Lurk
Happy Creepy Ass Cracka
I believe the fact the establishment has open doors and has no membership restriction for entering the establishment makes "private property" a moot case or modifies it significantly.
Target: Please don't bring firearms into our stores
- Thread starter Tilted
- Start date
I believe the fact the establishment has open doors and has no membership restriction for entering the establishment makes "private property" a moot case or modifies it significantly.
LibertyBeacon
Unto dust we shall return
Got any references to legal cases I can read which establishes this?
Lurk
Happy Creepy Ass Cracka
Nope don't have any at hand and have no intent to look for one. Maybe you can ask Tilted.
LibertyBeacon
Unto dust we shall return
Good thing, because you won't find one.
Lurk
Happy Creepy Ass Cracka
Are you sure about that? Check out the difference between a bar and a bottle club regulations for a start.
LibertyBeacon
Unto dust we shall return
What I am saying is that a retail store like Target is not "public" for the purposes we are discussing here. It is a "public accommodation", but that has a pretty limited meaning in this context.
Smoking is legal. Yet I doubt many question the authority of Target to proscribe smoking in their stores. Or bars or restaurants to do the same.
In places where guns are legal, this argument is no different.
Now, if we want to discuss whether or not it makes sense to ban guns in their store, I would of course say it is a really dumb idea. But that is a much different discussion. But if private property is to mean anything at all in our society, we must respect their decision to request guns not be carried in to their property. I am not saying you have to abide it (as discussed earlier a properly concealed weapon will never be seen), but we must respect they have the right to run their business as they see fit.
The courts have dealt extensively with the "private property/public space" issue when it comes to activities nominally covered/protected by the First Amendment. I wonder how Second Amendment protected activities would be viewed?
http://www.sdsheriff.net/legalupdates/docs/FirstAmendmentExpressiveActivity.pdf
http://www.sdsheriff.net/legalupdates/docs/FirstAmendmentExpressiveActivity.pdf
LibertyBeacon
Unto dust we shall return
Also, what about the states where marijuana laws have been liberalized? Does anyone question the right of a retail store to declare that you are not welcome if you have pot on your person?
LibertyBeacon
Unto dust we shall return
Well when you find something that's even close to being relevant, young fella, please be sure to report back to us, mmkay?
atsonhead:
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Well when you find something that's even close to being relevant, young fella, please be sure to report back to us, mmkay?
Nice try, Mo. I suppose you'll be able to explain what's different about First Amendment protected activities in "public spaces" as compared to Second Amendment protected activity is same spaces. Or not.
But thanks for the "young fella" compliment; I don't hear that much, especially after I turned 50 a long time back.
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LibertyBeacon
Unto dust we shall return
Does that mean you haven't found something that is relevant yet?
It's OK, I have time.
Yes, it certainly does change things. It then falls under what is termed "public space".
LibertyBeacon
Unto dust we shall return
Your ignorance can be cured with a modicum of reading.
RPMDAD
Well-Known Member
I am agreeing with you 100% on this Tilted. And FYI i am a pro gun and CCW advocate.
LibertyBeacon
Unto dust we shall return
Then what you should do is open carry into Target and have them "request" you to leave. You won't, because the goal here is to get them to throw you out by force. Once they've done that, there's not a lawyer who would refuse the case because they will win. Because you know, they have just violated your 2A rights by throwing you off of public property.
It's a genius plan I tell you. Let us know how you make out.
mamatutu
mama to two
That is the smartest thing I have ever seen you post here. You must have just read The Federalist Papers for the first time. Good for you!
Tilted
..
But we aren't talking about a situation where the law says so and so (or such and such) is not allowed to prohibit people from carrying firearms on their (or its) property. It's just that the government itself is not forbidding firearms from being carried. That, absent an additional law, does not mean that private parties (to include those that offer public accommodations) can't forbid it in areas that they have legal authority over. Private parties are allowed to have their own rules beyond those that the government has, except to the extent such rules are themselves prohibited by law. In this case, at least in most places, there are no such laws - i.e., no laws saying a business can't have rules against people bringing firearms on their premises. If there is such a law (and it is constitutionally valid - there are, e.g., potential 5th Amendment issues), then a business can't have such rules. And, btw, the Constitution itself is not such a law - it limits what the government can do with regard to firearms, not what private parties can do.
Just because the government doesn't have a law against wearing cut-off jeans, that doesn't mean a private party (to include a business) can't have a rule against it. It's 'legal' to wear cut-off jeans, it's also 'legal' for a private party to have a rule against wearing cut of jeans. The former does not preclude the latter. The latter is only precluded if there is, in addition to there being no law against the former, a law against the latter. That's how government and law and private property ownership work.
