Property Rights and Armed Self Defense

By Clay Moultrie

The recent story of two students at Gonzaga University has renewed debate withing the gun owning community of how property rights relate the the 2nd Amendment. I’d like to share a few thoughts and observations and would like your input. Property rights are a fundamental right. Most of us would agree that when someone is in our home, they are expected to respect us and our property. If a threatening stranger tried to enter my home with a firearm, I wouldn’t allow it. If a guest tried to view objectionable content in my home (things covered under the 1st Amendment, but that I or my family found offensive), I would not allow it. While those individuals have a Constitutional right to possess a firearm and view that material, my property rights within my own home allow me to restrict those activities . . .

We also need to consider the legal method for restricting them (I’m not a lawyer, this is my understanding of the laws and could be wrong, please educate me if I am incorrect). Generally speaking, there won’t be a law that dictates that a property owner would have the right to restrict viewing objectionable media by anyone on the property.

My ability to restrict people’s rights on my property is a result of my right to restrict their access to my property. It may not be illegal for a guest to view say, pornography, against my will on my property, but it is illegal for the same person to be on my property as a trespasser after I’ve asked them to leave. So really, my ability to “restrict” others RIGHTS on my property is derived from my ability to control their access to the property. A simple if/then statement from a land owner to a guest explains it well.

“If you do this, then I will ask you to leave (Failure to leave will be considered trespassing, which is a crime).”

Ultimately, it’s the guest’s choice. I’m not really restricting any right because they can simply leave my property and continue doing whatever it is they wish.

For the sake of this post, let’s say that you all agree with me thus far. The next question, and the question where some of our opinions may start to differ, is how these property rights apply when the property is leased to another person.

When a land owner leases a home (I’ll use the word home as a space functioning as a lessee’s primary residence) to a person, should that land owner be able to restrict the possession of firearms within that home? My answer to this question is a very firm NO. I don’t believe that a land owner should be able to restrict the fundamental human right to self defense within any space that serves as a home.

Would it be acceptable for a landlord to to specify that the only religion that can be practiced within the home is Christianity?
Would it be acceptable for a landlord to specify that no religions can be practiced in the home?
Would it be acceptable for a landlord to restrict the possession of bibles in the home?
Would it be acceptable for a landlord to specify that only Fox News, or CNN be watched in the home?
Would it be acceptable for a landlord to require that all letters and emails written in the home be shown to him before you are allowed to send it?
Would it be acceptable for a landlord to specify that any absentee ballots sent from the home be votes for Republican candidates only?
Would it be acceptable for a landlord to require a list of all usernames and passwords for all of your online accounts you intend to access while in the home?

Based on a simple view of property rights, you could argue that with each of these is as simple as an if/then statement from the land owner, and that all of the above would be acceptable. You could argue that it is still a choice the lessee makes. “If you do this, then I will ask you to leave.”

Based on that simplified view of property rights, 32% of the households in the US would be second-class citizenss because they aren’t land owners (or more correctly, are not living on land that they own), and therefore not truly entitled to their rights as guaranteed by the Constitution.

Most conservatives are concerned about a move towards socialism, but is this simplified view of property rights as it pertains to the leasing of homes a step toward feudalism (where non-landowners are at the mercy of land owners)?

While I’m a firm believer in property rights, I believe that there should be laws specifying that when a home is leased (a primary place of residence), certain rights cannot be restricted based on the desires of the land owner. Ultimately, if you cannot exercise your Constitutional right to armed self defense within your home, you don’t have that right. No government, corporation, or individual should be able to restrict those rights within your home.

Clay Moultrie owns SHTFGear.com

comments

  1. avatar Andy says:

    While I see that PA is not shaded, all the provision of the uniform act are already covered in the PA landlord tenant act.

  2. avatar Aidan says:

    I agree with your points; what do say about property rights in the work place?

