A Stitch in Haste

A loyal reader has asked me to weigh in on the following fact pattern:

In Missouri, which has allowed gun owners to carry concealed weapons for a year, the situation regarding employees' vehicles in parking lots hasn't become a hot-button issue. That situation could change, however, if a case in the federal courts is resolved in a way that blunts companies' authority to ban weapons on property they control.
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If the guns-in-vehicles issue were to arise, Greg Jeffery of north St. Louis County, legislative chairman of the Gateway Civil Liberties Alliance, believes companies and employees could find a middle ground: The companies allow guns in vehicles while employees are honor bound to tell the security chiefs.

But Henry Nocella, a security consultant in Howell, N.J., calls this apparent conflict of rights -- to bear arms and to be safe in the workplace -- one that should be settled in favor of safety for employees, including from other workers with firearms on company property.
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Consider the situation in neighboring Oklahoma, where the Legislature passed a law to force companies to allow employees to have weapons in their vehicles on company parking lots.
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Large firms like Whirlpool Corp., ConocoPhillips and Williams Cos. filed suit in U.S. District Court to stop the state law from going into effect. The principle at issue could reverberate far beyond Oklahoma's borders. The companies' argument was the same as they applied to banning weapons in the workplace: Allowing employees to keep loaded weapons in their vehicles would increase the likelihood that someone, sometime, would turn trigger happy and wreak havoc.

First of all, the notion that I have "loyal readers" who are not related to me by blood, marriage or employer is truly mind-boggling. Thanks. Second, let me point out that the Second Amendment is not an area of expertise or interest for me generally.

Having said that, of course it's utter nonsense to require employers to allow weapons of any nature on its premises, including parking lots. It practically goes without saying.

The more interesting question is how the debate even gets framed in such a way as to make such an outcome imaginable.

The answer lies in the distinction between positive rights and negative rights. To review: A "positive right" is a right to something, such as the right to emigrate or the right to enter into a contract. A "negative right" is a freedom from something, such a the right not to have your home searched without a warrant or the right not to be conscripted into the military.

Sometimes a right can be phrased in either positive or negative terms: I should have a positive right to marry another man, which is the same as saying I should have the negative right to be free from marriage discrimination based on my sexual orientation.

Socialists focus almost exclusively on the notion of "positive rights" and define them expansively -- claiming "rights" to such things as healthcare, education, housing, wi-fi access, etc.

Depending on how radical a libertarian you want to be, your position can vary anywhere from "positive rights never exist under any circumstances" to "there should be a very high burden of persuasion before positive rights should be granted in a free society."

This fact pattern, however, is a no-brainer.

The moment a libertarian tries to enter the debate between competing positive rights, he has, typically, already lost. If the debate on guns and parking lots is framed strictly in terms of supposed positive rights -- the "right" to keep a weapon in one's vehicle versus the "right" to a violence-free workplace, then the outcome can only depend on subjective whim and the politics of pull. Meanwhile, the only inarguable right -- the negative right of freedom from interference with one's property-- is conveniently subordinated or totally disregarded.

We have, of course, seen this exact same "positive right versus positive right" framing trap just recently in the monstrous notion of smoking bans -- see my previous posts regarding the bans in Dublin and of course New York City. We see with these bans the exact same (false) dichotomy as the gun-in-parking-lot debate, just in different costumes: A seemingly endless debate between "non-smokers' rights" (huh?) and "smokers' rights" (double-huh?) and no one, absolutely no one, stops to ask about the pub owners' rights -- the right to control his property and to run his business as he sees fit.

Go back to the article for a moment. Why should companies and employees have to find a "middle ground" on the issue of guns in a company's parking lot? Why should those large corporations have to provide any justification for overturning Oklahoma's insane, confiscatory law? Why should they not be able simply to say "It's our parking lot and we say no guns, period!"? The answer of course lies in the fact that property rights (which are universally negative rights) have come to take a back seat to alleged "positive rights" that often require the government to use, to control or even to confiscate private property for higher, "social" purposes and the fulfillment of the "positive rights" of others.

So the next time you hear talk of the right to something, ask yourself whether that right can be expressed in negative terms -- a freedom from something (or, more correctly, from someone -- particularly the government). If it can't, then it's probably not a real right at all.

