From the mouth of a judge

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While watching Fox News deliver a report about Starbucks and their stance on open carrying, a judge was asked, "Can a business restrict or prevent someone who is able to lawfully carry a firearm from coming into the business?"

The judge answered immediately, "No, they cannot". He explained that since businesses which are open to the general public fall under the heading of "public accommodations" which invite the public into their domain. He gave an example of two people having coffee and discussing politics in a civil manner and that the business cannot restrict that freedom.

The judge in question? Judge Andrew Napolitano, a frequent contributor on Fox News and a stand in host on the Glenn Beck Show. Mind you, INAL so I recommend anyone being a test case. I just thought it was quite interesting and caught me off guard.

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I think here in Alaska, those signs that businesses put up can legally be ignored. I said think so no jumping down the newbie's throat.


I do know in Texas that I CC'd in places that had the sign up "No Firearms.. blah blah". I usually ignored them. 1. I was CC'ing and truly how can you tell when a person is properly CCing and 2. Because I was just usually running in to drop off something and wouldnt be in there long (less than 30 mins) and didnt want to go through the hassle of locking the gun in the truck.


I think most of these businesses need to just learn what is allowed and become comfortable with the legal gun carrying customer and think of it from a business point of view. Gun Owners spend hundreds to thousands of dollars on guns, ammo and equipment(holsters, etc) each month, year... why would you want to see them take their money elsewhere?

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I thought the concept of "public accommodation" was an end-around The Constitution when it was first used, even though I admired the result they were trying to achieve--ending discrimination. The ends should have never been allowed to justify the means.

Now that it is being used to widen OC, I still think it is an attempt to limit the constitutional rights of businesses. Again, the ends do not justify the means. Just as we should want our right to KBH protected, we should want the rights of businesses to determine what happens on their premises to be protected.

We have the right to carry. They have the right to say, "Not in my house."
We have the right not to do business with them. Let's advocate the protection of everyone's rights.

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eye95 wrote:

I thought the concept of "public accommodation" was an end-around The Constitution when it was first used, even though I admired the result they were trying to achieve--ending discrimination. The ends should have never been allowed to justify the means.

Now that it is being used to widen OC, I still think it is an attempt to limit the constitutional rights of businesses. Again, the ends do not justify the means. Just as we should want our right to KBH protected, we should want the rights of businesses to determine what happens on their premises to be protected.

We have the right to carry. They have the right to say, "Not in my house."
We have the right not to do business with them. Let's advocate the protection of everyone's rights.

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You'll notice I took no sides with this. I merely reported what I saw and heard. I do have an opinion, but I did not and do not care to voice it under this thread (could change...).

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I know Judge Napolitano personally from my work in NYC, and I'd love to see this tape. I know in his book, Nation of Sheep (Where he attacks the FISA laws and Patriot Act) he talks about this, but he also in that book is referencing that these are violations of the Constitution!!!

He is referring to 42 USC 12181 (7) in his discussion, which defines what a public accommodation is.


He makes a good point, that I was thinking about the other day: The public accommodation laws mean that they are licensed by the State for PUBLIC SERVICE - ie, for the general public to come in, eat there, drink and so on. We are not speaking of a PRIVATE CLUB, or PRIVATE HOUSE.

A public accommodation in many States is no different than a public space of any type. You are asking the State permission to serve the PUBLIC as a whole (meaning people off the street can come in, eat, drink, and so on.) In many jurisdictions it also means that the government is guaranteeing to some degree the safety of the food with inspections, protection by the police (public accommodation laws often require to allow police to enter as needed) and that you will not discriminate against anyone based on any arbitrary reason.

In Public Accommodation Law (and I am not an expert) if I remember correctly, the border between PUBLIC and PRIVATE is blurred by the private entity asking to become a semi-public space.

That is why "we reserve the right to refuse" signs are invalid, because you can not have an arbitrary reason that affects one group. You can require EVERYONE to wear shirts, or ties, but you can't say one protected class can not enter.

This is really, really good thinking, and it might be a way to overrule ALL NO GUN SIGNS!!!

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That the government licenses an activity does not give it the power to abridge rights.

Because you are licensed to drive, can the State say that you may not carry your weapon in your vehicle?

Because you are licensed to marry, can the State deny you the right to argue with your wife?