    1. avatar Sheenagh says:

      In the work place, you are not leasing or owning the property. Any of an employee’s personal belongings may be restricted except when they relate to reasonable accommodation for disabilities. If you place personal items in your desk or locker and lock it, your employer has the right to open those areas to inspect contents. The desk and locker belong to the employer and he retains the property rights. Most employers however will ask to have access in the employee’s presence. I would not work for someone who didn’t ask and allow me to be there!

  3. avatar Adam says:

    I think it boils down to this: A landowner has the right to enforce what ever policies he wants on his land. But when that land owner leases the property he has no right to enforce any policy against a legal action so long as that action is not detrimental to the property.

    For example a land owner could enforce a policy banning guns from his property. He however could not enforce the same policy if he is leasing me the property since my actions are not illegal. If I was to then go and set up a range in the back yard and start shooting there he could then kick me off the property for hurting the property value (theoretically) even though my actions may be legal (depending on jurisdiction).

    Same thing with parties, cars, animals, etc. As long as my actions are legal and not harmful to the property (which is where the animal case becomes a matter of approval in most rentals) then they can not and should not be able to keep me from doing it. If at some point it becomes clear they do not approve of my legal actions then they are welcome to not renew the lease.

    1. avatar mark_anthony_78 says:

      Great minds think alike.. I was typing my response (below yours) at the same time and we have similar ideas.

    2. avatar Marcus says:

      You have lost sight of an important point in your argument and that is that the property is leased, not owned by the occupant.
      The landlord owns and controls that property and is allowing by mutual agreement and contract the outside individual to inhabit it–with certain, defined restrictions. I would never rent or lease a property in which I cannot own tools of self defense.

      1. Ah, yes, but… It boils down to liability. If I own property and someone visiting my property trips over a garden hose, I am liable. If I own property and lease it to you and someone trips over your garden hose, you’re the who assumes the liability.

        The lessee assumes both control over and therefore the liability of the property.

        INAL, BTW.

        1. avatar Paladin says:

          It would really depend on the terms of the contract, if the contract stipulates that the lessee is liable for accidents on the property then they are. This is why it’s crucial to know what you are signing before you sign it.

          As much as we may freak out over modern feudalism, it’s not likely to happen. If a landlord imposes undue restrictions on what you may or may not do on their property, find another landlord, or make an appeal to the public. A good public shaming has a tendency to put people back in line. No deal takes place in a vacuum, there are always other options.

  4. avatar mark_anthony_78 says:

    Tricky topic that definitely comes up a lot in the discussions here…

    I agree with you that certain rights should not or cannot be given away in a lease.

    I think the limits of what CAN be restricted should be items/activities that by their mere presence or casual (otherwise lawful) use may cause property damage. By that, I mean things like “no pets, no cooking with charcoal grills inside or on wooden decks, etc.” As a homeowner I accept the risk of my dog chewing on the furniture or a grill burning my deck down, but as a renter I’d have to minimize the actual property owner’s risk.

    Now, I know the first argument would be “well shooting a gun can cause property damage.” OK, so put in the lease “no USE of firearms is permitted” as opposed to no OWNERSHIP of firearms is permitted. Most town have discharge ordinances anyway, so lease or not, if you shoot a gun inside you’re going to have a legal problem.

  5. avatar Peter says:

    My property, my choice. Don’t like it? Don’t agree to lease from that particular person. Private property rights either exist or they don’t. “I believe that there should be laws specifying that when a home is leased (a primary place of residence), certain rights cannot be restricted based on the desires of the land owner” — if the government can determine your rental terms, what can’t they determine?

    It should be the same way with regarding who a private employer chooses to employ and do business with.

    1. avatar Paul W says:

      So people in NYC are boned since they’re all rentals?

      The place I went to college, there was one corporation that owned about 85-90% of the rental properties. Should they be able to stipulate my religious practices, firearms ownership and sexual activity because they have a functional monopoly?

      1. avatar cmiz says:

        People living in NYC are boned for many other reasons beyond the rental issue…

      2. avatar uncommon_sense says:

        You have just touched on the core reason that property rights cannot be unlimited.

