NRA versus property and contract rights

by Walter Olson on August 2, 2012

As a strong defender of the Second Amendment, my views more often than not align with those of the National Rifle Association, so I’m especially disappointed to see the NRA stepping up its campaign against other important elements of liberty, specifically the property- and contract-based liberty of employers to insist (if they so wish) that employees not bring guns to company premises, including parking lots. My Cato colleague Roger Pilon lays out the issue and rightly upbraids chief NRA lobbyist Chris W. Cox (not the former California Congressman) for misunderstanding the constitutional issues. Earlier on the NRA’s blind spot here, here, and here (with reader disagreement). [Corrected to fix misidentification of Cox]

{ 26 comments }

1 ctrees 08.02.12 at 8:30 am

It’s their standard problem, though-vehemently resisting ANY restictions on gun ownership of any sort, regardless of legitimacy. I know the idea is “if we give a little, they’ll keep taking more,” but occassionally you get silly things like this.

2 Anonymous Nicholas 08.02.12 at 10:12 am

I’m conflicted on this. As a textualist, like Justice Scalia, I read the words “shall not be infringed” and I just do see the words “by the government” there. If my right to bear arms shall not be infringed *period*, then that means nobody can infringe the right — government or private citizen. The plain text of the amendment gives me the right to carry guns into bars, into private homes, into government buildings, into elementary schools, into the White House, into hospitals, into everywhere. On the other hand, that seems a little absurd. But if that is absurd, then textualism would have to be absurd, and I’m not sure if I’m ready to give up on textualism. What do you others think?

3 wfjag 08.02.12 at 12:17 pm

The NRA has missed another issue, one that may underlie why many property owners do not want weapons on their property — potential tort liability. If there was effective tort reform that barred an owner’s potential liability when an employee or some other person brought a weapon onto the premises (and left it in their vehicle), such as an irrebutable presumption that the weapon was solely for the person’s personal use and defense, then an owner might not object.

While I strongly support the 2d Amendment as a personal right, there is no way I would advise a client to consent to an employee or anyone else bringing a weapon onto the premises (where ever it might be kept). There are too many ways to assume a duty under the Restatement (2d ed) of Torts, and the Reststatement (3d ed) expands liability well beyond that. If the NRA wants cooperation, then it needs to help enact effective protections from liability for owners who would allow employees to keep weapons in their personal vehicles.

4 Walter Olson 08.02.12 at 1:14 pm

Perhaps Nicholas is a bit disappointed that his previous attempt to bait readers on this subject a month and a half ago did not draw a greater response.

5 Anonymous Nicholas 08.02.12 at 2:21 pm

Indeed I am. I’m still trying to figure out the issue. Nobody can explain to me why textualism does not mean a person has an inalienable right to take any arm to any location. That’s what the words say, so we either have to abandon textualism or we have to abandon all kind of weapons controls.

6 gattsuru 08.02.12 at 2:28 pm

I’d be more impressed if it were a particularly invasive strike against liberty by the standards of modern discourse. There are already cities and states where the government is willing to restrict the property rights of people parking in their own driveways attached to a private home. Employers may be unable to hire people because they don’t have such grand credentials as an Interior Design diploma. In California, right to contract has been so castrated that the state has literally fined people for refusing to serve swastika-wearing Nazis.

I find it difficult to place “employers can not snoop into your car”, regardless of why they’d be snooping into your car, as a particularly egregious leap down the slope, especially since we’ve been well past that point for quite a long time.

7 Ron Miller 08.02.12 at 3:24 pm

How about free speech in the workplace too? You should be able to tell your boss he is a jerk without ramifications, amirite?

8 Ron Miller 08.02.12 at 4:06 pm

Nicholas, I’m more worried about textualism as it applies to Leviticus.

I don’t want to start a big debate on this, but I think trying to apply the exact text of the over 200 year old words of our Founding Fathers – a group of folks largely cool with owning slaves and raised children with less care than we raise pets today. I’m pretty sure that notion would really stun Thomas Jefferson and many of the FFs who didn’t even bother to sign the Constitution.

How much smarter do we think the Founding Fathers were then us today? Was this the smartest group of leaders in American history? In the history of the world? Why was this? They did not have women any women or minorities which weakened their brain power. It is just a coincidence that the revolution spawned the greatest minds in human history? We treat them like mythological heroes. Look, they wrote a great document. Appreciate. But we get too carried away and act like we are interpreting the word of God.

I love gattsuru’s world view: who cares about imposing on liberty since we do it all the time anyway? If someone is getting a parking ticket in their own driveway, let’s just drop the whole charade… That just kills me.

9 ras 08.02.12 at 4:20 pm

wfjag et al,

The NRA has missed another issue, one that may underlie why many property owners do not want weapons on their property — potential tort liability.