Because you are licensed to sell alcohol, can the State deny your right to free speech?

Unless the government can demonstrate a compelling interest in denying a right simply due to someone being licensed, it is usurping individual liberty when it uses the licensing process as an excuse to abridge rights. If there is the least bit of doubt about the necessity to restrict rights, government should always take the least restrictive approach.

Allowing businesses to decide whether they will allow guns on their premises, and allowing the rest of us to decide whether or not to do business with someone based on their gun policy is the least restrictive--and I see no compelling interest in the government acting in a more restrictive way.

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eye95 wrote:

Allowing businesses to decide whether they will allow guns on their premises, and allowing the rest of us to decide whether or not to do business with someone based on their gun policy is the least restrictive--and I see no compelling interest in the government acting in a more restrictive way.

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Bingo!

The thing that has made this country great has been the "FREEDOM OF CHOICE." We all have it. We must all respect others choices, even if we don't agree with them.

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Pace wrote:

I know Judge Napolitano personally from my work in NYC, and I'd love to see this tape. I know in his book, Nation of Sheep (Where he attacks the FISA laws and Patriot Act) he talks about this, but he also in that book is referencing that these are violations of the Constitution!!!

He is referring to 42 USC 12181 (7) in his discussion, which defines what a public accommodation is.


He makes a good point, that I was thinking about the other day: The public accommodation laws mean that they are licensed by the State for PUBLIC SERVICE - ie, for the general public to come in, eat there, drink and so on. We are not speaking of a PRIVATE CLUB, or PRIVATE HOUSE.

A public accommodation in many States is no different than a public space of any type. You are asking the State permission to serve the PUBLIC as a whole (meaning people off the street can come in, eat, drink, and so on.) In many jurisdictions it also means that the government is guaranteeing to some degree the safety of the food with inspections, protection by the police (public accommodation laws often require to allow police to enter as needed) and that you will not discriminate against anyone based on any arbitrary reason.

In Public Accommodation Law (and I am not an expert) if I remember correctly, the border between PUBLIC and PRIVATE is blurred by the private entity asking to become a semi-public space.

That is why "we reserve the right to refuse" signs are invalid, because you can not have an arbitrary reason that affects one group. You can require EVERYONE to wear shirts, or ties, but you can't say one protected class can not enter.

This is really, really good thinking, and it might be a way to overrule ALL NO GUN SIGNS!!!

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Unless you are saying that GunOwners are a protected class (race/religion/ethnicity/sexual orientation/etc) I don't think this flies. A business saying "no shoes-no service" is the same as "gun-no service".

For the record, I don't think GunOwners are a protected class. But it is an interesting concept. Sell me on it.

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Archsgurl wrote:

I do know in Texas that I CC'd in places that had the sign up "No Firearms.. blah blah". I usually ignored them. 1. I was CC'ing and truly how can you tell when a person is properly CCing and 2. Because I was just usually running in to drop off something and wouldnt be in there long (less than 30 mins) and didnt want to go through the hassle of locking the gun in the truck.


I think most of these businesses need to just learn what is allowed and become comfortable with the legal gun carrying customer and think of it from a business point of view. Gun Owners spend hundreds to thousands of dollars on guns, ammo and equipment(holsters, etc) each month, year... why would you want to see them take their money elsewhere?

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I have OC cards and do not plan to CC much even when I get my CHP. I wonder how appropriate a card would be for CCs that states something to the effect of, "Hi I carry a gun concealed and have patronized your business. Thank you for respecting my right to defend myself... etc"

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Licensing to drive isn't a valid example, license to marry, etc. This is totally separate. No-Shoes-No-Service doesn't apply either, because its not protected by the US Constitution.

I am not saying I agree with it, I'm actually not an expert in this part of the law, but its interesting theory.

The theory is based on this. A restaurant has asked the government to no longer be a private-only entity but to become a public entity. That's why they are called public establishments, because they have asked the government to enter into a contract with the public, the citizens of that state to serve the citizens of the state.

You can always have a private club, and serve alcohol without a license, such as kiwanis, masons, rotary, etc.

So in theory, based on this, from what I have read on the books, a public establishment has made a contract of sorts with the government and the people of that State to become a PUBLIC SERVICE provider of sorts. They have agreed to no longer be a private only establishment, but be an establishment that lets the general public in.

