Another legal theory in response to some local experiences with business entities.

I was reading the Aldis thread and thinking, it would be nice if there were some form of protection from what, IMO, is discrimination towards law-abiding pro-gun citizens. When it really comes down to it, we are a group of individuals exercising a constitutional right; however, we are being asked to leave stores, threatened with legal action, black listed from locations, and labeled suspicious persons.

So let’s consider a few things.

We know the gun movement has fought for advancement through civil liberties cases. Civil liberty cases focuses on private or individual rights and liberties.

However, do gun owners, when looked at on a macro level, constitute a significant enough population to push for gun rights under a civil rights perspective? Civil rights cases, of course, focus on the equal protection of a group. So the question is, do pistol owners and carriers fall under the Equal Protection Clause and the courts standard of review?

When discussing the equal protection clause, OCers would fall under "others" in classification. This placement would subject us to the "minimum rationality standard," which asks, "Is there any rational foundation for the discrimination?" In my opinion the answer would be no, but would the courts agree?

So, how would we approach this in a legal sense?

The Equal Protection Clause states, "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." As the second amendment has recently been incorporated into the 14th amendment, can we apply this clause to this legal theory?

What we are really facing here is discrimination on a private level. This is why the property owners at stores can ask us to leave or ban us from the property for a law abiding action. However, we have a legal framework to learn from thanks to civil rights cases in the 60s that dealt specifically with private discrimination. (Katzenbach v. McClung and Heart of Atlanta Motel Inc. v. United States)

Within these cases, the court states its position of how private entities relate to the public spectrum and state, specifically, how the commerce clause was expanded to protect individuals from being discriminated against by a private business.

Opinions of the courts:

When the private actor is performing a "public function," for example, its activities are treated as state action and subject to the equal protection clause.

Even localized acts of discrimination may, when considered cumulatively with other such acts around the nation, have a substantial impact on interstate commerce when aggregated.

Now, although a company like Aldis or Wal-mart may have a corporate policy in place respecting the local laws the actions of its manager, a representative of the company, may still be discriminatory and biased. This theory would more easily apply to big box stores that have direct connections to interstate commerce and to those who openly ban firearms (and effectively the patrons who own them) at the door. Though these stores may argue they are not banning individuals, just the firearm he or she wishes to carry, this is essentially de facto discrimination.

This theory gains further strength in areas were these larger corporate stores are the main or only source of goods and services, thus limiting the options of a gun-carrying individual.

The only way I could see stores attempting to get around this legal theory would be to prove OCers are having a larger negative effect on their commerce, which, in my opinion, would be very, very hard to do.

We should not have to sacrifice an incorporated civil liberty and constitutional right to appease the biased and discriminatory individuals within the private sector.

I was in my town's Wal-Mart when an assistant manager approached me. He told me the he had received "Five" calls from other shoppers about my pistol. He then asked me to please remove my firearm from the premises. I left the store immediately.
When I later conferred with a fellow OCer, he told me that he had been asked to leave the same Wal-Mart because of being called in by "Five" shoppers.

I believed the legal norm was to award some form of compensation to individuals who felt as though their constitutional rights were being infringed upon. For example, non-Christians and Atheists being wished Merry Christmas by Wal-Mart greeters led to a "Christmas Controversy." However, for OCers, the opposite is occurring. Our right to protect ourselves is being ignored because of businesses wanting to keep their revenue stream, (the customers,) happy and shopping. The problem comes when trying to make an impact on businesses revenue because of our small population.

I agree with ChiangShih. Our rights are being infringed upon on a private level and we must search for legal alternatives.

I like this analysis. The sticking point is that it takes a lot of staying power -- time and money and talent -- to move these cases forward. Chances are good that you would not win at trial and and not even at the first appeal. Most supreme courts exercise discretionary (selective) jurisdiction, so cases are often left hanging with an unsatisfactory decision from the court of appeals and no decision at all from the top court, which means you have to bring case after case. The civil rights movement had help from law firms donating pro bono attorney time; it's a lot harder to find law firms today that are willing to do pro bono work on the right side of the Second Amendment. It doesn't win them the same kind of brownie points with the silk stocking set that the left-wing causes do. Add to that the fact that a lot of those young attorneys from the '60s and '70s went on to become influential law professors and judges who pushed the next generation of lawyers and law professors and judges toward the left, and you have a deck stacked against you. I'm not saying you're not right, on the contrary I think your theory is good. But if it sounds frustrating, then you have some small sense of what it was like to be black in the '50s.

Not going to say that I don't agree on some levels, but at the same time I don't think it would hold quite the same weight as other civil cases.

Things such as race, sexual orientation, religion, are generally considered to "be" the person. Not choices they make or things they have. So such as carrying a gun is less a part of "us" (while we could argue that it isn't) and that the other civil liberties are more about the actual core and essence of the person.


You can see this with how smokers are band from many places, even many cities. I believe this would be more the level that other people associate carrying a gun with.

Big Boy said:

Not going to say that I don't agree on some levels, but at the same time I don't think it would hold quite the same weight as other civil cases.

Things such as race, sexual orientation, religion, are generally considered to "be" the person. Not choices they make or things they have. So such as carrying a gun is less a part of "us" (while we could argue that it isn't) and that the other civil liberties are more about the actual core and essence of the person.


You can see this with how smokers are band from many places, even many cities. I believe this would be more the level that other people associate carrying a gun with.

Click to expand...

The above in bold are categories that are life choices. One can choose to practice or not either category. Choosing to be non sexual or religious does not leave one vulnerable to protect themselves or loved ones.

While I agree with you that sexual orientation is a choice, those that choose differently from the norm will tell you they were "born that way."

Also with religion it is generally more of a respected aspect considering it affects you salvation, soul, and what not.

Just playing the advocate.

Big Boy said:

Not going to say that I don't agree on some levels, but at the same time I don't think it would hold quite the same weight as other civil cases.

Things such as race, sexual orientation, religion, are generally considered to "be" the person. Not choices they make or things they have. So such as carrying a gun is less a part of "us" (while we could argue that it isn't) and that the other civil liberties are more about the actual core and essence of the person.


You can see this with how smokers are band from many places, even many cities. I believe this would be more the level that other people associate carrying a gun with.

Click to expand...

I fully agree with this concern and it could definitely be used as an arguing point by an opposition. However, there are different standards of scrutiny and classes considered when arguing these cases. The court provides an "others" category for groups that are not so commonly considered in modern law.
In addition, we may not be able to confront this from a direct civil rights perspective, but the clauses, cases, and laws from the era may be applicable in a fight for OC preemption.