Out of curiosity – with my usual disclaimer that I am a Canadian layman, so apologies if the q is ridiculously obvious to the initiated – have there ever been any lawsuits following a mass shooting, alleging that privately-enforced gun restrictions, such as a gun-free workplace or campus, contributed to a shooting?

10 Jim Collins 08.02.12 at 4:23 pm

wfjag,
I understand what you are saying. That is why I have no problem with not being able to carry inside my place of employment. I do have a problem with not being allowed to keep my weapon in my vehicle. My career frequently has me in industrial areas. Many times these areas are not too nice places with high crime rates. If my employer restricts my ability to protect myself, isn’t my employer then responsible for my protection? One of my first jobs out of college was in an area of Pittsburgh that most people stayed out of after dark and I worked the 3-11 shift. The building actually had bullet holes in it, some of them happened while I was inside. If that employer did not allow me to legally carry a weapon and I was injured or worse on my way too and from that job, wouldn’t they be liable?

11 Ron Miller 08.02.12 at 6:50 pm

Jim, you want to make your employer liable for your injuries because they did not let you bring a gun and park it in their parking lot?

Everyone hates all lawsuits except the ones they want to bring.

Couldn’t you get a job somewhere else if you don’t like the terms and conditions of your employment?

12 Bumper 08.03.12 at 2:13 am

I am saddened by the lack of creativity from long time readers of OL.

A simple note from your doctor stating that you have a medical condition that can only be treated by you carrying a side arm at all times. Sort of like a service monkey or horse, if you will, call it a service weapon.

We all know nothing trumps the ADA when it comes to getting your way at work.

13 Anonymous Nicholas 08.03.12 at 9:53 am

So nobody is willing to defend textualism in the face of the second amendment? I’ll try again with the next gun-related article. Eventually I’ll get someone who can explain it to me.

14 Anonymous Attorney 08.03.12 at 10:22 am

The NRA is acting like pretty much any other powerful lobby here — they aren’t ideological purists. They’ve backed socialists over Republicans if the former was better on gun rights.

Still, the NRA is really the only successful conservative lobbying force. On every other issue, conservatives have basically failed. So all the money, energy, power and passion get channeled into a group that rallies ’round molded metal pieces that squeeze out high-velocity little metal bits using technology that dates back hundreds of years.

15 ras 08.03.12 at 2:49 pm

We all know nothing trumps the ADA when it comes to getting your way at work.

You mean, an emotional support gun? So only neurotics could carry? Bumper, you’re brilliant!

16 antiredistributionist 08.03.12 at 4:50 pm

Sorry, but contract and property rights are trampled on daily to “vindicate” interests far less important and far less consitutionally based, so I can’t get too excited about the NRA’s stance in this regard. The other side clearly doesn’t care about these issues, so insisting on ideological purity results in unilateral disarmanent (in this case literally as well as figuratively).

PS – ATTENTION RON MILLER – Ezra Klein is commenting here under your name.

17 rileyrebel129 08.08.12 at 4:56 pm

OK, Nicholas, it’s this simple: The amendment says “THE right to bear arms,” not “any and all rights to bear arms.” So a textualist like Justice Scalia (apologies in advance for presuming to speak for him) would probably say that the Framers had a specific right in mind when they used the definite article, and that the unrestricted ability to bring your weapon into a private concern irrespective of the wishes of the owner of that concern was not considered by the Framers to be a part of THE right in question.

And hence, what you posed was a false dichotomy.

18 Walter Olson 08.08.12 at 5:12 pm

Also, if you wish to argue that “a person has an inalienable right to take any arm to any location” is the slam-dunk obvious way to read the text, it helps to show that at least some serious legal thinkers of the past have read the text that way. If in fact none of them has done so, perhaps the reading is not in fact compelled by plain meaning and original understanding.

19 David Schwartz 08.09.12 at 12:39 am

Nicholas: “It’s my bat and I can do what I want with it” doesn’t mean that I can hit you over the head with it. We all understand that no matter how much it’s my bat, it’s still your head. The right to do what you wish with your bat is clearly implicitly constrained by other people’s right not to have their heads hit with bats. Honestly, your argument is entirely frivolous, and I don’t think you’ll find anyone other than yourself who thinks otherwise.

20 gitarcarver 08.09.12 at 2:06 am

I am not dumb enough to engage with Nicholas’ argument but I am not sure there is not some merit to some of the ideas expressed by Jim Miller and others.

If I am hiring someone, I cannot ask how they are going to get to work. I can only ask if there is something that will prevent them from getting to work on time. I can’t ask if they are going to take a bus, own a car, or will ride a bike. So if I cannot ask about the means of conveyance, why does the employer have the right to say what a person can legally carry IN that conveyance? What is legally in a car has no bearing on the business, so why would someone say the business owner has the right to control the contents of the vehicle?

