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Thread: Constitutional conflict

  1. #1
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    As I read through these threads and see the reports of our numbers getting into hassles with store managements, a thought has occurred to me. Although we do have the right to carry, as defined by 2A, the state constitution and RCW 9.41, the stores have their rights under property law and supporting constitutional sections. It seems to me that the property right trumps gun rights in most of these cases, if the management chooses to press the issue by charging trespass. So can we ever win in these situations, or does it boil down to simple negotiation?

    Are there any constitutional lawyers out there?

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    They can only charge trespass if you refuse to leave when asked. I don't see forcing a property owner to allow people he doesn't want on his property as a "win". That would mean I could be forced to allow things on my property I don't want.

    While I carry daily, I am only OC about 3-5% of the time. Going into stores and such CC means it isn't an issue, I don't always have the time or desire to educate folks.

    When there is an option between a 2A friendly store and an Anti-2A store, I'll gladly vote with my dollars, but in some areas and for some things there aren't options. They may prefer to not have guns in their store, but what they don't know won't hurt them. If I am not breaking the law, I have no qualm about ignoring their wishes in regards to preferences that are not part of the retail transaction.

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    I think you don't have it right about the property managers. I'm not talking about forcing a property manager to do anything. I'm referring to the manager's using his property rights to eject me from his property, which would trump my 2A rights. The question is about the conflict between property rights and gun rights.

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    I agree with Richard.

    Many here are quick to automatically assume that the owner's "property rights" trump my right to self-defense. The argument goes a lot like 911Boss's about being forced to allow things in our homes, etc. I'm not sure it's that clear-cut.

    Property owners are already not allowed to bar certain people from their establishments. I can't open a "whites only" restaurant. I can't have stairs to my shoe store and refuse to make accomodations for those in wheelchairs, etc. I can't allow smoking in my restaurant and tell non-smokers that they can take their business elsewhere if they don't like it.

    Right or wrong, the courts have already made the decision that when private property is opened to the public for commerce or employment, my unrestricted private property rights go out the window. Businesses (even sole proprietorships) don't have the same property rights as individuals do in their home. I can run around nude in my home all day, but guess what happens when I try that in the business that I own around my employees, or in the gift shop I own down by the beach.

    There is more to this than just gun rights vs. property rights in black and white. I'm not yet convinced that a business owner's property rights trump my right to self-defense when he chooses to open his business up to the public.

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    Since most stores are owned by large corporations the managers have to follow guidelines given to them from "on high". If the parent company has a policy of no guns then that is to be respected of course. Some managers have invinted policies on the spot or imposed the guidelines for employees on customers. For instance Wal-Mart has a policy of allowing legally carried guns per the laws of the state they are in.

    I have never been asked to leave a store because of my gun, but if I was I would leave and not finish or checkout my shopping. Then I would follow up with corporate headquarters and find out their policy for guns. If they allow all legally carried guns I would follow up with a complaint about the manager. If they don't I would politely tell them I can go other places that like my money and my gun.

    Another thing to consider is that some stores may be legally considered "public places" This is how you can see petition gathers getting signatures without the consent of the property owner. I'm not sure for the laws in Washington on that matter...

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    As property rights are the very basis of liberty, I always smile on anyone who respects the wishes of a property owner. If you don't like it, don't go on their property.

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    I would hope that the property owners rights would trump another's who is on their property. You are on their property, respect their rights or leave, no one forced you to go onto private property. If I can decide to keep my own mother off my property, for whatever reason, I should be able to keep a stranger with a weapon off my property if I want. If you don't believe in property rights, then the end result would be that anyone can come into your house at anytime, and take your property, and you don't have anything to say about it.

    If it is a business that has a "gun ban", you can try to contact a decision maker, and try to educate them to the fact that they should consider allowing citizens with firearms on their property/business.

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    So many logical fallacies, so little time...

    If you don't believe in property rights...
    Strawman. No one has claimed to not believe in property rights.
    anyone can come into your house at anytime
    False analogy. Businesses "public accomodation" are already restricted in various ways. You can't order blacks or Catholics out of your restaurant. You can't post a sign saying "Irish not welcome." A business is not your house. Breaking and entering is not analogous to exercising your right to self-defense while at a place open to the general public.

    and take your property, and you don't have anything to say about it.
    Another false analogy. No one here has advocated theft.

    Is there really no good argument for the "self-defense should be less protected than religion" argument? I can't ban Muslims from my business, but I can (and should be able to) ban people from having the means of lawful self-defense?

    Every argument in favor of banning gun owners falls back on the same weak arguments and false analogies.

    Some questions... all are simple yes/no.

