weapon in public does not mean he has a right to bring that weapon onto his employer’s property, or anyone else’s for that matter. At the same time, Jazz’s point regarding whether the employer’s property rights extend to the employees car is, on at least some level, a valid one. Taken to it’s extreme, after all, the property rights argument means that the employer would have the right to search an employee’s car to determine if they have brought a firearm on company premises. It’s already the case, however, that private entities have far more authority to conduct such searches because the Fourth Amendment does not apply to them. More importantly, even taking this concern about mass searches being conducted by employers into account, it quite simply doesn’t justify the idea of the government intervening on the side of employees or customers and essentially allowing them to violate the property rights of the business owner. Furthermore, if one takes the car argument to its logical conclusion then employers and business owners shouldn’t even have the right to prevent individuals from carrying weapons on their person on company property. After all, as Siggins notes in his post, if a car is autonomous from the parking lot on which it’s parked then surely the body of an individual would be as well. The problem with this view, of course, is that it extends Second Amendment rights far beyond where they were intended to go and does real damage to property rights in the process.

In the end, if an employee does not like the fact that his or her employer forbids weapons on company premises, then they are free to find another job. Alternatively, they could try to persuade their employer to change the rule. What they aren’t free to do, though, is use the power of the state to have their preference turned into a right and, in the process, damaging the actual rights of property owners.

FILED UNDER: Guns and Gun Control, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Grumpy Realist says:

    It seems to me that an employer could deal with this simply by getting rid of all parking lots on their property….

  2. Gustopher says:

    From the quoted bit by Dustin Siggins:

    A business owner should have the liberty to serve whomever he or she wishes, and a customer can take it, leave it, or boycott it. Likewise, should my employer not allow Bibles on campus, I — an orthodox Catholic — can either accept that policy, negotiate to change it, or work elsewhere.

    That’s just crazy talk, with the first sentence saying the business owner can refuse to serve black people, and the second being in direct violation of the first amendment (unless the hypothetical employer bans all personal effects).

    I know that the libertarian position is that property rights reign supreme, and that he who has the most property has the most rights, but that doesn’t comport to reality.

  3. Gustopher says:

    I don’t think the NRA will be happy until currently armed people are considered a protected class — If you are legally obligated to allow a black person to do something or be somewhere, then you are legally obligated to extent the same welcome to someone carrying a weapon designed to kill you.

    I considered using women as my example, rather than black people, but separate bathrooms for gun nuts would rub them the wrong way. They would however like nursing rooms, where they can be alone with their weapons.

  4. @Gustopher:

    Which part of the First Amendment bars a private employer from barring religious tracts in the workplace?

  5. Gustopher says:

    @Doug Mataconis: You’re right, I believe it is the civil rights act of 1964 that makes discrimination based on religion illegal. Getting most of my legal knowledge here from corporate training on who I can and cannot legally discriminate against in the hiring process.

    But, the only legally safe way to ban someone from having a bible at work is to ban all personal effects — and enforce that ban equally. May need some justification for the ban because of the religious nature of the personal effect (various RFRAs across the country), so the bible ban may only be safe in sterile environments or around heavy machinery.

  6. SC_Birdflyte says:

    It occurred to me some time ago that the strategy of the NRA and others of its ilk is, every year, to push the boundaries of “gun rights” further and further until there are no effective prohibitions enforceable under law. I could even go along with that, provided a constitutional amendment were passed and ratified declaring that individuals may exercise their right to keep and bear arms in any location within the U.S., specifically to include the U.S. Capitol and all congressional and Senatorial offices, as well as the U.S. Supreme Court building. Do you think Wayne LaPierre could get excited about that?

  7. Gromitt Gunn says:

    Well, if employers can terminate employees because they don’t like the bumper stickers on the employees’ vehicles (which is the legal in some states) parked in the employers’ parking lot, then they should be able to fire employees who bring guns onto their parking lots as well. It seems like a directly analogous example.

  8. Another Mike says:

    James P. said:

    Either people have fundamental rights which are not subject to the whims/vote of a majority or they don’t.

    Yes, that is the heart of the matter. It goes all the way back to the Civil RIghts Act of 1964 and was the reason that Goldwater refused to sign it. He believed it was unconstitutional. He was a libertarian and opposed the act’s restrictions on private property. He believed the act exceeded Congress’s powers under the commerce clause of the Constitution.

    If the government has the authority to tell you that you have to serve whoever comes through your door seeking your services, it has the authority to tell you to let them park their car in your customer parking lot, and has the authority to tell you it is not your business what is locked in the customer’s car as long as it is legal to have. The same applies to employers and employees.

    It is a violation of the business owner’s right of association to have to associate with gay people and people with guns on their person or in their car in their lot. It is a violation of the business owner’s right to use his property as he sees fit.

    The trouble is that government tells business what they can and can’t do in so many ways, and has been doing so for so long that bringing up property rights or freedom of association or any other freedom at this point is just going to bring forth laughter.

    The solution in this case is not to have customer parking or employee parking on your property. Like many things in life it is a tradeoff. It works for you in some ways and against you in other ways. Personally I would have customer parking and more customers and just suffer the thought that someone could have a gun locked in their car.

  9. Lenoxus says:

    Another Mike:

    It goes all the way back to the Civil RIghts Act of 1964 and was the reason that Goldwater refused to sign it. He believed it was unconstitutional. He was a libertarian and opposed the act’s restrictions on private property. He believed the act exceeded Congress’s powers under the commerce clause of the Constitution.

    That same law made huge strides on strictly libertarian grounds, because it nullified numerous government-driven restrictions on personal rights. Libertarians themselves are the first to point out that Jim Crow didn’t merely consist of the actions of independent businesses, but of state laws, some of which were occasionally opposed by some businesses themselves (for example, train companies didn’t like having to increase the number of cars solely to accommodate segregation).

    I don’t personally believe that merely removing government-enforced segregation would have caused “whites only” signs to be removed by the hand of the market, as libertarians do (for one thing, if the vast bulk of business owners disliked segregation, they probably would have managed to get the Jim Crow laws eliminated well before 1964). However, it remains the case that the act was clearly a net gain on libertarian grounds, despite the “unfortunate” limitations imposed on pro-segregation businesses (which libertarians dismiss, however accurately or not, as a mere handful of economically backwards individuals anyway!).

    For Goldwater to strain on that gnat, while swallowing the camel of statist segregation — and for today’s libertarians to uphold this as the highest form of philosophical-bullet-biting integrity — is… curious.

    If the government has the authority to tell you that you have to serve whoever comes through your door seeking your services, it has the authority to tell you to let them park their car in your customer parking lot, and has the authority to tell you it is not your business what is locked in the customer’s car as long as it is legal to have.

    This line of thinking assumes that “government has the authority to do X” or “government lacks the authority to do Y” is the only salient question, when there are numerous factors to consider. Simplifying it is like saying that if we require cars to have seatbelts, we may as well require armchairs to have BDSM-style restraints, since there’s a blatant physical similarity between the two, and the only relevant question is whether the government has the authority to require that objects be manufactured with belts.

    In fact, my absurd slippery slope is still more sensible then yours, which involves vague hand-waving — “If Uncle Sam tells you to serve this type of person, then it can also tell you not to prevent that type of object from being on its premises.” One may as well go full-on anarchist here — at least the Schelling point is much clearer (on one side of the line government has laws telling you what to do, and on the other side it doesn’t).

  10. gVOR08 says:

    When the company’s insurance rates go up,as they should, can they sue the State of Tennessee, or the NRA?

  11. Lenoxus says:

    Here’s a though: a business should try challenging the Tennessee law on grounds of religious freedom (presuming a pacifist religion, such as Quakerism).

    Ah, but what about the employee who feels that guns are part of his religion, along the lines of Sikh daggers — and is already compromising by having them in the car rather than on his person in the workplace?

    How is the conflict resolved? Easily. Any court worth its salt knows that true religion is inherently more conservative (especially on social issues like homosexuality), and hence a supposedly anti-gun “religious belief” is practically a contradiction in terms, and probably a facade for some kind of secular Marxism. The Tennessee law is therefore immune to hypothetical religious challenge.

  12. James P says:

    @gVOR08: Why would their rates go up?

    Nothing puts out a welcome mat to criminals like a gun free zone?

    I would think a business which does not allow guns would be more (not less) likely to be a target of gun crime. Newtown, Aurora, etc were all gun free zones. Nobody seems to hold up gun ranges or NRA conventions. I wonder why.

    It’s also bad business. I refuse to patronize Panera precisely because they have a sign which says guns are not allowed. Why would I want to enter any building in which there is a sign announcing I am a sitting duck?

  13. icebox says:

    Nobody seems to hold up gun ranges or NRA conventions. I wonder why.

    To repurpose an old lawyer joke: Professional courtesy?

  14. An Interested Party says:

    This line of thinking assumes that “government has the authority to do X” or “government lacks the authority to do Y” is the only salient question, when there are numerous factors to consider. Simplifying it is like saying that if we require cars to have seatbelts, we may as well require armchairs to have BDSM-style restraints, since there’s a blatant physical similarity between the two, and the only relevant question is whether the government has the authority to require that objects be manufactured with belts.

    Unfortunately, many libertarians are often too simple in the way that they look at the world…

  15. James Pearce says:

    It’s maddening to watch a Republican Party hell-bent on using big government to solve “problems.”