        I posted an example of how this is BAD about three months ago. Imagine if one person purchased a huge tract of land along an interstate highway and he/she owns all the gas stations for 100 miles in either direction. At some point someone will have to refill their gas tank. Imagine their surprise if the owner requires sex from every visitor as a condition of entering the gas station property before filling up their gas tank.

        This is okay because the visitors are free to “take it or leave it”, right? But of course, as it turns out, they are not free to “take it or leave it” because they are out of gas and do not have enough gas to get beyond the landowner’s tract of land. But they are free to just walk 100 miles, right? And it’s not the landowner’s fault that the motorist didn’t make sure to have enough gasoline to drive past the landowner’s tract of land.

        This simple example makes it clear that there must be limits on what a property owner can “demand as conditions to enter their land”. Any demands that have nothing to do with the ownership or use of the property have no place in our society. (For a more complete explanation, see my post near the bottom of this thread.)

    2. avatar WayneMHK says:

      Disagree. There are certain things that, as a property owner, you give up when you choose to lease property to someone else, particularly as a place of residence. You wouldn’t argue that, as a property owner, I have the right to not lease to minorities, would you? Of course not. There are laws against that.

      Does this idea extend to the ownership of firearms, a right guaranteed by the 2A? I’m not sure, but I probably wouldn’t tempt a lawsuit by telling a tenant they couldn’t have them, but that’s me.

      1. avatar Peter says:

        “You wouldn’t argue that, as a property owner, I have the right to not lease to minorities,would you? Of course not. There are laws against that.”

        Yes, of course, I would argue that. And the right not to hire anyone, and the right to not do business with anyone. What gives the government the right to compel or coerce a private entity to rent to, hire, or trade with anyone?

        Just because there are laws against it doesnt mean the laws are just or constitutional – just like the ACA and numerous gun control acts

    3. avatar int19h says:

      If you think that your property is fully yours to do as you see fit, you’re wrong – this was never the case in US, even back when the country was founded. Look up “fee simple” on Wikipedia.

  6. avatar Kerry says:

    If it is MY PROPERTY then I have the right to set the rules. I don’t want you smoking in my house I rent to you, and you think I should give up my property rights so you can stink up the house and potentially cause a fire? Maybe I don’t want a religion in there that kills chickens for sacrifice. I know these are kind of extremes but sorry, if you don’t like the terms of my lease agreement, go rent somewhere else. So long as I am the owner of the property, its my rules, period.

    1. avatar Old Ben turning in grave says:

      Yes, I know it’s an extreme position, but I have agree with you. So…

      “Would it be acceptable for a landlord to to specify that the only religion that can be practiced within the home is Christianity?
      Would it be acceptable for a landlord to specify that no religions can be practiced in the home?
      Would it be acceptable for a landlord to restrict the possession of bibles in the home?
      Would it be acceptable for a landlord to specify that only Fox News, or CNN be watched in the home?
      Would it be acceptable for a landlord to require that all letters and emails written in the home be shown to him before you are allowed to send it?
      Would it be acceptable for a landlord to specify that any absentee ballots sent from the home be votes for Republican candidates only?
      Would it be acceptable for a landlord to require a list of all usernames and passwords for all of your online accounts you intend to access while in the home?”

      Yes, yes, yes, yes, yes, yes, yes, etc. I may find these positions personally offensive. I would avoid someone like the plague if they actually imposed these rules (after I tried to talk them out of the position, assuming I cared enough about the person to do so).

      But I would argue that it is fundamentally wrong to force someone to support anything that they find morally objectionable. If, for instance, they felt that it was absolutely morally wrong to vote for a republican, and they do not want to associate in any way with those who do, that’s their right. Anything else violates basic freedom of association, without which people cannot be genuinely free. Now, if such a person refused to rent his land or dwelling to anyone who is not like-minded, and makes that clear up front, I don’t see the issue. As long as the rules are crystal clear up front, it’s a free exchange of value, freely entered, between consenting adults. As such, ain’t nobody’s business if they do.