    Should I be able to ban whites from my restaurant?
    Should I be able to ban Christians from my shopping mall?
    Should I be able to ban women from my gas station?

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    Let's try to focus this a bit more. Some of you have made some great observations, and I'll point them out as I develop my next thesis.

    My concern was about property owners' right to eject anyone they choose from their property. My question had to do with the conflict between their rights and ours under 2A, et.seq. 911Boss said they can only charge trespass if I refuse to leave when asked. That's hitting the nail on the head. So here the question becomes How absolute is their right. On our side, our rights are not absolute, e.g. we can't walk down the street with a machine gun and full belt of ammo (but wouldn't that be a blast?). Bobernet said something similar: property owners can't bar certain people from their establishments. Again, he's 100% So I think we're agreed that the property rights are limited, as are ours.

    Imagine this scenario: a store manager asks me not to OC in his store. Next day I come back, again OC'ing. Manager calls 911 and has me arrested for trespass. Now the legal question is Was the arrest lawful? If you were the judge on this case, (or jury foreman) how would you rule? I think here is the nub of the issue. I think whether the manager has made an impromptu policy or the policy is written in some manager's manual is probably irrelevant. Was the arrest lawful because the manager has a property right to ban firearms, or unlawful because I have the 2A right to bear arms? I see this as a fundamental constitutional conflict.

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    bobernetand Richard6218, my hat is off to both of you. Great discussion, and some points I haven't thought about.

    But, let's take Richard6218's scenario and change it just a bit to reflect First Amendment rights vice Second Amendment rights:


    Imagine this scenario: a store manager asks me not towear a "Bob Barr for President" shirtin his store. Next day I come back, again wearing the same shirt. Manager calls 911 and has me arrested for trespass. Now the legal question is Was the arrest lawful? If you were the judge on this case, (or jury foreman) how would you rule? I think here is the nub of the issue. I think whether the manager has made an impromptu policy or the policy is written in some manager's manual is probably irrelevant. Was the arrest lawful because the manager has a property right to ban freedom of speech, or unlawful because I have theFirst Amendmentright to freedom of speech? I see this as a fundamental constitutional conflict.
    What say you?



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    Ajetpilot wrote:
    SNIPIf you were the judge on this case, (or jury foreman) how would you rule?
    Were I the jury foreman, I'd say to the court:

    "We the jury find the store owner to be an ass. However, that is not illegal. Please let him go back to his manger."
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Ajetpilot, your analogy is OK but it's got a self-contradiction.

    Was the arrest lawful because the manager has a property right to ban freedom of speech, or unlawful because I have theFirst Amendmentright to freedom of speech?

    You've said he has a right to ban freedom of speech because you have a right to freedom of speech. Doesn't make sense. Maybe this would work better: He has (may have) the right to ban freedom of speech because you have the right to carry a gun. Now you have the conflict that I was talking about from the beginning. It's still a conundrum.

    During this afternoon I have had a bright idea: I'm going to exercise my membership in NRA (which I have just renewed) to inquire about this issue. There must be case law that can settle this. All we need is someone knowledgeable in the law, and NRA is a great resource. I'll start on it tomorrow, and post the answer as soon as I know.

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    As long as you're free to walk out the door and go elsewhere, the business owner is free to ban firearms on the premises. He's not denying you the right of self-defense, he's simply telling you to exercise your right somewhere else.

    Imagine this: You're shopping with your family at a Kids-R-Us store and a man stands in one of the aisles exercising his right to free speech by monologuing on a topic (fill in the blank with the most vile--yet legal--crap you can imagine) that no reasonable person wants his/her children being exposed to. I wouldn't consider it a violation of his 1A rights when the store manager ejects the guy.

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    I disagree, Richard. Either a store owner has the right to have a person arrested for trespass, because the person violates the store owner's limitations on the patron's First Amendment (Second Amendment) right to self expression (bear arms), or he does not. That is a fundamental Constitutional question.

    Certainly, an owner of property, that is not open to the public, can invite/dis-invite anyone for any reason, but does a proprietor enjoy that same discretion?

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    bobernet wrote:
    So many logical fallacies, so little time...

    If you don't believe in property rights...
    Strawman. No one has claimed to not believe in property rights.

    I didn't say anyone had claimed not to believe in property rights, just what the end result of holding to such a belief leads to.

    anyone can come into your house at anytime
    False analogy. Businesses "public accomodation" are already restricted in various ways. You can't order blacks or Catholics out of your restaurant. You can't post a sign saying "Irish not welcome." A business is not your house. Breaking and entering is not analogous to exercising your right to self-defense while at a place open to the general public.