    As a Non-Republican who never really bought into the “big government” stuff, I’d say what’s maddening is to watch a Republican Party hell-bent on using big government to solve these problems. It wasn’t that long ago that the GOP had a more significant raison d’etre than guns and gays. Remember when they looked out for national interests in addition to the interests of their factional voters? That was awesome.

  16. aFloridian says:

    @James P:

    I’ve thought about this a lot and I think it’s fault. I do think gun-free zones – schools, etc., are not really safer because of the lack of guns – spree shooter realize it will be like shooting sheep and they are unlikely to encounter resistance – half the time when they do finally run up against lethal police force they retreat and take their own lives.

    That said, I think there’s a different equation for businesses. I used to work at a bank that had been robbed with shots fired (I was not there) and reflected on our lack of firearms as bank employees. I think knowing the bank employees (or whatever business) is not armed makes criminal pretty comfortable coming in with guns if they want (also fake guns, knives, and notes) but there’s very little need to go in shooting or actually commit a gun crime other than brandishing.

    But consider armored car guards, gun store owners, for one, who are armed targets of crime. I think the statistics bear out that these individuals are unlikely to be attacked except by armed criminals willing, and much more likely, to use lethal force.

    So for commercial establishments it very well be true that the lack of guns make them easy targets of crime, but I think there’s less likely to be a robbery where the criminals come in guns blazing. Maybe then, you’ll say I’m saying that commercial owners ought to be gun free so they can be peaceful sheeple who just allow themselves to be passively robbed. I’m not really saying that, but there’s a bargain to be made there. Is arming your work force at the Waffle House likely to admit common crime, maybe, but is it worth risking their lives as armed employees? It depends on the industry and value I guess.

    I think it’s more complicated than gun free zones are always more dangerous or always more safe. There are many different types of gun-related violence and crime that can be aimed at a given setting. Spree shooters and bank robbers are entirely different in their motivations and their thinking.

  17. al-Ameda says:

    @James P:

    It’s also bad business. I refuse to patronize Panera precisely because they have a sign which says guns are not allowed. Why would I want to enter any building in which there is a sign announcing I am a sitting duck?

    in years passed, I often went into my daughters’ Kindergarten and elementary school classrooms for parent-teacher meetings and activities, and I always felt unsafe and threatened because no one was carrying a weapon.

  18. DrDaveT says:

    @Gustopher:

    I know that the libertarian position is that property rights reign supreme, and that he who has the most property has the most rights

    Those are actually antithetical positions. The former is what libertarians think they advocate; the latter is what they actually advocate. Libertarians don’t believe in ‘rights’ — that would imply obligations, to be enforced on individuals who do not choose to recognize them.

  19. OzarkHillbilly says:

    In a parallel case, many employers with security concerns do not allow workers to bring their cell phones into the office because of the camera and audio recording capabilities of modern phones. But they pretty much universally allow the workers to lock them in their cars while at the office.

    Hey Jazz? Call me when somebody goes postal with a cell phone and maims and kills a half dozen or more of their workmates. Until then, do not, do not, compare the two.

    Dumbest legal argument I have heard in at least…. a week or two.

  20. Another Mike says:

    @Lenoxus:

    For Goldwater to strain on that gnat, while swallowing the camel of statist segregation — and for today’s libertarians to uphold this as the highest form of philosophical-bullet-biting integrity — is… curious.

    I struggle to follow your line of thought. Goldwater was a champion of civil rights.

    “To many, Mr. Goldwater was a man of contradictions. He ended racial segregation in his family department stores, and he was instrumental in ending it in Phoenix schools and restaurants and in the Arizona National Guard. But he also voted against the 1964 Civil Rights Act, contending that it was unconstitutional, and he backed restrictive amendments to earlier civil rights legislation. ” (Washington Post Obituary)

    He was all for stopping every form or racial discrimination by government, but he did not think government could make discrimination by individuals illegal. Had his thinking prevailed, the country might have racially healed by now.

    The nation heals when people change, and hanging a sword over people’s heads is not the way to achieve healing. In time people would have learned to give and take, and to live and let live and everyone would have been much better off. What has happened now is that race has been weaponized. After fifty years one might have thought we could have done better.

  21. C. Clavin says:
  22. gVOR08 says:

    @James P: @aFloridian: I know I’m going to regret troll feeding, but you’ve provided an opportunity to say something necessary. You believe that guns make people and places safer. In fact they make people and places less safe. Rove was right when he was quoted describing conservatives as faith based as opposed to reality based. If you come on OTB and assert that guns make a space safer, you can expect to be challenged to present evidence, because that doesn’t seem to be true in the real world. See, for instance, this article on the NRA shutting down research on gun violence.