      If it pisses you off, live somewhere else. If enough people do this, the bigot won’t be able to fill his apartment building, and he will either have to change his rules or go broke. Problem solved. If he can fill his building with like-minded people, let them stew in their own bigotry, go somewhere else, and enjoy not being around them. But if you employ naked force (in this case, force of law) to impose your will on the property owner, you are a tyrant.

      If you tell them they can’t participate in the free market if they won’t agree to support certain ideas or practices, that is a statist position. Not an extreme one as statist positions go, but statist still.

      1. avatar Paul W says:

        That works when there’s lots of different owners to choose from, not so much when it’s a near monopoly on housing.

        1. avatar Old Ben turning in grave says:

          Absolutely, agree with you 100%. In the extreme case in which one or a few people owned all the residential property in the US, then it would be completely unworkable. However, since it’s not that way, I don’t see any strong reason to go to limiting fundamental private property freedoms.

      2. avatar Mark N. says:

        Just like restaurants and hotels, a landlord is prohibited by federal law from discrimination against tenants on the basis of prohibited classifications (e.g., sex race, religion, national origin). So you’ve already lost this argument all of you private property absolutists. And that’s the end of that argument.

        1. avatar Old Ben turning in grave says:

          It’s the state of affairs under current law, freely granted. However, to say “that’s the end of the argument” because of laws that are currently on the books is also a statist position, and a much more extreme one than allowing some restrictions on free market exchanges.

        2. avatar Paladin says:

          Just because “the law is the law” doesn’t mean it’s right. Anyone who’s been reading here long enough should realize that. How often do we go on tirades about immoral firearms laws? Simply being law is no reason to support it, glorify it or assume it will always be so.

      3. avatar Ardent says:

        Never mind that such a lease agreement would be completely unenforceable due to it’s being an unconscionable contract it would also constitute a written confession to a whole host of crimes. A landlord who wrote such a lease would not only find that he had no means by which to enforce it, but would be lucky to avoid a prison term.

        Property rights are well understood legally to change dramatically as soon as it’s not truly ‘private’ property anymore. That is, the moment there is commercial activity on the property new limits on the rights of the property owner are emplaced and new rules apply.

        When the commercial activity is leasing the property to someone else very serious limits to the property owners rights are invoked. Many of these apply from the outset as they regard to whom the property may or may not be leased.

        An anecdotal example: I once saw an attorney laughing out loud at a land lord who had written into his lease agreement that the tenant couldn’t use or possess alcohol on the premises. He was laughing because the very idea that otherwise lawful behavior could be so restricted by a lease agreement struck him as absurd.

        Given that there isn’t a constitutionally recognized right to drink alcohol, what does this tell us about restricting the 2a when leasing a property that will serve as someone’s residence?

        A property owner does and ought to retain considerable authority over the occupation and use of his land. . . right up to the point at which he decides to use the land to enter into commerce. That decision, freely made, does and ought to transfer most of the authority to the lessee. The lessee becomes the person who’s rights are protected on the property in question while the lessor has the option of exercising such rights where ever it is that he resides.

        If you don’t like it don’t rent out your land.

        As for the college students so much in the news. . . they prevail specifically because the universities position is counter to their civil rights in general and their property rights as lessees. Any verbiage preventing them from lawful exercise of their rights that is found in the lease agreement is unenforceable on it’s face.

        The larger question is of association; can the university expel them for the exercise of their rights. The property rights question is largely settled on the side of the tenant and has been for a very long time. I’ll be most interested in seeing what sort of rulings are made regarding the university taking other action against them not related to a property rights issue. My gut is that since the association is a free act either party can terminate it at will and without cause provided that such termination doesn’t result from discrimination against a protected class. That said though, if the mere exercise of a civil right is sufficient and legal cause to dissolve an association I’m concerned about the spirit of civil rights laws in general (Imagine a college that insisted you not vote while attending).

        I hope these two will pursue the matter to it’s final conclusion and hope that they will prevail.

