Since nobody here posted a good analysis of takings law as it might pertain
to a private establishment exercising its "right to exclude" with respect to
people carrying pistols under a state permit, I undertook the research
myself. My first post to a local gun-rights email list is below; a followup
post will follow soon.
--
Bob Woolley
St. Paul, MN
[EMAIL PROTECTED]
"War is an ugly thing, but not the ugliest of things. The decayed and
degraded state of moral and patriotic feeling, which thinks that nothing is
worth war, is much worse. The person who has nothing for which he is willing
to fight, nothing which is more important than his own personal safety, is a
miserable creature and has no chance of being free unless made and kept so
by the exertions of better men than himself."
-- John Stuart Mill
------ Forwarded Message
From: Robert Woolley <[EMAIL PROTECTED]>
Date: Sun, 07 Aug 2005 15:21:17 -0500
To: <[EMAIL PROTECTED]>
Subject: churches lawsuit
Frankly, I don't care much whether the churches win on their
religious-rights count. It just won't affect me much. It has no potential
for expanding into a prohibition broader than religious institutions, which
I don't frequent.
The more potentially dangerous count (assuming it gets introduced into the
suit, though it hasn't been yet) is the "takings" argument. It's more
potentially dangerous because it's presumably applicable to any private
entity, not just churches. The same reasoning could apply to any business.
Two days ago I knew next to nothing about "takings" law. But I've been
educating myself. I'm about halfway through what I think I need to read to
make an informed evaluation of the merits. My tentative conclusion at this
point is that it's a clear loser for them. And I'm trying my best not to be
biased--that is, I do *not* want wishful thinking to taint my assessment,
because if this is a serious threat to the MCPPA, I want to take it
seriously, and not foolishly brush it off.
But I honestly, objectively (as objective as I can cause myself to be,
anyway), think they cannot prevail. The explanation of takings case law the
churches put forward in the 2003 Ramsey County suit papers is just plain
wrong. I've read it again several times, and I can't tell whether it is
cleverly and knowingly wrong, or a sincere misunderstanding--but either way,
it's wrong.
I'll try to make this short. There are basically two forms of governmental
takings: per se, and regulatory. "Per se" is the category that requires
compensation no matter how trivial the actual monetary loss. With regulatory
takings (e.g., can't use your land in some specific ways because of the need
to protect some greater societal goal), it's a case-by-case adjudication;
there may be no compensation owed at all, or a great deal, depending on a
bunch of factors that a court has to weigh.
I think it's obvious that the churches realize that if the situation is
analyzed as a regulatory taking, they won't be entitled to anything, because
the actual harm is so minute. They're already inviting the public onto their
lands and into their buildings for some purposes (e.g., worship, or maybe an
AA meeting in the basement, or a wedding, or whatever). The law doesn't
require them to allow gun carriers in for their own purposes--just for the
limited purposes for which all comers are invited. So the additional burden
on the churches is miniscule.
Therefore, the churches are relying solely on the "per se" takings argument.
The classic example of a "per se" taking is a Supreme Court case from
Hawaii. Some private developers had turned a private pond into a marina. The
Army Corps of Engineers said that because the pond (now marina) was now
connected to the ocean, when it hadn't been before, it was now part of US
"navigable waters" and had to be fully open to the public, not reserved for
paying boat tenants. Declaring private property to open to the public, with
no right to exclude anybody, is a "per se" taking. If the Army sets up a
command post on your front yard, it's a "per se" taking--a physical
invasion.
But the churches are literally arguing that the harm they are suffering--the
loss of the ability to exclude tenants, guests, and churchgoers on the basis
of carrying a pistol--is comparable to those. It just isn't. There is
nothing I have found so far (though I'm not done looking) anywhere near this
level of triviality that has been found to be a "per se" taking. The
churches are actually claiming that this is a physical invasion of their
property by the state--and that's just a preposterous argument, in light of
the "physical invasion" cases, which really do require an actual physical
intrusion.
If this is a taking at all, it's plainly a "regulatory" taking, very much
like laws that forbid landlords from refusing to rent to racial minorities.
And for such regulations, courts have uniformly held that there is no
compensation due.
In California, the state supreme court interpreted the state constitution to
require shopping malls to allow people in whose purpose wasn't shopping, but
distributing political leaflets. The US supreme court said that California
was free to require this, and it didn't violate the US constitution. Yes,
there was a slight loss of the right to exclude--which is unquestionably an
important part of property rights--but it wasn't of the nature that
constitutes a "taking" for purposes of the 5th and 14th amendments. That's
clearly much closer to what we have here than are the "per se" or physical
invasion cases.
If I were inclined to bad puns, I'd say the churches haven't got a prayer.
I should note, finally, that I'm not thrilled about the state of takings
law. Being a good libertarian, I'm inclined to far higher levels of
protection of private property rights. As a matter of public policy, I think
that churches and businesses and homeowners should all be able to exclude
anybody they want to on any grounds that they choose. But here I'm trying to
analyze what the law *is*, not what I think it ought to be.
For those who, like me, are way too interested in the subject, I'm pasting
below three excerpts from Supreme Court cases that I think make the points.
