Many people see property rights from a limited understanding. Take for instance a couple questions that come up regularly:
Do “no gun” signs hold force of law?
Can my landlord prohibit guns?
We dive into those specific topics in their respective posts but I want to take a 30,000 foot view at property rights and guns in general.
As a property owner (property can be personal, physical, real estate, intellectual, etc) you would naturally be resistant against anyone telling you what you can and cannot do on, with, or about your property. Right? So why is it that when a private real-property owner puts up a sign with conditions for entry, such as a no guns sign, we suddenly flip the switch and want to tell them what they can and can’t do on their own property.
“But, my it’s my Second Amendment right!”
The US Constitution places restrictions on the Government, not the People. Private persons, corporations, etc cannot violate the constitution, however they can violate federal, state and local laws [1]. Yes, you do have a right to bear arms and the government can’t take that away without due process, however, private persons can do so without violating the US Constitution.
When we declared our independence from the British Empire we clearly defined that the People and the Government are two distinct and separate bodies.
that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.
Declaration of Independence, 1776
Clearly differentiating the People from the Government, the founders sought to only allow the government certain powers. In forming the US Constitution, and Bill of Rights, they outlined the government’s powers as finite, limited, and enumerated.
At the time that the Constitution was ratified, the founders also wrote 12 amendments, though only 10 were ratified at the time, which became the Bill of Rights. These amendments to the US Constitution were critical to even getting the US Constitution passed and ratified by the states. The people were weary of establishing a new government that could potentially infringe on their God given rights. Having just caught a war to defend their rights, they outlined such protections in the Bill of Rights. Limiting the government’s scope to only the things specifically listed, and enumerating certain powers as off limits.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Preamble to the Bill of Rights, 1789
This guaranteed that the Government clearly could not infringe upon the People’s rights. They even added the 9th and 10th amendments asserting that the people have more rights than the ones mentioned, and that the powers not granted the to federal Government, or prohibited to the States Governments are reserved for the People.
Nothing in the Constitution reads to prohibit private property owners from establishing rules regarding their own property. In fact the founders believed just the opposite. John Locke, the philosophical father of the American Revolution and the inspiration for Thomas Jefferson when he drafted the Declaration of Independence, laid out the roots of freedom simply: “Lives, Liberties, and Estates, which I call by the general Name, Property”[2]. Private property rights are the foundation of all other rights, which is why they specifically protected property rights in the 4th, 5th, and 14th amendments. Arms (Guns, weapons, etc.) are property. All rights are essentially the right to something we possess or something another possesses (that is rightfully ours). All rights, at their core, are rights to real property, tangible property, intellectual property, etc.
“Much moral and legal confusion would be avoided if we understood that all of our rights — all of the things to which we are “entitled” — can be reduced to property.”
Roger Pilon (2017)[3]
The right for you to carry your gun, cannot philosophically void the right of another to their property. Rather, you have no right to take their property (to be on/in their real property) just as they have no right to take your property (arms/weapons). Rights of one person cannot encroach on the rights of another. People cannot use their property in ways that unjustly damage, infringe or deprive another of their property. If one hit another’s car with their car, the victim has the right to have the damages repaired. One steals property from another, the victim has the right to be made whole again and have the property returned or repaid. Etc etc.
This is the foundational concept of freedom, that we are to be secure in our properties, and that the Government has no right to our property, except through due process of law and court.
Enter, contract law, where one gives up something of theirs in order to gain something else. A lease is a contract. One agrees to certain terms in exchange for permission to be present on and to reside in someone else’s property. Terms include, rent, length of the lease, community standards, code of conduct arbitration, etc. Without adherence to their customs, rules, and code of conduct, one violates the terms of the agreement and infringes upon the others rights. Likewise one cannot come to your property and tell you what to allow or not allow on it; unless free use damages another’s property, then, through rule of law and the courts, restitution can be granted. In the case of a lease, we have the Tort (civil crime) of breach of contract, which likely results in monetary loss and eviction. On other private property we have the crime of trespassing, punishable by fines and jail time. While they have no right to remove someones property (firearm) from someones possession, they do have every right to revoke their permission for one to be present on their property.
In conclusion, yes private property owners can ban guns on their own property. Just as we are the rulers of our castles, so they are rulers of theirs and that is a good thing. You have the right to bear arms, you don’t have the right to be on anyone else’s property, only merely their permission.
*This is provided as a Legal Information Resource and should not be treated as legal advice.
[1] Moose Lodge no. 107 v. Irvis, 407 U.S. 163 (1972)
[2] John Locke, Second Treatise of Civil Government (1690).
[3] Roger Pilon, Cato Handbook for Policymakers, Property Rights and the Constitution. Retrieved on Sept 29th, 2020 from https://www.cato.org/cato-handbook-policymakers/cato-handbook-policy-makers-8th-edition-2017/property-rights-constitution