    The conservative commenters sometimes accuse the rest of us of taking for granted a liberal consensus. It’s not a liberal consensus, it’s the real world outside the conservative bubble. When you assert as true something from conservative Cloud Cuckoo Land the rest of us get to demand proof.

    How many times has an establishment you’re in been armed robbed? If your answer is more than mine, zero, you need to hang out in different places, not start packing. Guns do not enhance safety.

  23. wr says:

    @al-Ameda: “in years passed, I often went into my daughters’ Kindergarten and elementary school classrooms for parent-teacher meetings and activities, and I always felt unsafe and threatened because no one was carrying a weapon.”

    The only thing keeping you safe from a bad four year old with a gun is a good four year old with a gun…

  24. wr says:

    @Another Mike: “The nation heals when people change, and hanging a sword over people’s heads is not the way to achieve healing.”

    So I guess we should make murder, rape and robbery legal, because then people would just naturally stop doing these things.

  25. C. Clavin says:

    @gVOR08:
    C’mon…if the GOP was forced to face facts…there wouldn’t be a Republican Party. The entire organization is based upon lying to it’s constituents.
    http://s3.amazonaws.com/dk-production/images/1925/large/voting-republican1.jpg?1343149622
    You don’t have to be stupid to be a Republican. But if you’re stupid, chances are you are a Republican.
    As for guns…The NRA convinced every Republican that Obama was coming for their guns. Didn’t happen. Now the NRA is going to convince every Republican that Clinton is coming for their guns. Really. She is….

  26. al-Ameda says:

    @Another Mike:

    The nation heals when people change, and hanging a sword over people’s heads is not the way to achieve healing. In time people would have learned to give and take, and to live and let live and everyone would have been much better off. What has happened now is that race has been weaponized. After fifty years one might have thought we could have done better.

    ‘Live and let live’ is quite often not an acceptable approach when it comes to equal rights under the law. Quite often, people do not change – whether by mandate of law, or by benign neglect.

    We’re still not over the Civil War, and there are many people today who believe that racism against White people is a bigger problem than traditional/historical racism against Black citizens.

  27. Tillman says:

    The right has appropriated the left’s focus on individual social rights and used it to great success, that’s for certain. As the left encourages an identity politics (or as one emerges, whichever it is), the right does so as well. Being a gun owner is one of these identities that can be appealed to, and damn if it isn’t somewhat breath-taking. I mean, a dude massacred an entire kindergarten class, and from the outside it looks like we, as a nation, just collectively shrugged.

    Analogies and arguments specious or cogent aren’t going to cut it as much as they used to. You’re now personally insulting people when you say they can’t have their gun within a hundred foot radius of them at all times.

  28. icebox says:

    Another Mike:

    He was all for stopping every form or racial discrimination by government, but he did not think government could make discrimination by individuals illegal.

    You missed the subtlety of my point, which isn’t just “Goldwater opposed the Civil Rights Act and that’s bad.” I get the libertarian argument there, and I don’t think that merely believing in the libertarian take on anti-discrimination laws is somehow racist in itself. (Well, not more than what might be called “background-radiation racism”.)

    If the issue at hand is, say, the Affordable Care Act, libertarians are perfectly self-consistent in rejecting the whole thing, because none of it fits their worldview. I still find them “wrong”, but not on their own terms. (When liberals reject the whole thing because it’s not a universal system, because it’s a giveaway to insurers, etc — then there’s a conversation to be had about the law’s liberal merits and detriments.)

    However, my contention is that the Civil Rights Act was far more libertarian than not — or as I put it before, it was a net gain for libertarian principles. And I can base this argument entirely on points that libertarians themselves make — namely, that Jim Crow wasn’t solely the confluence of private-business decisions, but was hugely (perhaps primarily) the effect of state and local laws and regulations. Plus, libertarians tell us that market segregation would have gone extinct on its own, so it’s hard to contend that forcing this extinction through law is so terrible.

    Now, libertarians could contend that any law which violates libertarian principles is worth opposing, whatever else it does. And indeed, that’s kind of what’s being said here, and seems to have been Goldwater’s mindset. But as far as I see, that purism really isn’t consistently held, or else they would almost never vote Republican. Even Ron Paul is pretty conservative in a lot of ways. (For example, people often assume he must be pro-choice because libertarians are, but he’s definitely not. See also ) So purism isn’t a valid excuse to hide behind.

    What else is going on with libertarians giving the CRA a negative evaluation? I’m not actually sure — it’s not mere racism, because racism is found everywhere, and fails to explain anything in this particular instance. My hunch is that it’s a case of contrarianism, mixed with the fact that conservatives (with whom libertarians have allied significantly) are gratified to have available in their arsenal this kind of race-neutral argument against to civil-rights laws. (Among other things, it enables them to oppose modern-day equivalents regarding homosexuality and such without looking inconsistent.)