Since a public establishment has made that contract with the people, they are unable to say "You can't come in because you are black, white, gay, christian, so on and so on" because they are no longer PRIVATE anymore, they have already agreed to be PUBLIC and follow PUBLIC RULES.

They could turn around and become a private establishment anytime they want, and only allow members, and then no longer have to follow those rules if they want. However, since they want to engage the general public, they have decided they don't. The courts have already ruled over and over again it is illegal to prohibit any other type of discrimination, and since we are arguing that 2A is protected by.. well, 2A, would this be different?

So if the public says that you are allowed to carry a firearm, and this is a PUBLIC PLACE, it would be illegal to prevent that.

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In Texas at least when I lived there (left in early 05), CC was all that I think was allowed. If not, well I CC'd cause it made my Grandma confortable. (Long story). I didnt mind CC'ing and actually enjoyed it.

Now in AK, I am trying to build up my nerve to OC. I know it is legal, I would love to do it, now I just have to do it.

Those signs if in a public establishment even up here, I would probably ignore or call the manager and inform him that due to his discrimating signs, I will take my business and my money elsewhere.

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Pace wrote:

Licensing to drive isn't a valid example, license to marry, etc.

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Why not? You justified the government's right to take away a business' right of association based on the business being licensed by the government, as though the licensing gives the government power to take away rights.

I was pointing out the flaw in that line of thinking by using other examples of licensing to reduce the argument to its absurd conclusion.

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Archsgurl wrote:

In Texas at least when I lived there (left in early 05), CC was all that I think was allowed. If not, well I CC'd cause it made my Grandma confortable. (Long story). I didnt mind CC'ing and actually enjoyed it.

Now in AK, I am trying to build up my nerve to OC.  I know it is legal, I would love to do it, now I just have to do it.

Those signs if in a public establishment even up here, I would probably ignore or call the manager and inform him  that due to his discrimating signs, I will take my business and my money elsewhere.

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Hey I wasn't trying to criticize CC. Some people just aren't comfortable with OC. It has social baggage. My objective in OCing is to reduce or eliminate that social baggage. Kinda like what is mentioned here (http://opencarry.mywowbb.com/forum6/39095.html). My advice for working up the nerve to OC is to know the law in your state. Be able to quote it if you feel you need to. (I can't)
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t33j wrote:

Archsgurl wrote:

In Texas at least when I lived there (left in early 05), CC was all that I think was allowed. If not, well I CC'd cause it made my Grandma confortable. (Long story). I didnt mind CC'ing and actually enjoyed it.

Now in AK, I am trying to build up my nerve to OC. I know it is legal, I would love to do it, now I just have to do it.

Those signs if in a public establishment even up here, I would probably ignore or call the manager and inform him that due to his discrimating signs, I will take my business and my money elsewhere.

Click to expand...

Hey I wasn't trying to criticize CC. Some people just aren't comfortable with OC. It has social baggage. My objective in OCing is to reduce or eliminate that social baggage. Kinda like what is mentioned here (http://opencarry.mywowbb.com/forum6/39095.html). My advice for working up the nerve to OC is to know the law in your state. Be able to quote it if you feel you need to. (I can't)
</thread derailment>

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I know you were not critizing CC. The laws in this state are easy. I can OC or CC - no permit required, now I have to just find a new pistol I like, a holster I like and go for it..

I will probably start CCing first since I am already comfortable doing that, then move to OC, but either way. I agree with this judge. They dont have the right to tell us we cant come into a public establishment if we are legally carrying our guns.

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First, this is not my argument, I am trying to explain the argument to the best of my ability. I'm doing some research on it, the theories behind it.

The theory isn't just licensing, it's that as a public establishment then are entering into an agreement with the GENERAL PUBLIC.

Read the theory, a private establishment has a right to association, these are NOT provide establishments, but PUBLIC establishments, that's the difference.

The theory of a public establishment is that it's Quasi-Public, or so I am reading in some law books right now. That when they ask for public "certification" of sorts, they are asking to become public, and thus asking to be open to the public.

Right now, I'm not sure what I agree with, since I respect a private businesses right. However, I do understand the arguement that these are not private establishments anymore. They could have remained but they ASKED to become PUBLIC.

eye95 wrote:

Pace wrote:

Licensing to drive isn't a valid example, license to marry, etc.

