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Gun Rights, Property Rights, and Takings

By on April 5, 2022 Categories: , , ,

In recent years, some two dozen states have enacted laws requiring private property owners to allow employees, customers, and others to bring in guns or store them on their land and buildings. Variously known as “parking-lot laws” and “gun-at-work” laws, such regulations are a serious violation of property rights. In many cases, they may also qualify as a taking requiring compensation under the Supreme Court’s 2021 ruling in Cedar Point Nursery v. Hassid.

I am a supporter of strong Second Amendment rights to keep and bear arms, and disagree with those who believe that the Amendment only creates a “collective” right for state governments to have a militia, or that gun rights deserve little or no judicial protection. But laws forcing unwilling private property owners to accept the presence of guns do nothing to protect the Second Amendment, undermine individual autonomy, and – at least in many cases – are themselves unconstitutional.

In an excellent recent Michigan Law Review article, Duke Law School Prof. Jake Charles describes a variety of state laws forcing property owners to accept guns on their land. He finds that, as of 2020, 24 states have enacted such laws. That includes a dozen that impose such obligations on all private owners, and a comparable number that impose them only on employers and businesses.

As Charles describes, these laws are often cloaked in the rhetoric of the Second Amendment. But, in fact, they do nothing to protect Second Amendment rights. Like most other constitutional rights, the Second Amendment constrains only the government. It does not require private individuals to possess guns or to accept their presence on their land. In that respect, it is similar to other provisions of the Bill of Rights. For example, the First Amendment does not require private owners to allow on their land every kind of speech protected against censorship by the state. A conservative property owner can keep out liberal speech, and vice versa. Similarly, a private owner can restrict the types of religious services allowed on her property in ways that would violate the Free Exercise Clause if the government did the same thing. Thus, a Christian can bar Muslim services on her land, and vice versa.

Such distinctions between private and government restrictions exist for many reasons. But one crucial reason is that few if any private owners enjoy the kind of monopoly power that an unfettered government has. Even if liberal speech is barred on the property of a conservative owner, there are many alternative outlets for it. By contrast, absent constitutional constraints, the government could potentially suppress various types of speech throughout a vast territory. The same points apply to religion and guns.

There are multiple good reasons to allow private owners to bar guns from their land, if they so choose. Those reasons dovetail with standard general accounts of the advantages of private property.

Perhaps the most fundamental of these is the link between private property rights and individual autonomy. One of the main advantages of being a property owner is the right to use your land as you see fit, even if other members of the community don’t understand your reasons, or even disagree with them. Some people object to the presence of guns on their land for aesthetic or moral reasons (e.g. because they are staunch adherents of a philosophy of nonviolence). Such autonomy deserves respect, even if we disagree. Similarly, vegetarian property owners should have every right to forbid the presence and consumption of meat on their land, even if most of their neighbors don’t share their objections to meat-eating.

A closely related rationale for respecting property rights in this context is the danger of imposing a one-size-fits-all rule on a wide range of owners with very different situations and needs. Even owners who do not object to the presence of guns on principle may have good reasons for barring them in some situations.

For example, owners of shelters that serve victims of domestic violence sometimes forbid guns in order to reassure their understandably fearful clients. Some businesses, private planned communities, and other organizations have their own armed security guards. They might reasonably conclude that their guards provide more than sufficient protection for both owners and visitors, and they would therefore prefer rules that ensure there are no other armed people on the premises. Allowing the latter may do little to increase protection against crime, but could potentially lead to dangerous accidental armed confrontations between guards and armed customers.

It is also important to recognize that allowing owners to bar guns enhances not only the liberty of the owners themselves, but also that of customers and clients who, for whatever reason, prefer to patronize gun-free spaces. If a state law requires all private owners (or even only all businesses or employers) to allow the presence of guns, such gun-free options will be eliminated for everyone – owner and customer alike.

Obviously, some potential customers, employees, and clients prefer spaces where guns are allowed. But, in a diverse society with a competitive market, such options are likely to be plentiful. That is especially true in the pro-gun “red” states that have enacted the lion’s share of parking-lot and gun-at-work laws. In such places – and indeed in most of the country – gun owners are not an oppressed minority shunned by the vast majority of the population. Much the contrary. There are likely to be many employers, businesses, and other entities willing to cater to their preferences.

As of late 2020, some 32% of American adults owned guns, and 44% lived in a household with at least one gunowner. They are a large and influential part of the population, and unlikely to face systematic stigma and ostracism, even if there is a degree of irrational prejudice against them in some left-wing quarters.

This latter point differentiates gun access laws from “public accommodation” laws barring discrimination on the basis of such factors as race, sex, and religion. I will not try to assess the merit of  public accommodation laws here (though I will say I think they often go too far).

But at least one key rationale for public accommodation laws does not apply to gun owners. Traditional antidiscrimination restrictions are often justified on the ground that they are needed to protect historically oppressed minorities against widespread systematic exclusion and segregation. The paradigmatic example is, of course, that of African-Americans in the Jim Crow-era South. Gun owners cannot plausibly claim to be victims of large-scale historical oppression and exclusion to anything like the same degree.

In addition, while race, sex, ethnicity, and sexual orientation are “immutable” characteristics that are difficult or impossible to change, a gunowner can gain access to a gun-free building through the simple expedient of leaving his or her weapon at home. While that may be a painful constraint for some, it is not as bad as being barred from the facility in question entirely.