  29. Mikey says:

    @Another Mike:

    In time people would have learned to give and take, and to live and let live and everyone would have been much better off.

    How many years–or decades–do you believe it would have been appropriate for this to happen, keeping in mind the entire time millions of Americans would have been having their rights routinely violated and they themselves relegated to second-class citizen status?

    There are times government must fulfill its role as guarantor of rights through exertion of the force of law, when the alternative is allowing real harms to continue until some unspecifiable future time.

  30. grumpy realist says:

    It’s not the sensible gun owners I worry about; it’s the “gotta hev ma gun with me at all times” idiots.
    If you need your gun to feel safe when you walk into a coffee shop, either move to a different neighborhood or stop being such a frickin’ coward.

    Too many gun nuts are enamored with the dream of being the Guy Who Saves The Day when the nasty Baddie pulls out his gun and starts firing. Fact is, the Baddie is probably going to have noticed you already so you’re going to be Target Numero Uno for him. Second, even if you aren’t Target Numero Uno for him, what do you think the police are going to do when they reach the scene? Do you think they’re going to notice your Good Guy demeanor and notice that you’re wearing a White Hat while the Baddie is wearing a Black Hat? The eff they will. They’ll go after anyone waving a gun around, period.

  31. KM says:

    @Another Mike:

    The nation heals when people change, and hanging a sword over people’s heads is not the way to achieve healing.

    This is how the dominant group talks. They have the luxury of “healing” over time because it wasn’t their wounds to begin with nor their struggles being prolonged. They want social change at their speed, under their direction. It’s yet another way to keep a minority group down – “sure, you can have your change but on our schedule and no sooner”. It is truly demeaning in it’s patronizing condescension because it implies that the rights are a gift/privilege from society and they are graciously allowing the minority group to have them.

    Someone that needs to be held at swordpoint to do the right thing will most likely never choose to change their minds. If it’s reached the point where negotiation, social and economic pressure, moral strictures and even straight out condemnation won’t persuade them, they’re never coming over to the light side. Their “healing” is irrelevant because it is not and never has been about them. It’s cruel to make someone wait for their natural due because some stubborn idiot can’t be bothered to be a decent human being and has to be a drama queen about how they need to time and space to “heal” from all this racial/social/economic/sexual/ WTF-ever division first before anything can happen.

  32. Lenoxus says:

    Another Mike:

    He was all for stopping every form or racial discrimination by government, but he did not think government could make discrimination by individuals illegal.

    You missed the subtlety of my point, which isn’t just “Goldwater opposed the Civil Rights Act and that’s bad.” I get the libertarian argument there, and I don’t think that merely believing in the libertarian take on anti-discrimination laws is somehow racist in itself. (Well, not more than what might be called “background-radiation racism”.)

    If the issue at hand is, say, the Affordable Care Act, libertarians are perfectly self-consistent in rejecting the whole thing, because none of it fits their worldview. I still find them “wrong”, but not on their own terms. (When liberals reject the whole thing because it’s not a universal system, because it’s a giveaway to insurers, etc — then there’s a conversation to be had about the law’s liberal merits and detriments.)

    However, my contention is that the Civil Rights Act was far more libertarian than not — or as I put it before, it was a net gain for libertarian principles. And I can base this argument entirely on points that libertarians themselves make — namely, that Jim Crow wasn’t solely the confluence of private-business decisions, but was hugely (perhaps primarily) the effect of state and local laws and regulations. Plus, libertarians tell us that market segregation would have gone extinct on its own, so it’s hard to contend that forcing this extinction through law is so terrible.

    Now, libertarians could contend that any law which violates libertarian principles is worth opposing, whatever else it does. And indeed, that’s kind of what’s being said here, and seems to have been Goldwater’s mindset. But as far as I see, that purism really isn’t consistently held, or else they would almost never vote Republican. Even Ron Paul is pretty conservative in a lot of ways. (For example, people often assume he must be pro-choice because libertarians are, but he’s definitely not. See also ) So purism isn’t a valid excuse to hide behind.

    What else is going on with libertarians giving the CRA a negative evaluation? I’m not actually sure — it’s not mere racism, because racism is found everywhere, and fails to explain anything in this particular instance. My hunch is that it’s a case of contrarianism, mixed with the fact that conservatives (with whom libertarians have allied significantly) are gratified to have available in their arsenal this kind of race-neutral argument against to civil-rights laws. (Among other things, it enables them to oppose modern-day equivalents regarding homosexuality and such without looking inconsistent.)

  33. gVOR08 says:

    @wr:

    The only thing keeping you safe from a bad four year old with a gun is a good four year old with a gun…

    There was a recent case in Cleveland where a three year old accidentally fired a hand gun and killed a sibling toddler. This sort of thing happens with monotonous regularity.