On their face, the state and local laws at issue here merely regulate
petitioners' use of their land by regulating the relationship between
landlord and tenant. "This Court has consistently affirmed that States have
broad power to regulate housing conditions in general and the
landlord-tenant relationship *529 in particular without paying compensation
for all economic injuries that such regulation entails." Loretto, 458 U.S.,
at 440, 102 S.Ct., at 3178. See also Florida Power, supra, 480 U.S., at 252,
107 S.Ct., at 1112 ("statutes regulating the economic relations of landlords
and tenants are not per se takings"). When a landowner decides to rent his
land to tenants, the government may place ceilings on the rents the
landowner can charge, see, e.g., Pennell, supra, 485 U.S., at 12, n. 6, 108
S.Ct., at 857- 858, n. 6, or require the landowner to accept tenants he does
not like, see, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S.
241, 261, 85 S.Ct. 348, 359, 13 L.Ed.2d 258 (1964), without automatically
having to pay compensation. See also PruneYard Shopping Center v. Robins,
447 U.S. 74, 82-84, 100 S.Ct. 2035, 2041-2042, 64 L.Ed.2d 741 (1980). Such
forms of regulation are analyzed by engaging in the "essentially ad hoc,
factual inquiries" necessary to determine whether a regulatory taking has
occurred. Kaiser Aetna, supra, 444 U.S., at 175, 100 S.Ct., at 390. In the
words of Justice Holmes, "while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking."
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67
L.Ed. 322 (1922).
Yee v. City of Escondido, Cal.
503 U.S. 519, 528-9 (1992)
It is true that one of the essential sticks in the bundle of property rights
is the right to exclude others. Kaiser Aetna v. United States, 444 U.S. 164,
179-180, 100 S.Ct. 383, 392-393, 62 L.Ed.2d 332 (1979). And here there has
literally been a "taking" of that right to the extent that the California
Supreme Court has interpreted the State Constitution to entitle its citizens
to exercise free expression and petition rights on shopping center property.
But it is well established that "not every destruction or injury to property
by governmental action has been held to be a 'taking' in the constitutional
sense." Armstrong v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563, 1568, 4
L.Ed.2d 1554 (1960). Rather, the determination whether a state law
unlawfully infringes a landowner's property in *83 violation of the Taking
Clause requires an examination of whether the restriction on private
property "forc[es] some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole." Id., at 49,
80 S.Ct., at 1569. This **2042 examination entails inquiry into such factors
as the character of the governmental action, its economic impact, and its
interference with reasonable investment-backed expectations. Kaiser Aetna v.
United States, supra, at 175, 100 S.Ct., at 390. When "regulation goes too
far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922).
...
Here the requirement that appellants permit appellees to exercise state-
protected rights of free expression and petition on shopping center property
clearly does not amount to an unconstitutional infringement of appellants'
property rights under the Taking Clause. There is nothing to suggest that
preventing appellants from prohibiting this sort of activity will
unreasonably impair the value or use of their property as a shopping center.
The PruneYard is a large commercial complex that covers several city blocks,
contains numerous separate business establishments, and is open to the
public at large. The decision of the California Supreme Court makes it clear
that the PruneYard may restrict expressive activity by adopting time, place,
and manner regulations that will minimize any interference with its
commercial functions. Appellees were orderly, and they limited their
activity to the *84 common areas of the shopping center. In these
circumstances, the fact that they may have "physically invaded" appellants'
property cannot be viewed as determinative.
This case is quite different from Kaiser Aetna v. United States, supra.
Kaiser Aetna was a case in which the owners of a private pond had invested
substantial amounts of money in dredging the pond, developing it into an
exclusive marina, and building a surrounding marina community. The marina
was open only to fee-paying members, and the fees were paid in part to
"maintain the privacy and security of the pond." Id., at 168, 100 S.Ct., at
386. The Federal Government sought to compel free public use of the private
marina on the ground that the marina became subject to the federal
navigational servitude because the owners had dredged a channel connecting
it to "navigable water."
The Government's attempt to create a public right of access to the improved
pond interfered with Kaiser Aetna's "reasonable investment backed
expectations." We held that it went "so far beyond ordinary regulation or
improvement for navigation as to amount to a taking. . . . " Id., at 178,
100 S.Ct., at 392. Nor as a general proposition is the United States, as
opposed to the several States, possessed of residual authority that enables
it to define "property" in the first instance. A State is, of course, bound
by the Just Compensation Clause of the Fifth Amendment, Chicago, B. & Q. R.
Co. v. Chicago, 166 U.S. 226, 233, 236-237, 17 S.Ct. 581, 584-585, 41 L.Ed.
979 (1897), but here appellants have failed to demonstrate that the "right
to exclude others" is so essential to the use or economic value of their
property that the state-authorized limitation of it amounted to a "taking."
PruneYard Shopping Center v. Robins
447 U.S. 74, 82-84 (1980)
Ownership does not always mean absolute dominion. The more an owner, for his
advantage, opens up his property for use by the public in general, the more
do his rights become circumscribed by the statutory and constitutional
rights of those who use it. Cf. Republic Aviation Corp. v. N.L.R.B., 324
U.S. 793, 65 S.Ct. 982, 985, 987, note 8, 157 A.L.R. 1081.
Marsh v. State of Ala.
326 U.S. 501, 506 (1946)
--
Bob Woolley
St. Paul, MN
[EMAIL PROTECTED]
"Revenge is like serving cold cuts."
-- Tony Soprano
------ End of Forwarded Message
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