Sadly, the imposition of mandatory gun-access laws on property owners is part of a more general turn against private property rights by many conservatives, in recent years. Other examples of the same tendency include widespread right-wing support for the use of eminent domain to build Trump’s border wall, advocacy of laws forcing social media firms to host speech they object to, and legislation barring private owners from imposing Covid-19 vaccination requirements as a condition of employment or entry on their land. These developments are dangerous and troubling. Conservatives would do well to remember their traditional respect for property rights.  

The political left, of course, has its own longstanding dubious anti-property tendencies. Among other things, many support “NIMBY” zoning restrictions, and harmful uses of eminent domain. These tendencies have diminished somewhat, in recent years, though they are far from gone. But that in no way excuses the growing bad behavior of the right.

In addition to unjustly undermining property, many mandatory gun-access laws also violate the Takings Clause of the Fifth Amendment, which requires the government to pay “just compensation” whenever it takes private property rights.

Before last year’s ruling in the Cedar Point case, conventional wisdom assumed that, under Supreme Court precedent, only a “permanent physical occupation” of property qualifies as a per se taking automatically requiring compensation under the Takings Clause. With rare exceptions, all other state-mandated intrusions on property were subject to the complex Penn Central balancing test, under which the government usually prevailed and therefore did not have to pay compensation. Cedar Point involved a challenge to a California law requiring agricultural growers to give union organizers access to their property for three hours per day, 120 days per year.

In a 6-3 decision, divided along left-right ideological lines, the Supreme Court struck down the California law, and established the rule that “a physical appropriation is a taking whether it is permanent or temporary.” Thus, the California law qualifies as a taking, even though the union organizers were given access to growers’ land “only” 360 hours per year. In my view, the Supreme Court got this rule right. But here, I focus primarily on its implications for laws forcing private property owners to accept the presence of guns on their land.

As Joseph Blocher explains in an insightful September 2021 post at the Duke Center for Firearms blog, the Court’s reasoning in Cedar Point readily applies to parking-lot and gun-at-work laws. Here too, the government requires property owners to accept the presence of people (armed gun owners) and objects (guns themselves) the owners would prefer to keep out. In most cases, the presence of the guns and gun owners is only temporary (limited to working hours). But, under Cedar Point, that distinction no longer matters.

Indeed, depending on the hours the business or other regulated enterprise keeps, the amount of unwanted intrusion required by gun-access laws might be considerably greater than that at issue in the Cedar Point case. Assume that a business is open 40 hours per week, fifty weeks per year, and state law requires the owner to permit the presence of guns during that entire time. That translates to as much as 2000 hours per year of unwanted physical occupation, several times more than the 360 hours required by California law at issue in Cedar Point. Of course, gun owners might not actually make use of the full 2000 hours. But labor unionists taking advantage of the California law did not always make use of their full 360 hours, either.

Blocher rightly points out that Cedar Point includes an exception for cases where the government restricts discrimination by businesses “generally open to the public.” Thus, the Court accommodated its previous precedent in PruneYard Shopping Center v. Robins, which upheld a law barring mall owners from expelling people engaged in political speech. I think Pruneyard is a dubious precedent, for reasons well articulated in a 2008 article by Gregory Sisk. But so long as it – and the related exception in Cedar Point – persist, it may protect some gun-access laws from takings liability.

But, as Blocher explains, that exception will not save the many applications of these laws  impacting enterprises that are not open to the general public. These include the many employers whose premises are open only to their own workers, or only employees plus a select group of clients. Such cases are closely analogous to the situation in Cedar Point itself, which involved a tree nursery generally open only to the owners and their employees.

In the wake of Cedar Point, therefore, property owners have a strong case that parking-lot laws and gun-at-work laws often qualify as takings requiring compensation. In an article published in the immediate aftermath of the Cedar Point decision, I emphasized that the Court’s ruling would protect left-wing interests as well as right-wing ones. Because the facts of Cedar Point involved a clash between employers and union organizers, many observers were inclined to downplay or overlook this possibility. But the implications for gun-access laws help illustrate its validity.

Even if property owners succeed in proving that parking-lot laws are takings, it is not clear how much compensation they would get. In most cases, Supreme Court precedent requires “fair market value” compensation for takings. It may not be easy to measure the fair market value of mandatory access for gun owners. One possible metric is the market value of renting a storage facility for a gun for the requisite number of hours. But perhaps courts will need to adopt some other approach. There are few, if any, analogues to this question in previous takings-compensation precedent. This issue is likely to be fought out in future litigation.

But even if property owners get only modest compensation, it might still be enough to deter state and local governments from adopting and enforcing parking-lot laws and other similar regulations. Even if liability is small on a per-hour basis, the costs may well mount up, over time, as courts assess liability for many thousands of hours of mandated gun storage and access each year. That is especially likely if the law does not limit the number of guns that must be accommodated.

In sum, state laws forcing unwilling private property owners to allow guns on their land are an unjustified affront to property rights. In many situations, they also qualify as takings requiring compensation under the Fifth Amendment.

Ilya Somin is Professor of Law at George Mason University, and author of Free to Move: Foot Voting, Migration and Political Freedom, and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]