In conjunction with signing the bill that requires private property owners to allow certain invitees (employees) to bring guns onto the owners’ property, Gov. Daniels issued a statement that reveals a fundamental misunderstanding of how the Bill of Rights works which, in retrospect, explains quite a bit. (Via Jim Shella):
Considering the clear language of the Second Amendment of the U.S. Constitution, and the even stronger language of Article 1 Section Thirty-Two of the Indiana Constitution, protecting these rights as provided in HEA 1065 is appropriate. I also am compelled to give great weight to the overwhelming consensus of both Houses of the General Assembly as they passed this bipartisan statute. The law does contain ambiguities that the General Assembly may wish to refine at some future date, to avoid unnecessary litigation, but the understandable concerns raised against the bill do not suffice to justify a trespass on a fundamental right so expressly protected by our founding documents.
This is not a Second Amendment situation. The Bill of Rights limits the power of the Government. It does not limit the power of private individuals. Therefore, passing a law that limits the rights of a private individual to restrict gun possession by another individual on the first person’s land is not a Second Amendment issue. It’s a question of competing property rights – land rights of the land owner versus personal property rights of the gun owner. The General Assembly is expressing a preference for one property right over the other.
The state Constitution has stronger language, but I still don’t think it compels any particular action to prefer one property owner over another:
Section 32. The people shall have a right to bear arms, for the defense of themselves and the State.
With respect to this provision, the Indiana Supreme Court has previously held, “Indiana gun owners are guaranteed the right to bear arms, but this right does not entitle owners to impose on their fellow citizens all the external human and economic costs associated with their ownership.” Estate of Heck ex rel Heck v. Stoffer, 786 N.E.2d 265, 271 (Ind. 2003).
Gov. Daniels misunderstanding of how the law works would be disturbing if I thought it was genuine. But, I’m fairly sure he’s just pandering.
So, how does this apply to properties “owned” not by individuals, but instead are owned by corporations (of all kinds) or government?
I doubt that Daniels has thought about the difference between limiting the powers of government and competing property rights. He was probably thinking mostly about his future political career.
“This is not a Second Amendment situation. The Bill of Rights limits the power of the Government. It does not limit the power of private individuals. ”
Doug, I am not sure I agree. The 3rd through 10th Amendment are obviously limited to government actions because of their subject matter (trials, crime and punishment, etc.). Even the 1st Amendment, which discusses free spech, is very clearly limited by the first clause of “Congress shall pass no law”.
However, the 2nd Amendment has no such limitation clause. If you believe the argument that the first clause is a rationale for the right to bear arms: “A well regulated Militia, being necessary to the security of a free State” then the second clause of the 2nd Amendment, “the right of the people to keep and bear Arms, shall not be infringed.” is not necessarily limited to actions by government.
I agree the law is not premised on the 2nd Amendment. So what? The states clearly have the power to pass this kind of law, for better or worse. It’s not even remotely unconstitutional. State laws do not have to be authorized by some federal constitutional provision. States have their own power in the constitution.
The press on this bill has been blown out of proportion. We’re talking about a person keeping a gun in their vehicle in the parking lot, locked in a glove compart. The idea that this law lets you tote a gun into the workplace is a complete fallacy.
For me, all it shows is that the business property owner does not have primacy when it comes to setting policy on their own property. There is a continuum there from the smoking bans to here.
The “so what” for me, Paul, is that the politicians keep yammering on about the Second Amendment. It’s not a Second Amendment issue.
I don’t think it’s unconstitutional unless it’s somehow a “taking” under the 5th or 14th Amendments; but with those, the states have already imposed more burdensome regulations on property owners without courts finding a constitutional violation.
Mike, does a car become the property of the business property owner when it parks in the lot?
I really do not think that a high school, workplace, or Walmart has the rights to my car or anything inside of it when I park in their lot. They can tell me I can’t park there, but they can’t tell me that they control what I do inside my car.
Doug posted: “I don’t think it’s unconstitutional unless it’s somehow a “taking” under the 5th or 14th Amendments; but with those, the states have already imposed more burdensome regulations on property owners without courts finding a constitutional violation.”
This is a fascinating point to me (if I understood it)and not generally understood by anyone not having a background in law,and maybe even then.That is,a law is not unconstitutional unless it has been judged so by the judiciary ,so comparing propery rights with gun rights is a false comparison because property rights have already been well-regulated over time. ‘Guns’ is a new whole category where’ the jury is still out’ At least that’s how I understand the post.
That’s an interesting point of debate. It might be a little bit like the tree falling in the middle of the forest with no one to hear it. I’m reminded of a story one of my law professors tells about 3 umpires sitting around talking, one young, one middle aged, and one old.
Says the young umpire, “I call ’em like I see ’em.”
Says the middle-aged umpire, “I call ’em like they *are*”
Says the old umpire, “Boys, they ain’t nuthin’ ’til I call ’em!”
———-
But, to your point about guns being a new area – I don’t think so. In the context of relationships between private individuals (employer v. employee in this case), I think guns are just another kind of property. No real difference, I don’t think, from an employer telling an employee not to bring gum or a dog or a bear trap or an acetylene torch or anything else on to the employer’s property.
Doug, to your point,
Do you think an employer has the right to tell an employee that he can’t have those items in his car?*
*Dog may be a special case. If the dog does not bark, then I don’t think an employer has any room to say something. However, if the dog is barking, the sound from the dog has now left the car and entered the employer’s property.
Just to clarify. There is another “Paul” on here who posted in this thread. “Paul K. Ogden” is me.
As far as your “takings” argument, that’s a bit of a stretch, isn’t it? If you’re going to make it on the gun issue, you could make that issue on all sorts of regulations that apply to business.
I think this is so much ado about nothing. We’re talking about a gun kept in a vehicle under lock and key. Big whoop.
What about a law that tells employers that they can’t prohibit their employees from smoking or drinking on their own time? I have no problem with a legislature adopting a law protecting those employees from such an employer rule.
Jason, I do. The land owner should have primacy to set the rules regarding business property. If I own a business, and I am anti-gun, why should I yield my authority so that you can do something on my land that I disapprove of?
I do think they should be able to post a sign advising anyone who would wish to enter what the rules are, and to expect compliance, lest they be entitled to direct you off the property.
You answered your own question. They get to decide whether or not you get to park there, and they get to base that decision on whatever criteria they choose.
Assume I am visiting (as a non-employee) a facility that allows certain invitees (i.e. employees) to bring a gun on the property. Am I not allowed to bring one too ? I mean, I might have to defend myself against one of those armed employees, so wouldn’t I have the right?
This is why it is gun-nuttery.