Click to expand...

Why not? You justified the government's right to take away a business' right of association based on the business being licensed by the government, as though the licensing gives the government power to take away rights.

I was pointing out the flaw in that line of thinking by using other examples of licensing to reduce the argument to its absurd conclusion.

Click to expand...

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Very good, you are making the same point the judge makes, it's not a private establishment but a PUBLIC establishment. They asked to be public, they asked to enter into an agreement with the public to be a PUBLIC place.



Archsgurl wrote:

I know you were not critizing CC. The laws in this state are easy. I can OC or CC - no permit required, now I have to just find a new pistol I like, a holster I like and go for it..

I will probably start CCing first since I am already comfortable doing that, then move to OC, but either way. I agree with this judge. They dont have the right to tell us we cant come into a public establishment if we are legally carrying our guns.

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Pace wrote:

SNIP You are asking the State permission to serve the PUBLIC as a whole (meaning people off the street can come in, eat, drink, and so on.)

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What!?!?!?!?!?!

Hogwash!

First, licensing violatesour fundamental human right to contract and give/receive property and service. We do not need to ask permission, except the government has infringed the rights I just mentioned.

Then somebody wants to tack on another concept. "Oh, so now that you are asking, it implies you are also asking in the way we want to characterize it."

If I am asking, it is through gritted teeth and barely restrained disgust to be allowed to get on with life. I am only asking permission because the goons will come with guns and property seizure/forfeiture parchments if I don't ask permission. I am damn sure not also asking "to serve the public as a whole" or whatever additional aspect they want to tack on to justify further regulation of my already completely over-regulated life.

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I've beaten this horse more than once and incurred the wrath of other posters. Now I'm glad to have the endorsement of Hizzoner.

I have maintained all along that while private property rights are sacred, the solicitation of public attendance mitigates those rights. People must be allowed to go about their business without unreasonable, arbitrary restrictions.

Public accommodation carries with it obligations.

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Why shouldn't they be able to have arbitrary restrictions? After all, one of the rights protected by The Constitution is the Freedom of Assembly. We are free to assemble with whoever we choose for any purpose--including the conduct of business.

Laws that rely on the concept of "public accommodation" to skirt this right are unconstitutional--despite the courts not saying so.

Our rights protect our ability to be arbitrary without Big Brother passing on the propriety of our arbitrariness. At least, they were supposed to.

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Pace wrote:

snip>>
The theory is based on this. A restaurant has asked the government to no longer be a private-only entity but to become a public entity. That's why they are called public establishments, because they have asked the government to enter into a contract with the public, the citizens of that state to serve the citizens of the state.

You can always have a private club, and serve alcohol without a license, such as kiwanis, masons, rotary, etc.

So in theory, based on this, from what I have read on the books, a public establishment has made a contract of sorts with the government and the people of that State to become a PUBLIC SERVICE provider of sorts. They have agreed to no longer be a private only establishment, but be an establishment that lets the general public in.

Since a public establishment has made that contract with the people, they are unable to say "You can't come in because you are black, white, gay, christian, so on and so on" because they are no longer PRIVATE anymore, they have already agreed to be PUBLIC and follow PUBLIC RULES.

They could turn around and become a private establishment anytime they want, and only allow members, and then no longer have to follow those rules if they want. However, since they want to engage the general public, they have decided they don't. The courts have already ruled over and over again it is illegal to prohibit any other type of discrimination, and since we are arguing that 2A is protected by.. well, 2A, would this be different?

So if the public says that you are allowed to carry a firearm, and this is a PUBLIC PLACE, it would be illegal to prevent that.

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I hope I am misunderstanding what you are saying here. Are you saying that because a business exists as a public place that they have asked for the permission of the government to be a business?

I run my own business; I did not ask anyone for permission to operate my business nor will I ever. I have not signed any contracts with the government except as pertains to collecting and being exempt from some state(s) sales tax.

I don't understand where you are coming from....entering into a contract with the government or the peopleto be a public service provider????? What contract?

I wish all businesses allowed people to exercise all of their rights (thankfully here they do) but the fact remains that these businesses are on PRIVATE property and as such they can make the rules.