Related Posts:
Put Out That Cigarette Cell Phone!
"This Land is Private Land, This Land is Public Land"
"McWyatt's Torch"

"An armed society is a polite society."
--Robert Heinlein

"Good fences make good neighbors."
--Robert Frost

Yet again we see an example of inventing, arguing over, and legislating about every conceivable "right" except property rights:

The National Rifle Association began a boycott of ConocoPhillips Co. Monday over the energy giant's attempt to block a state law preventing employers from firing workers who keep guns in their cars on company lots.

"Across the country, we're going to make ConocoPhillips the example of what happens when a corporation takes away your Second Amendment rights," NRA Executive Vice President Wayne LaPierre said.

Okay, try to follow the bouncing bullet here:

1. Private business says "no guns on our property."

[In a sane society, one that recognized the supremacy of property rights, that would be the end of the blogpost. But, alas, our society is not sane.]

2. Those who think the Second Amendment can somehow trump property rights propose a law to that effect. Of course, the question of how exactly one can have a right to own a gun, but not the right to own property generally, remains unanswered by such people.

3. Private business says, correctly, "How dare you! This law stinks, and we're going to oppose it and stand up for our property rights, so there!"

4. Lobbying group says "How dare you say 'How dare you!'!" and calls for an infantile boycott.

All because people couldn't stop at #1 like they should have.

Remember the old saying "Your right to swing your fist ends where my nose begins"? It's remarkably robust, and as good a summation of the difference between positive rights and negative rights as anyone could compose.

And it sums up this non-issue quite succinctly: your right to carry a gun ends where my property line begins. If you don't like it, then don't come on my property. And if that means not working for my private business, then too bad so sad — find another job.

More commentary, still fresh apparently, at my previous post.

See also today's New York Times and Reason.

Hat tip to Right Side of the Rainbow for the link.

The State of Florida is considering making it a felony — a felony — for businesses to ban guns from their property:

Homicides are one of the four most frequent work-related fatal events, together with highway incidents, falls and being struck by an object, data from the U.S. Department of Labor shows. Workplaces where guns were specifically permitted were five to seven times more likely to be the site of a worker homicide relative to those where all weapons were prohibited, a report released by the Brady Center to Prevent Gun Violence said.
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"The Florida legislation is among the most outrageous bills being pushed by the NRA," said Brian J. Siebel, senior attorney for the Brady Center to Prevent Gun Violence's Legal Action Project. "Walt Disney World has a gun-free policy. Mickey Mouse would become a felon in Florida," Siebel said.
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The proposal has sparked debate over which right is more important: a company's property right or the individual's right to bear arms.

If this is the current state of the debate, then there is no debate at all, because the libertarians have already defaulted and vanished into a fog of myopia.

I blogged about a similar proposal in Missouri back in December 2004 and again regarding an NRA-led boycott of ConocoPhillips in August 2005. My thesis is of course unchanged, because the issue has not changed and the analysis is too remedial to require revisiting it.

There is no great "rights versus rights" or "libertarians versus libertarians" conflict here. Property rights are always — always — supreme. Without property rights, no other rights are possible. All other rights, including Second Amendment rights, are always — always — subordinate to property rights.

If you enter my home, I have the right to insist that you not smoke. Or breast-feed your baby or pick your nose or clip your toenails. Or bring a gun. How is this in any way a difficult concept, especially for libertarians (or anyone else who describes themselves as "pro-rights")? Who would dare say that Florida could pass a law making it a felony — a felony — for me not to allow you to bring a gun into my home?

Private home. Private business. Private parking lot. Private property. It's all the same. No fundamental difference whatsoever.

Your Second Amendment rights apply to you — but only on your property, not mine. Just as I have no right to come into your home and demand that you discard your gun — while it is on your property — surely I must have the right to demand that you discard it while on my property. How can people not see that the reciprocal right of you to control your property is for me to control my property? How can people not see that an "asymmetrical right" is a contradiction in terms?

"Difficult" questions of individual liberties only become difficult when they are incorrectly framed. Acknowledging the obvious — that property rights trump Second Amendment rights — removes all difficulty from the debate, and removes all legitimacy from these absurd "right to pack and park" proposals.