        1. avatar rybred says:

          ^^ THIS
          For all those people that say you can rent from someone else I say that once you enter into commerce you give up some of your absolute control. If you don’t like that, then you don’t have to rent out your property and you can keep it all to yourself…

    2. avatar Chip says:

      ^ This.

      My property, my rules. If you don’t like the terms I set forth in the lease agreement, don’t sign.

      To expand on the question… what about Companies that own? Like one of the recent examples of a School owning the dorm and leasing it to the students…. Do the property rights of the company apply the same as if they were an individual?

      And to throw yet another wrench in the works…. many states have additional rules regarding landlords when a certain number of units are involved. In my part of Florida the rules are different when you get to 20 units like in an apartment building. Should the fact I own an apartment building with 21 units limit my ownership rights?

      1. avatar Paladin says:

        Corporations are legal fictions. Everything is owned by someone or by some group of people. The issue of whether something is company owned or personally owned is moot.

  7. avatar Daniel says:

    These are good points to wonder about, some of which (religion) are already taken care of under the Federal Fair Housing Act and its Amendments. http://civilrights.findlaw.com/discrimination/housing-discrimination-faqs.html

    Beyond the specifics outlined in the above law and applicable state law, the relationship between a landlord and a tenant is largely contractual except for protections against the tenant damaging the property. In most states a landlord cannot even enter a home without permission unless the property is in imminent danger or some contractual provision is installed and agreed upon beforehand. For example, only between 9am and 6pm with 24hr prior approval.

    The importance of the contract also provides certain protections, you cannot contract for an illegal act nor can you contract away your constitutionally protected rights. Even Confidentiality Agreements, while yes you are yielding your right to speak, is information specific and the result is you forfeit the financial value of that information, nothing criminal. So you should not worry about this issue for some time unless much more major inroads on your 2A rights are eroded.

  8. avatar ThayneT says:

    In my simplified perspective, perhaps the question regarding leased property can be summed up with “your rights end where mine begin”.

    1. avatar DonS says:

      Exactly. For a residential property, the lessee acquires nearly all rights that the owner would have in his own home. The lessee generally has the right to control access to the property and to perform any activity in the residence that is legal, does not pose an undue risk of damage to the property, and does not affect the rights of neighboring residents – the owner has no control over such activities. Obvious exceptions are activities that have a reasonable risk of damage to the property (e.g. pets, removing walls, smoking), selling (and possibly subletting) the property, etc.

      Once the lessee acquires the “rights of a person in his residence”, his rights trump the actual property owner’s – the owner has assigned thoses rights to the lessee.

      The property owner’s rights end where the lessee’s begin (i.e. those rights the owner has ceded to the lessee because it’s now the lessee’s residence). If the property owner doesn’t like it, he’s certainly free to refrain from leasing his property.

      1. avatar Mark N. says:

        ^This. In many ways, except for property over which the landlord retains control 9outside walls, roof, basic plumbing and electrical, etc.) all of the landlord’s rights outside of bare legal title are transferred to the tenant for the term of the lease. The landlord has contractual (and in most states statutory) remedies for breach of the lease, which rights are limited to monetary damages and the right to regain possession.

        Let’s use another common example. Let’s say you lease a car for two years. Can the lessor tell you where and when you can operate that vehicle? Who is allowed to operate it or ride in it? What religion you may enjoy? What race you can be? Sorry, no can do. Unless the conduct is illegal (which would probably be a breach of the contractual terms of the lease), the lessor cannot come and tow the car away because you have a CCW and store a handgun in the trunk. Would any of you absolutists come to any other conclusion on nothing more than the fact that the dealership maintains bare legal title to the vehicle?

      2. avatar LongPurple says:

        +1
        The lessor may retain all pertinent property rights, but the lessee has paid for the use of the property, and is the resident of that property. As resident, he should be free to do anything the law permits him to do in his home, with no further restriction.

  9. avatar DrVino says:

    Should the landlord:
    – perform a NICS type background check? They already run credit checks.
    – be allowed to ask if prospective tennant is a gun owner?
    – be allowed to require safe storage?

