Jane had jumped through all the hoops, both required and suggested, to obtain her license to carry a concealed handgun. She had joined a club. She had taken courses. She had studied the law. She had become proficient in the use of the gun. She had researched the best gun to carry and the best carry holster. Now she had put it all together and was out for the first time “packing heat.”
Her first task of the day was to go to the Post Office. She did not get beyond the Post Office door. “NO FIREARMS ALLOWED.” She looked at the sign in frustration. “They can’t do that,” she muttered to herself, “I have a license.”
Just because a city or state issues you a license to carry a gun that does not mean you can carry a gun anywhere you please. These rights often must be counter balanced against other rights and public safety. They are subject to certain limitations.
Our Federal Constitution was not intended to be an exhaustive list of rights belonging to the people. Other rights that are not part of the written Bill of Rights, are equally part of the tapestry of rights belonging to all mankind. The authors of the Bill of Rights listed what they considered to be some of the more important rights, but those rights came from natural law that is, they were rights given to all mankind by God.
The right to “bear arms” is the outgrowth of two more basic rights. The first is the right to life. Without the right to life, no other right has meaning. For the right to life to have substance, a person must have the right to defend his or her life from violence. Basic to the right to life is the right of self-defense. The right to self-defense is meaningless unless you are able to defend yourself in an effective manner. Thus, the right to have arms (the term “arms” is not confined to firearms) is an instrumentality of, and an expression of, the right to life.
The second right is the right to own property. A firearm is a piece of personal property. As such, you should have a right to own a gun absent some compelling governmental interest. As the owner of property, you have the right to control that property so long as you are not endangering others.
If you carry a gun there are other rights that must be considered. One of these is the right to travel. The right to travel is an essential part of the right to liberty. Out of the right to travel, the courts carved the right to have access to public accommodations. It was on this theory that the federal courts struck down laws that discriminated against blacks in terms of access to restaurants, public transportation, hotels and other places that hold themselves open to the public. If the right to travel (part of the right to liberty) did not trump the right to property in certain circumstances, the right to property would allow a restaurant owner to refuse to admit people he did not like based on race, sex, religion and national origin.
Your right to travel does not give you the right to trespass over someone else’s property. There is, however, an exception to this rule. In an emergency, if your life is endangered, or in some cases if your property is endangered, you may enter onto another person’s property. This is called the defense of “necessity.” The law has balanced your rights with the property owner’s rights and determined that the higher good is obtained by allowing you to enter the other person’s property. Your entry is not as a matter of right, rather, the property owner’s ability to defend his property against your enemy is limited by law.
Under certain circumstances, your rights can be terminated by the government. If you are guilty of a serious breach of the social order, your liberty or life could be terminated by the government. Each of our rights are limited by the concept of reasonable use. Our right to do something does not extend to the right to injure or endanger others by our actions. Thus, the right to own an automobile does not give us the right drive irresponsibly.
Within the law there is a constant balancing of rights, duties, and defenses. Having a “right” to do something is not the definition of whether or not you can or should do something. All rights are subject to the reasonable police powers of government. For example, you have the right to put a political sign up on your house, but the government can tell you, within reason, how big the sign can be and how long it might be displayed.
There are clearly places where gun owners may not take their guns. If you are visiting a friend at Folsom Prison, do not take your gun. Most federal property is posted to prohibit the carrying of firearms. Statutes make it illegal to have guns in certain parts of airports and on all interstate common carriers unless very specific rules are followed. By federal law, guns may not be taken into schools without the permission of the person in charge of the school. Many courts have rules prohibiting guns in the courtroom. Many psychiatric hospitals have rules against guns inside the hospital. In some cases these rules are imposed by law and in others they are imposed by the person controlling the facility. Each of these places have reasonable grounds based on public safety concerns co restrict firearms possession. I might disagree with some of these rules, but I cannot say that they are unreasonable in theory.
