Lawyer in Heller Gun Case Says Government Should Not Pit Property Rights Against Gun Ownership

John Kramer
John Kramer · June 15, 2009

Arlington, Va.—An attorney who litigated the landmark D.C. gun ban case says the Arizona Legislature is considering two bills that would trample property rights in a misguided attempt to promote gun ownership.  House Bill 2474 would require businesses to allow employees and patrons to bring firearms into parking areas as long as the guns stayed locked in their vehicles, and House Bill 2171 would require restaurants that derive at least 50 percent of their revenue from food sales to allow people who are not drinking alcohol to bring their guns onto the premises.  HB 2474 would also allow lawsuits against businesses that violate the law if anyone is injured or killed because a gun owner could not access a weapon.

“You can be a strong advocate of gun rights and still respect private property owners’ right to choose whether someone can bring a gun onto their property,” said Clark Neily, senior attorney at the Institute for Justice and one of the three lawyers who litigated District of Columbia v. Heller, the historic case in which the U.S. Supreme Court held for the first time that the Second Amendment protects an individual’s right to keep and bear arms.  The Institute for Justice, which successfully defended Mesa brake shop owner Randy Bailey from eminent domain abuse, is the nation’s leading public interest law firm protecting private property rights.  “The government should not put gun rights on a collision course with property rights,” Neily urged.

Like every other constitutional right, the right to keep and bear arms is a restriction on government power, not private conduct.  Gun rights advocates typically support the idea of limited government and personal freedom, so it is particularly disappointing to see them supporting laws whose basic premise is that the government may take away from citizens the right to decide who may come onto their private property and under what conditions.

Neily said, “Business owners, not government bureaucrats, should be the ones who decide whether to allow customers to be armed, and they should have the power to make that decision on a case-by-case basis.  But HB 2171 and HB 2474 rob property owners of their right to exercise discretion and make difficult choices involving their livelihoods and the safety of their patrons and staff.  Even if gun owners do not like the consequences, business owners should be able to establish the conditions upon which people enter and use their property.  Just because the government has ignored that principle in other settings—smoking bans, for example—certainly does not excuse people who know better from sanctioning further violations of private property rights.  If gun owners feel unsafe without their weapons—or if customers feel safer in establishments that allow customers to be armed—then they can choose to patronize businesses that cater to those preferences.  But it should be a matter of choice, not government fiat.”

Similar bills have cropped up in other states, including Florida, where the law now requires private employers to allow anyone with a concealed-carry permit to keep his gun locked in his car in the company parking lot.  The proliferation of this type of legislation represents a real threat to property rights and autonomy.

“The Constitution is a charter of liberty,” said Chip Mellor, the Institute for Justice’s president and general counsel.  “Gun owners must respect the property rights of others and not turn to big government for help when they dislike the choices other people make about how to run their businesses.”