    1. avatar dwb says:

      leases typically allow inspection during reasonable hours with not much more than 24 hrs notice. So not only could they require safe storage, but they could come and check.

      People think that the constitution guarantees rights. It does not. It’s a limitation on state / federal power, not a limitation on property rights. You can waive all your rights in a contract.

      1. avatar Mark N. says:

        Not true. Landlords are engaged in activities that ‘touch and concern” interstate commerce, and therefore they are specifically prohibited by Federal law (separate and apart from state or local statutes and ordinances) from discriminating against tenants based on “suspect classifications.”

        1. avatar dwb says:

          Tenants can sue for civil rights violations because of the Federal law congress passed, not because of the constitution. The constitution may grant congress the power to pass such a law, but until 1968 there was no such law, tenants were discriminated against, and tenants could not do anything about it.

          Whether interstate commerce is enough authority to allow congress to legislate in this area is another issue, some would say congress has no such authority only states do.

        2. avatar dwb says:

          and by the way, the law only says sellers/landlords cannot discriminate. HUD says buyers and renters can discriminate all they want.

    2. avatar Meridia says:

      Already not allowed to discriminate based on criminal record outside sexual offender status.

      1. avatar Jeremy says:

        That’s not true in most states (it specifically is true in California, I can’t think of any other state where it is). In fact, I know of at least one instance where a property was successfully sued for allowing a felon in that proceeded to murder another tenant.
        The only thing they must do is apply the same rule across all applicants. A property can have a rule that says no felony convictions, or even a rule that says violent crimes are a no-go but say a felony fraud is fine, but they can’t look at the records and decide to let one applicant crime in but not another with a similar crime.

  10. avatar Bova says:

    Shouldn’t it say “If you are the person who rents the property from the government, you can decide(for the most part) what is allowed and disallowed. If you are the person who rents the property from the government, but allow someone to rent it from you, you cannot decide what is allowed and disallowed.” in the article? Let’s be fair. No one really OWNS their property. Want to see what I mean? Miss a few property tax payments and watch how fast you lose that property. It is just like that renter not paying rent and the landlord throwing him out.

    If YOU own your property, why do you need to get building permits(ie. asking the government for permission to be able to do something to the house/property)?

  11. avatar Skyler says:

    So you’re saying that if I own a piece of land or a house that I have no choice about how my property is to be used? Thousands of years of property rights you’re willing to so easily toss in the trash?

    I’m sorry, but if I want to contract with someone to lease my property, it becomes their property during the lease, but I can imposes easements, and restrictions on that lease all day long before I agree to let them sign.

    Also, your graphic is a bit misleading. It implies that states not enacting a uniform law do not have the protections mentioned in the graphics.

    Personally, I think there are too many uniform laws being enacted, and I see no reason why laws regarding real property would need to be uniform.

  12. avatar dwb says:

    A lease is a contract between two grown up people for good money, what two consenting adults decide is mostly only between them. Once we get into the business of telling a landlord what they can and cannot permit on their property, then their property is no longer really theirs, we have taken a major step to socialism. While I certainly don’t like that landlords prohibit a lot of stuff, its their property, and property rights trump most other rights for me.

    For example: You landlord can inspect your property during reasonable times with sufficient notice. You don’t really have the same expectation of privacy as if you owned it. Your landlord can determine what utilities you have, which may indeed dictate what news you can watch. Within certain parameters they most certainly can screen tenants, within certain legal parameters. They can tell you not to smoke, and not to have pets. The can tell you not to burn incense [which may be fundamental to your religion].

    I had a landlord put in the lease what color curtains I had to have. You cannot be “expressive” and paint the walls purple.

    Are the tenants “second class citizens” because they are giving up something. Perhaps, but its a contract which means they are giving up something to get something (there are many days I long for the years when I only had to call the landlord to fix the plumbing and had no gardening or fix-it projects to do).