  34. gVOR08 says:

    @Lenoxus:

    background-radiation racism

    I’m gonna steal that line. All my conservative friends swear they’re not racist. Every one of them obviously is racist, at least to a “background-radiation” level. Self awareness is not a front line skill on the Right.

    I disagree with you when you say a libertarian case can be made against the ACA. Like the Civil Rights Act, the ACA clearly increases the net liberty in the country. Or rather you can only make a libertarian case if you come clean and admit that as a libertarian you only object to government restrictions on liberty, that other restrictions, especially ones that don’t bind on you personally, don’t count.

  35. Tillman says:

    @gVOR08: I think the sensible libertarian would understand government only as the gravest threat to liberty, not the only threat. Political libetarianism though, such as it is, only has the government to go after in our Duvergered politics.

  36. gVOR08 says:

    @Tillman:

    sensible libertarian

    Did you type that with a straight face? 😉

  37. Jenos Idanian #13 says:

    This article has me thinking and re-thinking and thinking again. I’m finding it downright fascinating, and at this point I really don’t have an opinion.

    My first thought was that this was a simple matter of conflicting property rights, and since the employer’s property is considerably more substantial and less mobile, I wanted to side with the employer.

    But Jazz’s comments made me reconsider, and come at it from a slightly different example. What if we took away the very loaded (yeah, I went there) subject of guns, and substituted in other restricted but otherwise perfectly legal items?

    I’ve been spending a lot of time at a hospital lately (for anywhere from an hour to a week), and the property is positively littered with “THIS IS A TOBACCO-FREE CAMPUS.” Does the hospital have the right to ban tobacco from inside someone’s car? Even if it’s locked up, unsmoked, and in a sealed container inside the car?

    There are states where marijuana is legal for recreational use. Do businesses have the right to post signs saying “NO MARIJUANA ON PREMISES” and forbid people from keeping their pot in their cars?

    The conflict here is we have “nested” property rights. One’s car is one’s personal property, but it’s contained within (temporarily) another’s property. Does that create a “bubble” where the lot owner’s rights don’t apply? Do the car owner’s rights vanish when they enter that “bubble” of the lot? Or is there some kind of compromise at play here, where both rights are compromised to a certain degree?

    How about condominiums? Can a condo association exert that degree of control over the property rights of an individual owner? Suppose they have a “no pets” rule. One owner brings in a fish bowl with a single fish. The fish is transported into the unit in a sealed container, and never leaves the unit. There is zero affect on any other resident — the pet never enters into any common area, never encounters any other people outside of the owner’s unit. Could such a ban be imposed?

    And what the hell, this makes me think of abortion. The woman’s rights over her body are, generally, considered pretty much absolute. However, within that absolute zone, there exists a fetus that, some believe with absolute sincerity, is alive and has its own rights. (I’ve found only the extremists deny that the fetus is alive until it is actually born, and has zero rights until that point, but the majority prefer to say that those rights are inferior to that of the woman. I understand and respect that argument.)

    Man, this one is a real can of worms. How should we deal with “nested” property rights? Is there a single principle, or should we deal with each case on an individual basis?

    Thanks, Doug, for bringing this to our attention.

  38. C. Clavin says:

    @Jenos Idanian #13:
    It’s f’ing hilarious that you think a business should be able to deny services to people just because they are gay or are black or whatever based soley upon religious freedom silly superstitions…and yet that the same business would have no right to keep guns off their property.
    I know you are nothing but a troll…but couldn’t you at least be a intellectually consistent troll?

  39. Jenos Idanian #13 says:

    @C. Clavin: Sod off, Swampy.

    You have an exceptionally small and narrow and limited mind, Cliffy. You only see in very limited stereotypes, and then rant and rage when others don’t fit into the roles you’ve defined for them.

    News Flash, Cliffy: not complying with your delusions is hardly dishonest. You don’t get to impose your very limited thoughts on the world,a nd demand that everyone abide by them.

    Somehow you think that every thread here is solely so you can make unwitty witticisms and espouse your very simplistic beliefs and insult those with whom you disagree. I don’t know where you got that delusion, but you really need to get it fixed.

    Now, please, go away. Your habit of spraying spittle on everyone around is is quite distasteful.

  40. C. Clavin says:

    @Jenos Idanian #13:
    So you got nothing…you could have just typed that.

  41. Jenos Idanian #13 says:

    @C. Clavin: So you got nothing…you could have just typed that.

    You’re right. I have nothing to say to you. You are incapable of actually holding a civil conversation, you are incapable of understanding any concepts above “me good, you bad,” and you bring nothing to any kind of intelligent discussion. So I should just always keep that in mind and not even bother to deal with you, as you can’t even grasp how incredibly stupid you make yourself look whenever you open your mouth.

