In researching the relationship between guns, the Second Amendment and property rights, I've encountered a number of articles discussing the question of whether "gun rights" trump "property rights." The discussion in general revolves around whether owners of private property, be they homes or businesses, have a right to exclude guns and those who carry them, particularly the latter, from their properties.
None of the articles directly addresses whether "gun rights" are themselves property rights, although one in particular states rather explicitly that "Violating the property rights of others is no different than gun-grabbers violating the property rights of gun owners." (emphasis added).
But let's set that aside for the moment. Let's also make sure that we understand the difference between chattels (sometimes referred to as "personal property"), and property rights in chattels, and realty ("real property") and property rights in realty. Guns are chattels; restaurants, stores, homes and parking lots are realty. Chattels and realty are both property, each with a different bundle of rights.
The issue that keeps coming up in these articles is how to reconcile the conventional libertarian position that private property rights trump all other rights, including "civil rights," with the other conventional libertarian position that "gun rights," which include the right to have any gun one wants in one's possession at any and all times and places, are utterly and absolutely inviolable. Assuming both of these things are true, what happens when a private property owner decides he doesn't want guns on his property, and doesn't want people carrying guns on his property? Who wins, and why?
I don't know the answer, and I actually find the questions rather more interesting. One question that I might explore later, is whether this sort of private infringement of the "right to keep and bear arms" is barred by the Second Amendment even though it's the private property owner and not the government that's doing the infringing. Then I might ask, if private infringements are barred by the Second Amendment (because, for example, they may be supported or enforced by state action, viz., police and the courts), whether charging more than I can afford or am willing to pay for the weapon I want is not also an impermissible private infringement. Meaning, if an owner of private property in the form of realty (the store, restaurant, home or parking lot) cannot infringe upon my right to "bear arms" wherever I go, by asserting his property rights in that realty, can an owner of private property in the form of chattels (the seller of the gun itself) infringe my right to "keep" the specific "arms" that I want, by asserting his property rights in that particular gun? If not, what is the objective principle distinguishing property rights in realty from property rights in chattels, that compels a different result in each case?
I've noted many times before that most libertarians I encounter and talk to are huge supporters of, and believers in, property rights. Some have even told me that there is no such thing as "civil rights," or any specific "liberty interests;" property rights are the only legitimate rights in existence and always trump any and all other kinds of "rights." Indeed, the article linked above states, from the libertarian point of view, that "if property rights are not protected no other rights, including gun rights, are possible." This scenario seems to present a number of conundra, which may or may not be resolvable.
Below the fold, let's explore the relationship between "gun rights" and "property rights" a little bit further.
So, are "gun rights" civil rights, human rights, or property rights? Or some combination of the three? Or some other breed of rights entirely? Or can they not be categorized in this fashion? Whichever they are, how do they relate to "property rights" in the sense being explored here?
It's been suggested to me recently by a very thoughtful gun enthusiast that the "right to keep and bear arms" is a human right, viz., the "right to exist in a particular state of being," specifically, "the state of being armed." This is a really interesting concept, and it got me thinking; is there any "particular state of being" in which a person does not have a "right to exist"? States of being can't be outlawed or criminalized; even "the state of being a pedophile" or "the state of being a drug addict" can't be a crime, only the acts associated with such states of being can be made illegal. It could be said, then, that one has a right "to exist in the state of being sexually attracted to children," a right "to exist in the state of being addicted to heroin," and a right "to exist in the state of being a pyromaniac."
So, let's say that "gun rights" are human rights, viz., the "right to exist in the state of being armed." The question then becomes, do private property rights trump the "right to exist in a particular state of being"? Can a private property owner exclude armed people from his land, via his property rights in that land? Or, does the Second Amendment give armed people the right to intrude upon private property, based on their right to be armed without any infringement, be it public or private?
If the answers to these two questions are Yes and No, respectively, then property rights trump human rights in general, and "gun rights" in particular. "Gun rights" would thus be subordinate to property rights. Private businesses and homeowners can post and enforce signs on their property saying "No Guns," or "Unarmed Only."
If the answers to these two questions are No and Yes, respectively, then human rights in general, and "gun rights" in particular, trump property rights. The "right to exist in a particular state of being" must include the right to exist in that state of being on anyone else's private property. Private businesses and homeowners cannot post or enforce those aforementioned signs; they must allow armed people onto the premises and, in the case of businesses, offer them goods and services.
