----------------------------------------------------------------------
Message: 1
Date: Wed, 03 Aug 2005 12:17:54 -0500
From: Robert Woolley <[EMAIL PROTECTED]>
Subject: takings
To: Firearmsregprof <[email protected]>
Message-ID: <[EMAIL PROTECTED]>
Content-Type: text/plain; charset="US-ASCII"
I just learned of a case proceeding in Oklahoma over a new law that makes
it
illegal for the owner of a parking lot to prohibit guns from being carried
within the cars that park there.
The case generally is described in this article:
http://www.texarkanagazette.com/articles/2005/08/02/local_news/news/news05.t
xt
The case is Whirlpool Corp. v. Henry, No. 04-CV-820-H(J) (ND Okla). A
certified question (whether violation of the statute is a criminal
offense)
was answered by a state appellate court here: 110 P.3d 83.
An article discussing the general problem of whether to allow guns in cars
at one's place of employment is here:
http://www.law.com/jsp/article.jsp?id=1101738488286
The general question I pose to the list is this: What constitutional or
general legal principles govern whether, when, and to what degree a state
legislature may intrude on private property rights, particularly the right
to exclude others from one's property, as it relates to the carrying or
possession of firearms?
In Minnesota, a case has just been filed challenging our newly re-enacted
shall-issue statute on religious freedom grounds. The churches claim that
it
violates their free exercise of religion to have to tolerate guns in cars
or
carried on the person in their parking lots, and to have to post signs of
specific description and wording in order to exclude guns from their
buildings.
One of the claims is under the takings clause. The same plaintiffs, in an
earlier suit, had made the same argument, though the case was disposed of
on
other grounds, so the takings question was never reached. Their memorandum
of law is here:
http://www.fredlaw.com/news/conceal/SingleSubjectandTakingsSummaryJudgmentBr
ief.pdf, with the takings argument starting on p. 18.
So the more specific question is this: Are state restrictions on the
rights
of private property owners to exclude persons carrying guns (on their
person
or in a car) legitimately analyzed as a taking, either a physical or a
regulatory taking?
Discuss amongst yourselves.
--
Bob Woolley
St. Paul, MN
[EMAIL PROTECTED]
"Democracy has at least one merit, namely that a Member of Parliament
cannot be stupider than his constituents, for the more stupid he is,
the more stupid they were to elect him."
-- Bertrand Russell
------------------------------
Message: 2
Date: Wed, 03 Aug 2005 12:38:24 -0500
From: Paul Barnett <[EMAIL PROTECTED]>
Subject: Re: takings
Cc: Firearmsregprof <[email protected]>
Message-ID: <[EMAIL PROTECTED]>
Content-Type: text/plain; charset=ISO-8859-1; format=flowed
Robert Woolley wrote:
The general question I pose to the list is this: What constitutional or
general legal principles govern whether, when, and to what degree a state
legislature may intrude on private property rights, particularly the
right
to exclude others from one's property, as it relates to the carrying or
possession of firearms?
I think it's important to consider the inverse question as well:
What constitutional or general legal principles govern whether, when,
and to what degree a state legislature may intrude on private property
rights, particularly the right to ADMIT others onto one's property, as
it relates to the carrying or possession of firearms?
In Texas, various special interest groups managed to get clauses
inserted into the original CHL law that prohibited carrying firearms on
their premises. Churches were among them, but some of the churches
didn't like the prohibition, and they had no choice. Two years later,
the law was modified so they had to post a sign or provide written
notice for the prohibition to be effective. But, a few private property
owners still have prohibitions in effect, regardless of whether they
post a sign or provide written notice.
------------------------------
Message: 3
Date: Wed, 03 Aug 2005 12:58:21 -0500
From: "Joseph E. Olson" <[EMAIL PROTECTED]>
Subject: Re: takings
To: <[email protected]>
Message-ID: <[EMAIL PROTECTED]>
Content-Type: text/plain; charset="us-ascii"
Note that in these cases the property owner WANTS the person on their
property but objects to what is discretely secured in their POV (which the
property owner INVITES to park in his lot).
Here's an analogy. A gun (carried for securitry) is like a seeing-eye
dog. A piece of special purpose safety equipment. The carry permit
holder could choose a gun or a cell phone. A blind person can choose a
dog or a cane. In either situation the property owner has to allow the
item on his property. It doesn't matter of the property owner is allergic
to dog hair, hates dogs because he was bitten as a child, fears others
will be bitten, or fears his carpet will be defaced - the state can make
him allow the dog. If they can do one, they can do the other. Same
thing with requiring 5% of parking to be set aside for handicapped persons
(it doesn't matter if the property owner has 20 years of records showing
1% is sufficient in his lot).
The recent Supreme Court case reinforces the power of the state not vice
versa.
Paul Barnett <[EMAIL PROTECTED]> 08/03/05 12:38 PM >>>
Robert Woolley wrote:
The general question I pose to the list is this: What constitutional or
general legal principles govern whether, when, and to what degree a state
legislature may intrude on private property rights, particularly the
right
to exclude others from one's property, as it relates to the carrying or
possession of firearms?
I think it's important to consider the inverse question as well:
What constitutional or general legal principles govern whether, when,
and to what degree a state legislature may intrude on private property
rights, particularly the right to ADMIT others onto one's property, as
it relates to the carrying or possession of firearms?
In Texas, various special interest groups managed to get clauses
inserted into the original CHL law that prohibited carrying firearms on
their premises. Churches were among them, but some of the churches
didn't like the prohibition, and they had no choice. Two years later,
the law was modified so they had to post a sign or provide written
notice for the prohibition to be effective. But, a few private property
owners still have prohibitions in effect, regardless of whether they
post a sign or provide written notice.
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Message: 4
Date: Wed, 3 Aug 2005 12:21:15 -0600
From: Charles Curley <[EMAIL PROTECTED]>
Subject: Re: takings
To: "Joseph E. Olson" <[EMAIL PROTECTED]>
Cc: [email protected]
Message-ID: <[EMAIL PROTECTED]>
Content-Type: text/plain; charset="us-ascii"
On Wed, Aug 03, 2005 at 12:58:21PM -0500, Joseph E. Olson wrote:
Note that in these cases the property owner WANTS the person on their
property but objects to what is discretely secured in their POV (which
the
property owner INVITES to park in his lot).
Here's an analogy. A gun (carried for securitry) is like a seeing-eye
dog.
A piece of special purpose safety equipment. The carry permit holder
could
choose a gun or a cell phone. A blind person can choose a dog or a
cane.
In either situation the property owner has to allow the item on his
property. It doesn't matter of the property owner is allergic to dog
hair,
hates dogs because he was bitten as a child, fears others will be
bitten, or
fears his carpet will be defaced - the state can make him allow the
dog. If
they can do one, they can do the other. Same thing with requiring 5%
of
parking to be set aside for handicapped persons (it doesn't matter if
the
property owner has 20 years of records showing 1% is sufficient in his
lot).
Another analogy: A gun is like a copy of the Koran or Libertarian
Party platform (each protected by the IInd Amdnt and different parts
of the Ist Amdnt, respectively). Can the state pass a law requiring
that the employer permit any of the three?
As a mental exercise, take every argument that will be made on both
sides of the Oklahoma case, and apply it to the Koran and LP platform.
--
Charles Curley /"\ ASCII Ribbon Campaign
Looking for fine software \ / Respect for open standards
and/or writing? X No HTML/RTF in email
http://www.charlescurley.com / \ No M$ Word docs in email
Key fingerprint = CE5C 6645 A45A 64E4 94C0 809C FFF6 4C48 4ECD DFDB
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