Via LP Blog. More thoughts at Liberty Zone.

What a sad, but all too familiar, state of affairs:

A bill that would allow restaurant goers to eat with their dogs has run into a snag at City Hall in St. Louis, Mo., with some worried about health risks.

[S]everal others said they just did not think dogs should be allowed in dining areas, the St. Louis Dispatch reported Friday.
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[The] proposal was not met well at the Board of Aldermen's Public Safety Committee[.]

One possible amendment to the bill would be to allow restaurants to decide for themselves whether dogs were allowed or not.

Here we go again: a preposterous conflict between two false "rights," with property rights ignored except as a matter of political expediency.

In this case: the (fictitious) "right to bring your dog" and the (equally fictitious) "right to eat without dogs around." And the only true right — the right of restaurant owners to decide for themselves based on market forces — scarcely registers, except as a footnote, a split-the-baby compromise, a doggie bag.

Just as with smoking in private bars, trans fats in private restaurants, guns in private parking lots, flag restrictions in private homeowner associations, etc., so too is the question of "dogs in restaurants" an utterly false conflict. There is no "right to bring your dog;" there is no "right to keep the other guy's dog out." There is only the right to run a restaurant, the right to eat there and the right to eat elsewhere.

(Via Fark.)

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Meanwhile:

The state at the center of a national property rights battle moved to limit the use of eminent domain, two years after the U.S. Supreme Court ruled that governments may seize property for private development projects.

Unlike other states, however, the Connecticut measure does not expressly ban using eminent domain for economic development. Instead, it prohibits property from being taken solely to boost property taxes.

Whatever. As with so many of these nominal eminent domain curbs enacted since the abhorrent decision in Kelo v. New London, all an activist legislator has to do is say — usually disingenuously — the words "blight" or "master plan" and the bulldozers can roll in.

More:

Democratic Rep. Ernest Hewett, who voted against the bill, said he doesn't believe changes to the existing eminent domain laws are needed.

"Every court, from the trial court to the Connecticut Supreme Court and the U.S Supreme Court, found that the city did it right and that Connecticut's law is constitutional," Hewett said.

This is, of course, utter nonsense. Sad to see a legislator oblivious to the simple fact that Supreme Court holdings regarding the Bill of Rights represent floors, not ceilings, and that states are always permitted (and, one would hope, eager) to confer more expansive interpretations of those rights than the bare minimums as determined by the Supreme Court.

So for this hack politician to say that "every court" upheld Kelo doesn't mean that the State of Connecticut can't now say that perhaps property owners indeed deserve better under the Fifth Amendment than all those courts held. Just because the courts scandalously turned a blind eye to the plain language of the Fifth Amendment doesn't mean everyone else should too.

But, of course, expanding (i.e., properly recognizing) full property rights impedes the agendas of central planners and activist legislators. No wonder so many are reluctant to embrace reform, or to pass faux reform as a distraction.

"When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position."
--Marsh v. Alabama, 326 U.S. 501 (1946)

Behold the reincarnation of the company town:

Chip Py, a longtime resident of Silver Spring [Maryland], recently returned to an old interest in photography. While wandering through downtown after eating lunch there last week, he took out his camera and started to take shots of the contrast between the tops of the office buildings and the sparkling blue sky.

Within seconds, a private security guard was at Py's side, informing him that picture-taking is not permitted, no explanation given.

"I am on a city street, in a public place," Py replied. "Taking pictures is a right that I have, protected by the First Amendment."

The problem is that it is no longer clear whether Downtown Silver Spring (note the uppercase "D") comprises "city streets" —

Peterson Cos., the developer that built the new downtown ... told Py that although Ellsworth Drive — where many of the downtown's shops and eateries are located — may look like a public street, it is actually treated as private property, controlled by Peterson.

I of course repeatedly advocate stronger legal respect for private property, whether it's a bar owner deciding whether to allow smoking, a restaurant owner deciding whether to cook with trans fat, a parking lot owner deciding whether to ban guns or a homeowners association deciding whether to ban flag displays (or, of course, Suzette Kelo). And if Downtown Silver Spring were truly "private property," then I would be more sympathetic to Peterson Companies.