Secondly, while I understand the idea of the rights of property owners to have “approve” what someone brings onto private property, I am not sure that is the same absolute right in the public arena of a business. For example, I can tell someone that they can’t wear a cross on my private property. I can’t do that in the business.

I also keep thinking that it is one thing for an employer to tell an employee what they can do on the clock, but it is another thing to demand something when that employee is off the clock. If you want to pay me when I pull on the parking lot, that is fine with me. But unless you are, I am not sure you have the right to tell me what I can have in my car.

Where would it end if this were the case? Can an employer say “you can’t bring a GM car onto the parking lot?” How about “you can’t have a Bible in your car?” Can an employer say “I hate the Yankees, you can’t have a Yankee sticker on your car on my business’ property.”

I realize that I am using the time honored internet tradition of taking something to the extreme to make a point, but why break with tradition?

I guess what I am trying to say is that when I am working for someone and being paid, they can direct me to do what they want (within certain restrictions.) If I am not being paid, I am not sure they can control my life in a way that prevents me from possessing a legal item in a legal manner.

21 David Schwartz 08.09.12 at 4:42 am

gitcarver: So long as the employer imposes these restrictions at his own expense, why should you care? Simply calculate how much each restriction is worth to you and demand that much additional pay. If you’re an at-will employee, you can certainly do that. And if you’re a contract employee, presumably your employer can’t change the terms.

You want to keep the right to quit your job for any reason, even a silly one. In exchange, you give your employer the right to fire you for silly reasons. If you want different terms, negotiate for them.

22 gitarcarver 08.09.12 at 11:55 am

David,

I believe you are putting the cart before the horse in saying to negotiate for the restrictions or whatever.

Why should I negotiate for something that the employer should not have the ability to restrict in the first place?

I can’t follow the thinking behind an employer not being able to ask how an employee gets to work, but being able to control the contents of a car the employee comes to work in. My mind doesn’t track the idea that the employer can restrict what I do on my time, but is not legally responsible for my actions on my time.

I can understand an employer saying he doesn’t want a weapon in the building and as long as he is paying the employee, that seems reasonable to me.

But in my car? On my time? Telling me what legal product I can have in my possession? When I pull onto a parking lot?

I can’t go with that at this point. (But I am willing to listen.)

23 David Schwartz 08.09.12 at 3:18 pm

gitarcarver: Flip it around. Say you don’t like your boss’ new hair style and you’re willing to quit over it. You say to your boss, “I don’t like your hair, I’m quitting”. Now your boss has to negotiate with you over his hair style. Maybe he’ll pay you more to put up with it. Maybe he’ll change his hair. Your boss can certainly say, “Why should I have to negotiate about something my employee should have no right to restrict in the first place?”

That’s just the nature of an at will arrangement. If something matters to one party, even if it “shouldn’t”, then they can negotiate about it. If you’re willing to not come to work with a gun for an extra $50/week and I’m willing to pay you that extra $50/week, why should the government say to two people who both agree, “No, you can’t make that deal?”

24 gitarcarver 08.09.12 at 4:58 pm

David,

The boss doesn’t have to negotiate on the hair.

The difference in these two scenarios is that in yours, the employee cannot fire the boss from the company for disagreeing on an issue.

In the real world example I gave, the boss can fire the person. The issue is not a “at will” employment, but whether someone has a right to demand a negotiation outside of employment and work related issues as well.

25 David Schwartz 08.09.12 at 9:13 pm

garcarver: The boss doesn’t have to negotiate on the hair only if he doesn’t mind severing the employment relationship. But that’s always true. You can always avoid negotiating by severing an at-will employment relationship. Don’t want to negotiate on carrying a gun, quit.

The employee most certainly can fire the boss. That’s what happens when you quit — your boss loses his job. He is not your boss anymore. Yes, you can’t stop him from being someone else’s boss. But an employer can’t fire you from other jobs either.

I don’t see how you can argue that someone should not have a right to demand a negotiation outside of employment and work-related issues without saying that employees shouldn’t have the right to quit for non work-related reasons. If I want the right to quit because I don’t like my boss’ wife, in exchange I give my boss the right to fire me because he doesn’t like what I do on my time. If I don’t want this deal, I’m free to negotiate a different one, but most people really do want at-will employment.

It’s easy to imagine you can get a better deal, where the other side gives up something of value to them, at the same price. But you can’t. If you want something, whether you negotiate for it or the government forcefully takes it from the other party and gives it to you, you always pay for it because it decreases your value.

26 gitarcarver 08.10.12 at 12:36 am

David,

I see the problem now. I never brought “negotiate” into the conversation – you did.

All I said was that I was not sure why the employer should have any say on activities outside of work that are not related to the employment. That is consistent with employment law.

Somehow you morphed that into a “negotiation for at will employment” argument that never made sense to me and now I know why.

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