  42. Jenos Idanian #13 says:

    @C. Clavin: I’m already regretting this, but…

    Let’s talk consistency, Cliffy. (You don’t rate the term “intellectual.”) Here you’re arguing that a business’ rights trump the individual’s rights. That the corporation here has the right to declare that its rights are superior to the right of the individual. You’re siding with Big Business over The Worker. Where the hell is your consistency, Cliffy?

  43. C. Clavin says:

    @Jenos Idanian #13:
    Telling that you refuse to even attempt to reconcile your inconsistent and contradictory positions.
    Just for starters…the person with the

    very limited thoughts on the world

    is the one that justifies discrimination…not the one who is against it.
    The one with that can

    only see only see in very limited stereotypes

    is the one that would deny the rights of others…not the one that advocates for equal rights for all.

  44. Jenos Idanian #13 says:

    @C. Clavin: You didn’t even notice that I didn’t express an opinion on this issue, and explicitly said I didn’t have one yet. I can see both sides, and both have merits. It’s a very complicated issue. And a fascinating one. (For those who can actually think, that is — no wonder you have nothing of value to offer.)

    Which explains why you’re doing your usual frothing and raging — you can’t handle complicated issues, and need to reduce them to absurdly simplistic terms. And for you, the only basis you can work from is “me good, you bad.”

    SO not worth my time.

  45. sam says:

    @Jenos Idanian #13:

    How about condominiums? Can a condo association exert that degree of control over the property rights of an individual owner?

    Well, look up”Home Owners Association” for a walk through real tyranny. The closest any of will us come to living under a totalitarian regime. I don’t want to use the N-word (the other N-word), but they is it.

  46. Jenos Idanian #13 says:

    @sam: I have no experience with condos, and from what little I know I am probably one of the worst kinds of people to own one (for a multitude of reasons), but it struck me as another example of “nested property.”

    On reflection, it might not have been the best one, but it does technically qualify. You own the condo, but it’s entirely contained within another’s property.

  47. C. Clavin says:

    @Jenos Idanian #13:
    Wow…are you so seriously disadvantaged in reading comprehension that you have no idea what it is that you type???
    You argue that a business can deny the rights of gays acting fully within the law, but may not deny service or access to armed persons. That is wildly inconsistent.
    A business should not be allowed to abridge the civil rights of anyone, and at the same time should maintain their property rights — which include the right to deny service or access to anyone who is armed, or without shirts or shoes, or intoxicated, or being obnoxious, or whatever. These two things are completely different. But…admit it…you simply hate gays and love guns…like a good Republican dupe…and your world view is based on those prejudices.
    Let that marinate for a while. Then go away.

  48. Jenos Idanian #13 says:

    @sam: Another element that might be worth considering is the “dependence” angle. A fetus and a condominium ad entirely dependent upon their containing environment; a car in a parking lot is not. And if one is dependent upon that surrounding body, then that complicates the issue considerably.

    Other elements that occur to me that might also be worth considering are the duration of the occupation, and the burden imposed upon the occupied. A car in a lot is very temporary and very little imposition; a fetus is there for a set time, but very demanding; and a condo is permanent, but essential to the structural integrity of the whole.

    This really is a can of worms, isn’t it?

  49. Jenos Idanian #13 says:

    @C. Clavin: Cliffy, you don’t have to keep repeating that you have nothing to contribute to the discussion except personal insults. WE GET IT. EVERYBODY GETS IT.

    Also, who the hell died and appointed you hall monitor?

  50. C. Clavin says:

    @Jenos Idanian #13:
    Again…nothing but comparing cars and fetuses as if it was a brilliant insight.

  51. Jenos Idanian #13 says:

    @C. Clavin: For the love of God, Cliffy, just…. stop. You’ve actually got me feeling sorry for you. And I didn’t think that was even possible.

  52. C. Clavin says:

    @Jenos Idanian #13:
    That’s called projection, and is common in psychopaths such as your self.

  53. Jenos Idanian #13 says:

    @C. Clavin: For the love of God, Cliffy, just…. stop. You’ve actually got me feeling sorry for you. And I didn’t think that was even possible.

  54. Another Mike says:

    @icebox:

    You missed the subtlety of my point

    Perhaps I did, but what I note is that Goldwater thought the law was unconstitutional and I believe his argument was valid. The Constitution did not give government’s the power to stop individuals from discriminating. I am not a libertarian. I am a traditionalist and a conservative.

  55. Another Mike says:

    @KM:

    It is truly demeaning in it’s patronizing condescension because it implies that the rights are a gift/privilege from society and they are graciously allowing the minority group to have them.

