Guns in the Parking Lot:

My wife, who reads the blog though she has never commented here, asks for fewer gun-related stories, as she finds them somewhat dull. I shall certainly try, in case others among you feel the same way; but I do have to reply to this editorial that JHD sent me. It's from the NY Times, which has never understood the issue, has no interest in understanding the issue, and is simply throwing around assertions without backing.

The occasion for the editorial is an NRA-proposed boycott of certain oil companies, because those companies refuse to allow workers to keep firearms locked in their cars if those cars are parked on company property.

ConocoPhillips ran afoul of the N.R.A. when it joined in a challenge to a law passed by the Oklahoma Legislature that would strip businesses of their gun-control rights on company property. The state gun lobby jumped on the issue after a dozen workers were fired at a paper mill for violating a ban on keeping guns in their cars parked in company lots.
In the Times' mind, the "right" at work here is "the right to gun control," which is a right that may be expressed by individuals and even corporations, and which ought to be enforced by the courts:
Responsible corporations sued, pointing out that they are liable for workers' safety. They cited estimates that more than a dozen killings occur each week in the nation's workplaces because angry employees are able to put their hands on guns.
There are several things to be said.

1) There are no "gun-control rights" pertaining to corporations, or individuals. What is at issue here is not the "right" to control guns, but the private property right to limit access to what one owns.

It is the right, that is, to put up a sign that says "no guns here," and have someone prosecuted for trespass if he ignores the sign; or fire him, if he is an employee, because he has committed the crime of trespass.

The right to keep and bear arms, however, actually is a right: a Constitutional right, one that is recognized by the Justice Department, and what is now almost the totality of the scholarship, as a right pertaining to individuals. The Senate bill that the Times is on about also recognizes that nature, in quite strong language, which the Geek quotes at length.

When private property rights come into opposition with basic Constitutional rights, it is the private property right that normally gives way. By "gives way," I don't mean that it is voided, but that it has to accept some restrictions. The usual one in cases of this sort is the notion that public accomodations (which include gas stations) have fewer such rights than private homes.

If someone wished to assert this type of private property right over any other sort of Constitutional or civil right, the Times would be foresquare in the opposition. They would never endure a corporation putting up a sign that violated first amendment rights -- e.g., "No Episcopalians." They would never endure a violation of fourteenth amendment rights -- e.g., "No immigrants." They would probably not support even a violation of "freedom of association" rights that are not otherwise Constitutionally protected: "No Communists," or "No gays."

An individual is free not to invite Episcopalians to his house, but he cannot refuse to employ them if he has a business.

2) I don't have access to the "estimates" that are on offer here, so I can't analyze them. I'm sure someone will in the fullness of time.

However, it strikes me that they are somewhat irrelevant to the debate at hand. An employee who has decided to shoot his fellow employees is not going to be restrained by a sign that says "No guns," if he is not restrained by the laws against murder, assault, carrying weapons of any sort in any place with the intent to committ illegal violence, or any of the other laws that apply.

All of that is already illegal. It is subject to both criminal punishments, and civil punishments in the case that harm is caused.

The only thing that is at issue is whether a corporation may insist that employees contract away a Constitutional right. May I write in my contracts that employees agree not to practice a certain faith? If they are Muslims, can I legally require them not to practice their daily prayers on company property, or company time?

What if one fears that "people who practice Islam," like "people who carry guns," are likely to harm others around them? The evidence is against both propositions, but the perception may be real enough. Is that perception enough to override the Constitution? Should it be?

I think the Times would argue that it is not, and should not be, in any case except this one.

3) The civil liability issue for the corporations is a real issue, but it can't be resolved in this way. The argument is that corporations are liable if someone is shot on their property, and therefore they have to be able to protect people on their property from being shot. Fair enough; but as pointed out above, a sign that says "No guns" is no protection whatsoever from crimes of this type.

The legal argument they are imagining is: "We have an obligation to protect people on our property from violence of this type. We obviously can't afford to put armed security everywhere, which is might really stop this sort of violence. However, we did put up a sign that said 'no guns,' so it's not our fault." That prevents no one from being shot, however; it's only to escape the corporation having to pay out legal damages.

At least as compelling a legal argument would be, "We have an obligation to protect people on our property from violence of this type. We obviously can't afford to put armed security everywhere, which might really stop this sort of violence. However, we do permit our employees the access to the tools they need to defend themselves."

That should be just as likely to avoid damages as the first argument. In addition, it might actually prevent deaths from workplace shootings, because it means that someone might be in the position to prevent it.

The Times continues:
Most Americans do not believe that the right to bear arms applies to an employer's parking lot, to a church or to many of the other places where politicians have declared open season because they fear the out-of-control gun movement.
I'm not sure what their evidence is for this assertion, but it is of course perfectly irrelevant even if it were true. I've seen polling data suggesting that "most Americans" believe that homosexuality should be illegal, but that doesn't mean it should in fact be illegal.

The entire reason for having Constitutional rights in a democracy is to protect rights from popular encroachment. Of course it is rights that are not popular which are in most danger.

They are still rights, written in the Constitution, and they must be protected. They ought to be protected by the government, which is required by its own Constitution to do so.

No comments: