Employers Must Pull the Trigger

I am co‐​counsel to Dick Heller in District of Columbia v. Heller, so I take a backseat to no one when it comes to vindicating Second Amendment rights.

But the “Take Your Guns to Work” law signed by Florida Gov. Charlie Crist last week, with vigorous backing from the National Rifle Association, has nothing to do with the Second Amendment.

It has everything to do with violating the rights of private property owners.

Despite the bill’s overwhelming support among his Republican colleagues in the state Legislature, Gov. Crist should have vetoed it. Still, if the business community challenges the constitutionality of the legislation, perhaps a proper respect for property rights will be restored.

Essentially, the new law prohibits business owners from banning guns locked in cars on company property. It applies to employees, customers, and others who have been invited onto the property, provided they have a permit to carry the gun.

The NRA campaigned aggressively in support of the Florida law and comparable laws passed by four other states. Executive vice president Wayne LaPierre explained that it’s “your constitutional rights the ban crowd is after.”

He went on to note, “the Second Amendment cannot be trumped by corporate power.”

Florida Sen. Durell Peaden, Republican, chimed in: “The second thing they wrote about in that Constitution (no doubt, he meant the Bill of Rights) was the right to bear arms.”

With due respect to LaPierre and Peaden, these comments reflect a profound misunderstanding about the nature and purpose of the U.S. Constitution. The Constitution is not a code of conduct that private citizens and companies must obey.

It has two primary objectives: to secure individual rights, and to limit the power of government. It’s the government, not private parties, which is required to obey the Constitution.

That threshold distinction between private rules and public laws is critical. We will soon find out from the U.S. Supreme Court whether the Second Amendment can be invoked to invalidate Washington, D.C.‘s ban on all functional firearms.

I am cautiously optimistic that the court will affirm a lower court ruling that the D.C. government has violated the Second Amendment rights of the city’s residents.

But I am even more confident that the court would never consider whether the Second Amendment prevents a private company from banning firearms on its property. Quite simply, that question does not implicate the U.S. Constitution.

LaPierre attempts to skirt the public‐​private distinction. He notes that a “company parking lot” is “public‐​access.” That, too, is misleading.

Private property does not belong to the public. Employing a large staff, providing services to lots of customers, or permitting public access to a parking lot is not sufficient to transform private property into public. The litmus test for private property is ownership.

The owner of the property should be able to determine — for good reasons, bad reasons, or no reason at all — whether to admit gun owners, non‐​gun owners, neither or both. Customers, employees and guests who object may go elsewhere. That’s the controlling principle.

Courts should not trivialize the Constitution by pretending it controls private behavior.