    Rubbish. Slavery and discriminatory racial laws were violations of the principles which this nation was founded upon. They were wrong from day one, and the founders knew this, but were unable to eliminate them and still have a country. Constitutional rights are our birthright, and to withhold them from blacks was to deny them what was theirs. That is the definition of injustice. I simply do not know how you conjured up a phrase like a gift/privilege graciously bestowed by society.

    Jim Crow was a grievous injustice and should have never happened. Jim Crow was foremost a legal injustice, an institutional injustice carried out by government. The civil rights laws should have corrected that and left it at that, but they went too far also making discrimination by individuals illegal. One can argue that it would have taken too long to change people’s behavior any other way. Maybe so, but we can never know for sure. I don’t think we can say today that we achieved entirely what we set out to do. There seems to be a lot of slippage, and it may be getting worse.

  56. JamesW says:

    @Another Mike: Isn’t that pretty much what Colorado and other places are doing with the issue of forcing bakers to bake cakes for gays, but not forcing gay bakers to bake cakes for straights? And what about that Memories Pizza place that everyone got so upset about in Indiana? They have no problem serving gays, but would like to refrain from catering a gay wedding, and everyone freaks out. So – the question is how do you protect the business owner’s rights in light of all this other nonsense that people claim are rights? If it is discrimination to not bake a cake, is it discrimination to not allow someone to keep a gun in their car? How much control of our lives are we going to allow the goernment to take?

  57. Lenoxus says:

    JamesW:

    Isn’t that pretty much what Colorado and other places are doing with the issue of forcing backers to bakes cakes for Gay people, but not forcing gay bakers to bake cakes for straights?

    I’d be surprised at even a single example of any wedding-industry business (gay-run or otherwise) outright refusing to provide services to opposite-sex marriages, except as a tongue-in-cheek joke that would vanish when an actual straight couple asks for services. For one thing, that’s a large market to rule out.

    Sure, they could tell the couple “We’d be out of our depth because we specialize in gay weddings only, but we’ll help if you want” (an excuse whose equivalent is always available regarding gay weddings, by the way) but total refusal? Unlikely.

    And if they did try it, they probably wouldn’t even have a religious defense handy — what government-recognized religion opposes heterosexuality?

    And what about that Memories Pizza place that everyone got so upset about in Indiana? They have no problem serving gays, but would like to refrain from catering a gay wedding, and everyone freaks out.

    If you would refrain from catering a gay wedding (and not from a straight one), then you do have a problem serving gays, by definition. It doesn’t matter if you’d be willing to serve them in another context. Yeah, it’s great that you’re not 100% bigoted, but you’re still more than 0% here; you’re still treating them unequally. It’s like a hardware store that won’t sell ladders or lawnmowers to women; that you’re happy to sell them measuring tape and keychains doesn’t excuse.

  58. Grewgills says:

    @Another Mike:
    Have you spent any time in the deep South? Absent civil rights legislation there would to this day and into the foreseeable future still be large pockets in the South and MidWest that would remain as virulently segregated along racial and religious lines as they were in the 50s and before. How long should communities be allowed to relegate people to second class citizen status before the state steps in?
    If no shop or restaurant will serve you, no property owner will sell or rent to you, no club accommodate you, what is your life like? How can you support a system that would allow that?

  59. Grewgills says:

    @Lenoxus:
    Don’t bother, this troll simply changed the last letter of his nym to evade his banishment.

  60. An Interested Party says:

    Had his thinking prevailed, the country might have racially healed by now.

    BWHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!!!!!!!!!!!!!!!!!! Yes, of course, because if only the hand of government hadn’t forced people not to legally practice their racism then there would be no racism in this country…you must live on Fantasy Island…tell Tattoo I said hello…

  61. Mikey says:

    @Grewgills:

    How long should communities be allowed to relegate people to second class citizen status before the state steps in?

    It takes as long as it takes, and the intervening decades of discrimination and maltreatment are just the price those unfortunate minorities have to pay so the white folks can be spared the oppressive hand of government.

  62. HFB says:

    “At the same time, Jazz’s point regarding whether the employer’s property rights extend to the employees car is, on at least some level, a valid one. Taken to it’s extreme, after all, the property rights argument means that the employer would have the right to search an employee’s car to determine if they have brought a firearm on company premises. It’s already the case, however, that private entities have far more authority to conduct such searches because the Fourth Amendment does not apply to them. “

    I’m not sure what you mean here…from a practical standpoint.

    Are you arguing that they could force them to give them access to the car? Bodily searches? Worse? The employee relationship would be a little tighter in that way but a customer? Good bye business, hello bankruptcy once the public finds that out.

    I don’t think you are restricted with probable cause or warrants but you don’t have any authority to the actual searching of me at all. Demand all you want, I can refuse. You’ve not been given those rights…or my Constitution is waaay out of date 🙂

    While I like the intent of the law, it’s the wrong way to do it and I just don’t think it should have been passed.