But this property is far from "private" —

Montgomery County had made a huge public investment in the new downtown. County tax dollars accounted for $100 million of the $400 million it took to transform the area. "There's all kinds of county activities there, promoted by county money. How could this be private?" [Py said.]

The same question bothers County Council member Marc Elrich. "Considering the county paid for it, it ought to be a public space," he says. "We invest a lot of police time and county resources there."

Exactly right. It is the height of hypocritical hubris to take $100 million from taxpayers to fund 25% of your development and then turn around and insist that it is "private property" subject to your extra-constitutional whim.

We recently witnessed a similar conundrum in Las Vegas, where another public-private "partnership" (i.e., a taxpayer subsidy to a politically connected rent seeker) to revitalize the downtown area — but as supposedly "private" property — nearly resulted in unconstitutional restrictions on free speech — until a federal appellate court rightly intervened.

It's quite simple really: Street is as street does. Especially where taxpayer money is involved. It is well-settled law that a "company town" is a state actor subject to the same constitutional strictures as a "taxpayer town." So how can a perverse hybrid of the two not be as well?

UPDATE: Opponents of the no-photography rule staged a mass camera-armed protest on Independence Day.

To review: The only legitimate constraint upon an individual right is ... another individual right. This is not a particularly difficult concept: Most people know and embrace, for example, the uncomplicated notion that "my right to swing my fist ends where your nose begins."

The interplay of respective rights only becomes problematic when "rights" are mis-defined. Your right to smoke ends where my bar begins, but so too does your right to breathe smoke-free air. The only way to concoct a "smokers rights versus non-smokers rights" conundrum is by forgetting about property rights of business owners, which ought to be the beginning -- and the end -- of the question.

So too with the absurd "guns in parking lots" debate. The "right to have a gun in your car"? The "right to park in a gun-free zone"? How about the right simply to own a parking lot and set whatever policy you think best?

Armed with that:

Complaints ... about free home-delivery newspapers in Maryland have inspired a proposed law that, if approved, would be the first of its kind in the nation. Delegate Tanya Shewell, R-Carroll, has proposed a "do-not-deliver" registry that would work similarly to a "do-not-call" registry for telemarketers.
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In addition to publishers, Shewell's bill is likely to run into opposition from lawmakers in both parties who worry it could violate constitutional free-speech protections.
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It's not clear whether the bill would violate the Constitution, but it could prove a legal morass, said T. Barton Carter, a media law expert at Boston University. ... If the law banned newspaper deliveries, it would also likely have to set up a do-not-deliver registry for pizza delivery ads and other fliers routinely delivered to homes, Carter said.

This is, of course, utter nonsense.

Another old saw about rights is that the "right of free press" does not mean the "right to a free press." If you think, as Charles Foster Kane did, that it might be fun to run a newspaper -- then go ahead and run one*, but with your own money and with a voluntary readership.

However, "freedom of the press" not does imply a "freedom to trespass."** Just as a property owner is not required to open up her home to Jehovah's Witnesses or Mormons (or smokers or gun owners), neither does she have to subject her private property to litterers -- irrespective of what the content of the litter may happen to be.

I am also unpersuaded by the "newspaper versus pizza delivery ad" argument. Since there is no legitimate First Amendment issue, there is by corollary also no "unfair discrimination" issue. I've never seen a pizza flier that is so bulky that it has to be wrapped in plastic. If the restriction is based on, e.g., the weight or volume of the item being distributed, then there is no unequal treatment and no issue.

There is no relevant difference -- even in the context of the First Amendment -- between tossing an unwanted newspaper on someone's lawn and tossing an unwanted bag of dog poop. And if this community can craft a rational do-not-deliver registry that protects the right to quiet enjoyment of one's property without any true infringements on anyone else's rights, then good for them.

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The one question that could theoretically give me pause is notice. Such a registry would, in my opinion, have to allow for at least one warning before any penalties were actually imposed. This is not necessarily a law that a reasonable business owner would anticipate a priori.

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*Unless you are a broadcast media company, in which case the First Amendment does not fully apply to you.

**Usually (third item).