Tilted
..
A private party offering public accommodations absolutely can matter, but for the most part it doesn't in this context. It certainly doesn't make the notion that private property is involved moot.
Here's the thing, if there are laws against something in particular, then there are laws against it. If there are not, then there are not. The only reason there are limitations on what can be done by an establishment that offers public accommodations is because there are laws that establish those limitations. For instance, the federal government as well as every state, as far as I'm aware, have laws that prohibit establishments that offer public accommodations from discriminating against people based on their race. There are other laws prohibiting discrimination based on sexual orientation. But in some places there aren't any laws prohibiting discrimination based on sexual orientation, so it is generally legal. There are also laws that establish requirements such as providing bathroom facilities if your business serves food, or that require handicap access infrastructure. But those requirements or limitations derive from laws, not from the Constitution placing limits on private parties.
There aren't any laws, at least around here and as far as I'm aware, that require public accommodations to allow people to carry firearms. But if there are, and when or where there aware, such would be required. The fact that carrying firearms is a constitutional right, or that it isn't prohibited by the government as a general matter, has nothing to do with it (i.e. except that it being legal in general makes it possible for an establishment to also allow it, if it were illegal more generally it might be illegal at an establishment whether that establishment wanted to allow it or not).
The point is: Yes, some place being a public accommodation does further open the door and allow governments to get their noses under the tent to make rules limiting what that public accommodation can do. But if governments choose not to have particular rules limiting that public accommodation, then that's that. Maryland could, in theory, pass a law saying retail businesses of such and such size, or whatever other conditions, have to allow people to carry firearms on their premises. But if Maryland doesn't have such a law, then those retail businesses don't have to follow such law. And Maryland not having a law against carrying firearms, or even having laws that say it is legal to carry firearms in general, is not the same thing.
Now, all that said, I would make this point. If Target has a policy against carrying firearms in its stores, that does not make it illegal for someone to carry firearms in its stores. There may be some laws that could be interpreted such that it thus became a crime, but generally speaking it would just be breaking Target's own rules. Based on that, Target could then ask someone to leave or bar them from its premises. At that point the person could be guilty of trespass if they didn't leave or if they returned. But just violating Target's policies itself wouldn't be a crime.
Tilted
..
Without getting too in the weeds on this (i.e. without covering every nuance, identifying every exception, and walking through how the law has evolved over time on this issue), here's basically how it works: The Supreme Court has said that First Amendment rights (i.e. to free expression) don't apply in the context of private property, even when that property is used to serve the public or has been opened to the public generally. To paraphrase the Court, the Constitution does not protect against private parties (to include corporations) that might abridge the free expression of others. But to clarify, I'd make a few additional points:
(1) That does not mean that laws can't be implemented (e.g. by states) that to some extent protect people's free expression rights against certain private parties. Such laws (or for states, state constitutional provisions) can raise balancing issues as between property rights (e.g. based on the Fifth Amendment) and speech rights, but the Supreme Court has said that they can in some circumstances be implemented. I don't think they are all that common though.
(2) We should distinguish between private property being used by the public and private property that provides a public function. Based on the so-called public function test, the Supreme Court has concluded that in some quite limited contexts private parties are functioning as the government, and in those contexts constitutional free expression rights do apply. For instance, and I don't know if these situations even exist anymore, when it comes to company-owned towns this is true. Those would be where entire towns - residences, streets, all the stores, all the infrastructure - are owned by a single private corporation. The Court found (a long time ago) that in such cases the private parties were functioning as government and providing government services just like they were public municipalities. That same principle does not apply, e.g., to privately-owned retail stores though. I don't even think it applies to, e.g., large shopping malls anymore though at an earlier time the Court was starting to expand that exception to the general rule to cover a broader range of circumstances. More recently the Court has repudiated that line of reasoning and narrowed the exception back such that it only includes company owned towns.
(3) When private parties take public money, that can also affect the consideration - e.g., such as the case with universities.
(4) Just to reiterate, public accommodation is not the same as public function. With regard to the former, it does not subject private property to constitutional restrictions. Those limitations apply against governments and entities acting as government. Laws can be passed that extend what we think of as constitutional protections to public accommodations, but generally speaking there aren't such laws at the federal level when it comes to free expression rights. Private parties generally can, e.g., prohibit people from trespassing on their private property based on speech. The same is true when it comes to Second Amendment carry rights - at least until new laws are passed preventing it.