    It's not an analogy, it's an example of my previously stated position

    and take your property, and you don't have anything to say about it.
    Another false analogy. No one here has advocated theft.

    Again, not an analogy.

    Is there really no good argument for the "self-defense should be less protected than religion" argument? I can't ban Muslims from my business, but I can (and should be able to) ban people from having the means of lawful self-defense?

    Every argument in favor of banning gun owners falls back on the same weak arguments and false analogies.

    Some questions... all are simple yes/no.

    Should I be able to ban whites from my restaurant?
    Should I be able to ban Christians from my shopping mall?
    Should I be able to ban women from my gas station?

    You make some good points about the erosion of property rights...


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    A key point to remember is that, from a Constitutional standpoint, the rights and protections enumerated are specifically targeted at governmental interference.

    At least insofar as the Constitution is concerned, the only entity that can commit a first amendment (or second, etc) violation is the government. A store manager telling you not to wear your political shirt is not violating your first amendment right. The same store manager telling you to leave because of your gun is not violating your second amendment right.

    The point at issue is all related to what I alluded in my posts prior. How far do private property rights extend, when discussing public accomodation? The government has already ruled that private property rights in a public venue do not extend to discrimination based on race, religion, sex, national origin, disability, etc.

    The only way to make this a Constitutional question is to argue that the various trespass statutes that exist should have a provision to prevent the ejection of a person, who is at a place of public accomodation, for any action that would be protected by the Bill of Rights were the government to directly sanction such action.

    That makes private property owners bear the same burden as the government when it comes to the infringement of civil rights.

    As the law stands today, this is clearly not the case. I believe there's a compelling argument on both sides about whether it should be the case.

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    Asking you to leave yesterday does not create a "now and forever" situation. When you come back the next day, he may not ask you to leave and just call the cops, but when they arive, they will not arrest you for trespass since you were not asked to leave.

    Now what they may do, is give you a trespass letter. Essentially legal notice that the owner never wants you to return. Once given that notice, than you could be arrested for coming back, even if not asked to leave at that point.

    As another poster pointed out, only the government is precluding from violating constitutional rights. It has no bearing on private business.

    The examples given related to race, religion, and gender are not protected by any constitutional issues. They are protected by civil law related to discrimination. Completely apples to oranges comparision. If someone is discriminated against in such case, they can sue the business.

    A more accurate example is the raving lunatic and his 1A rights disrupting the store. Yes, he can be asked to leave. A business owner can legitimately ask anyone to leave if they are disrupting the business. While it may be argued that your 2A rights aren't disruptive it comes down to opinion. Without some law protecting your choice to exercise the right, you have no basis for a suit as there are no damages.

    It comes down to choice. Our rights are something we can choose to exercise or not. They are not without limit, and that limit is generally when exercising them infringes on others.

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    I like what 911 Boss said , and it fits what I practice every day as a C-Store Manager.

    If whatever is being done in my op-ion is disrupting my business or customers I will ask a person to leave. And the Sheriffs will back me up.

    If I asked a person panhandling in my parking lot to leave and he left, no problem.

    If he comes back as a customer the next day , no problem.

    If he comes back and panhandles than I call the LEOs and NO TRESPASS him with them there. It goes in the computer if he returns off to the hooshcal.

    Not the same as freedom to speech or Freedom to OC.

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    911Boss wrote:
    Asking you to leave yesterday does not create a "now and forever" situation. When you come back the next day, he may not ask you to leave and just call the cops, but when they arive, they will not arrest you for trespass since you were not asked to leave.

    Now what they may do, is give you a trespass letter. Essentially legal notice that the owner never wants you to return. Once given that notice, than you could be arrested for coming back, even if not asked to leave at that point.

    As another poster pointed out, only the government is precluding from violating constitutional rights. It has no bearing on private business.

    The examples given related to race, religion, and gender are not protected by any constitutional issues. They are protected by civil law related to discrimination. Completely apples to oranges comparision. If someone is discriminated against in such case, they can sue the business.

    A more accurate example is the raving lunatic and his 1A rights disrupting the store. Yes, he can be asked to leave. A business owner can legitimately ask anyone to leave if they are disrupting the business. While it may be argued that your 2A rights aren't disruptive it comes down to opinion. Without some law protecting your choice to exercise the right, you have no basis for a suit as there are no damages.

    It comes down to choice. Our rights are something we can choose to exercise or not. They are not without limit, and that limit is generally when exercising them infringes on others.
    Very well said 911boss. Some of you guys are confusing the Bill of Rights and Civil Rights. Both give/affirm rights to us but violations of them are dealt with in a different manner. One, Civil Rights, are protected by the Govt. The other, Bill of Rights, are protections from the Govt.
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