You have a right to say who may come into your home. If you invite someone into your house, you can restrict them to your living room. You can prohibit them from consuming alcohol or smoking in your home. You can prevent them from bringing their dog or their gun into your home. You can do this because you have the right to exclude them from your home. Because you can exclude them, you can admit them on conditions. This is your inherent right as the person in control of the property. If you own unimproved land, you may post it for “No Trespassing” and “No Hunting.” If you rent your property to someone else, however, you surrender much of the control of your property to the tenant and there are cases that say that landlords can not prevent tenants from owning guns. If someone comes onto your property against your wishes, you can have them arrested for trespassing. Likewise if your employer says, “No gun on the job,” and you violate his rule, you will be fired. The employer, as the person in control of the property, has the right to set this rule.
Some states that passed “concealed carry” handgun laws also enacted laws that allow businesses to exclude people who carry guns from coming onto their property. To the extent such laws are lawful, they are an extension of the common law of trespass which exists even if the special laws had not been enacted.
As a gun owner I am annoyed when I am barred from bringing a concealed handgun into a public building or business. If I were carrying openly, I can understand how my having a gun might upset other people. If no one knows I have a gun and the police have licensed me as being a suitable person to have a gun, I am unable to see the harm. If! were a bad person and were not licensed, I would nOt worry about signs that said, “No guns.”
Some public buildings have what I consider a reasonable compromise. They provide a place for the gun to be checked. It is, after all, their property and they have met my needs by providing a place for Storage. Many stores require you to check bags when you enter. Requiring you to check your gun would not seem to be much different.
There are a number of policy questions businesses should consider before implementing a “no gun” policy. By announcing that the Store is “gun free,” they are announcing that no one inside the store is armed. The bad person sees this as an invitation. In a world where no one else is armed, the person with a gun is king and unstoppable. It is no coincidence that most of the places where there have been multiple killings are places that are “gun free.” I have never heard of anyone trying to rob a gun show.
Merchants have no general duty to safeguard their customers other than to maintain their premises in a reasonably safe condition and to warn customers of dangers that might not be apparent. They are not insurers of their customers’ safety. They are not generally responsible for the illegal acts of third parties. That is, there is no liability against the merchant if some third party intentionally hurts one of the merchant’s customers. On the other hand, if a merchant forbids people who are licensed to carry guns from bringing their legal guns onto his premises under the guise that he is protecting their safety, he has then assumed an obligation that he did nOt previously have. He has undertaken the specific task of protecting his customers. That undertaking creates a special relationship between the customer and merchant which did not previously exist. If the merchant, having created the special relationship, then fails to take other steps necessary to protect his customers from the criminal acts of others, he can be held liable for injury to his customers by the illegal acts of third parties.
Another problem arises if such businesses attempt to search their customers in an effort to enforce their regulations. The ability of a private person to detain you or involuntarily search you, is very limited. It would not cover a general search for weapons. A non-consensual touching in such cases would be a criminal battery. On the other hand, they can bar you from entering their premises if you do not consent to the search. Although passing through a metal detector might be acceptable to some customers, passing all customers through an airport type search would not be acceptable to most customers. If the store does not provide the licensed gun owner with a place to check his or her gun but forbids entry, then the store is not only creating a special relationship, but it is making a political statement that translates to, “I don’t want to do business with people who have guns.”
Gun owners should not support businesses who allow their anti-gun bias to move from philosophy to open discrimination. Not only should you not do business with such companies, but you should write them a very polite letter explaining how hurt you feel at their discriminating against you. An angry letter will simply be ignored as the ranting of a crackpot.
State laws that specifically encourage businesses to exclude guns owners are troublesome. For many people the ownership and carrying of a firearm is an expression of philosophy. It is a belief in the integrity and worth of the individual, common citizen. It is a statement that the one who carries a gun is not willing to be a victim and will not give up his or her life or property without extreme objection. In a large number of assaults, the mere display of a firearm expresses the intent and feelings of the licensed holder in such unambiguous terms that the assailant abandons his attack.
It is highly unlikely that a court would accept the concept that carrying a licensed gun for protection is an expression of speech entitled to First Amendment protection. However, laws imposed by some states are thinly veiled attempts by government officials to force individuals to embrace their anti-gun, anti-self defense ideology through compelled statements, or actions equaling statements. Such compulsion is a violation of the First Amendment. Although all citizens have the right to express and, within limits of public safety, act on their private beliefs, it is inappropriate for government to attempt to join the ideological battle.
This article was reprinted from Women&Guns Nov-Dec, 2003 , Copyright © 2003, Karen MacNutt