But if this is the correct result, it raises an additional obvious question. The libertarian objection to the Civil Rights Act, as I understand it from what Ron and Rand Paul (inter alia) have said, is that in prohibiting discrimination by private businesses it interferes with private property rights. Property owners have, or should have, a right to exclude from the premises, and refuse to provide goods or services to, whomever they wish. Assuming that's correct, the obvious question is this: If a private property owner cannot exclude armed people from his property just for being armed, why can a private property owner exclude black people from his property just for being black? Or gay people just for being gay? Surely, if a person has a "right to exist in the state of being" armed, he has a "right to exist in the state of being" black, or gay, or Muslim, or Mexican, or bad at math, or angry, or anything else one could possibly think of.
So, if (1) the "right to exist in a particular state of being" trumps the right to exclude people and chattels from one's private property, (2) there is no "state of being" in which a person does not have a "right to exist," and (3) every living person "exists" in one "state of being" or another, wouldn't that annihilate private property rights (or, the right to exclude others from one's property) altogether?
What would be the objective distinguishing principle by which a private property owner could not exclude armed people from his property just because they are armed, but could exclude black people or gay people just because they exist in their respective states of being? What distinguishes the "state of being" armed from the "state of being" black that compels a different result? Conversely, what would be the principle by which an armed person could lawfully intrude upon the private property rights of another, based on the former's right to exist in the state of being armed, but a black, gay or Muslim person could not intrude upon another's private property rights based on the former's right to exist in the state of being black, gay or Muslim?
I think the same questions would have to be asked if "gun rights" are civil rights. "Civil rights" is a much broader category than either "human rights" or "property rights," and may even subsume the latter two. "Gun rights" as civil rights might include, e.g., a "right to self-defense," a "right to be armed" as discussed above, a "right" to hunt, to sport-shoot, to kill bad guys or to nullify election results. In any event, the question remains: If a private property owner wishes to exclude guns and/or armed people from his private property, which would be his right (property rights in realty include the right to exclude others from entering), can he do so without violating their civil rights? If he can, then again, property rights trump civil rights. If he can't, then why can he exclude black, gay or Muslim people from his property without violating their civil rights?
Which also raises another interesting question: Would excluding armed people from a private business constitute a form of discrimination, redressable by the Civil Rights Act (42 U.S.C. § 1983)? If excluding black, gay or Muslim people from a private business constitutes impermissible private discrimination, why does excluding armed people not also constitute discrimination? [Of course, "armed people" are not a "protected class" under the Civil Rights Act. (Neither are gay people.) Should they be?]
Another question: If we grant or conclude that a property owner cannot exclude armed people, but can exclude black or gay people, what if that black or gay person is also armed? Can an excluded person defeat the exclusion, and thus usurp the owner's private property rights, by arming himself?
Finally, what if "gun rights" are themselves property rights? Even if one disagrees that gun rights are property rights categorically, one cannot deny that guns are property, and that gun owners and carriers do have property rights in their guns. Owning, possessing, keeping, carrying, holding and transporting a chattel are all property interests. The armed person has property interests in his gun, which include the right to carry it on his person and transport it from place to place. The owner of the restaurant, store, home or parking lot has property interests in that realty, which includes the right to exclude both people and chattels from that property.
So to the extent gun rights are property rights, the question then becomes, whose property right prevails? And/Or, which property right prevails? Property rights in realty are different from property rights in chattels, but are they superior? Do property rights in realty trump property rights in chattels? Does the right to exclude people and chattels from one's realty trump the right to possess, carry, hold and transport a particular chattel wherever one goes? Or vice-versa? And, regardless of what the answer is, the more important question is always, why?
The reader will probably note that this diary contains a lot more questions than answers. In this case that's quite deliberate. I don't think there are good or easy answers to these questions. If gun rights are human/civil rights, and if those human/civil rights trump private property rights, why do other human/civil rights not trump private property rights? What distinguishes those that do from those that don't? If gun rights are property rights, which/whose property rights prevail, and why?
I think the answers that readers come up with will be very much dependent on the outcome they want, or would want if they were an actor on either side of this scenario; whichever interest they feel is more important, whether generally or situationally. I myself am not sure yet.