  13. avatar Kyle in CT says:

    Your point boils down to the relationship between a landlord and tenant, which in most states is spelled out in state law. You are right to state a list of rights that would not be restricted in a tenant situation, however guns are (potentially) a different issue. The reason is simply that while you are renting from a landlord, they give up their rights to unrestricted access and usage in exchange for payment. However, as the owner’s, they retain the right to limit access to anything that may cause harm to their property or impose upon them additional liability. Remember that when you are renting, despite it being your legal domicile, you are paying for the right to occupy that space, but the owner retains the right to dictate how that property is used. This is why many landlords dictate the type and number of pets that are allowed in a rental unit; they maintain an interest in ensuring the safety of their property and choose to do that by limiting pets. The difference here of course is that pets do not fall under constitutionally protected rights. However, a landlord would have the right to limit firearms on their property in the event that they could show that their presence posed a danger to the property, or imposed on them an additional liability. For example, if the gun was being used irresponsibly and caused damage to the property, they could limit access. Some places may also limit flammables in a rental, and so could limit storing powder or primers. The reality however is that the vast majority of landlords do not want to directly limit firearms in a lease because of the potential legal ramifications and resulting costs. The exception of course is state-owned as well as educational institutions which are largely “gun-free zones” by state and federal law. That is not, however, an issue of tenant law.

  14. avatar muh says:

    i don’t think a landowner should be able to put any restrictions in a contract that put the tenants life in danger. such as restricting firearms. the right to defend ones own life should always be more important then any property law.

  15. avatar J in Ga says:

    As a landlord, I’ll set whatever legal rules are necessary to protect my investment. Don’t like them? Too bad, live somewhere else. Renters think of it as a home and that’s great, landlords look at it as a business transaction with liabilties and profits.

    1. avatar Mark N. says:

      Yes, a landlord has a right to protect his investment, and has a remedy against the tenant for damages and unlawful detainer. But what does this have to do with the question presented–should a landlord be allowed to ban the possession of firearms on leased premises? If you answer is yes, please tell us how such a ban would be justified, specifically now, not just “because it would damage my investment”—-how would your investment be injured or damaged by allowing firearms?

  16. avatar Robert says:

    Ultimately, if you cannot exercise your Constitutional right to armed self defense within your home, you don’t have that right. No government, corporation, or individual should be able to restrict those rights within your home.

    What about all of your other Constitutional rights within your home? Is it OK for a private corporation or invidual to violate those under the guise of contract law?

    Because H.O.A. corporations have been restricting the 1st, 2nd, 4th, 5th, 7th, and 8th Amendment rights of home owners for decades. And all I hear from conservatives and libertarians is how H.O.A. corporations are manifestations of the free market (i.e., they’re “Free Market Alternatives To Zoning“), and that the home owner “agreed” to whatever restrictions are placed upon him by a some-document-called-a-contract. Never mind that the “consent” is usually a legal fiction known as “constructive notice”. Like it or not, courts enforce H.O.A. documents as contracts, fine print and all.

    Some H.O.A. corporations have banned gun ownership within their “communisties”, although they usually reverse their anti-gun policies when faced with bad publicity. As far as I know, there is no law or legal precedent that says H.O.A. corporations can’t ban private gun ownership, since such bans have not been challenged in court. And if you say “..but the 2nd Amendment”, you’re hopelessly naive, because private corporations — and H.O.A.s are private corporations — are not bound to respect your constitutional rights. It’s an example of

    repressive libertarianism,” where certain people who call themselves libertarians invariably side with property owners who want to limit other people’s liberties through the use of contract law. Property rights (usually held by somebody with a whole lot of economic clout) trump every other liberty. The libertarian defense of HOAs is the perfect example. The developer writes covenants and leaves. Everybody who lives there has to obey them forever, even if they lose due process of law and expressive liberties. As private corporations take over more functions of government, this position could lead to gradual elimination of constitutional liberties.

    Think of the Cheyenne “government” in season 2 of Jericho.

    If the gun-owner control lobby were smart, they would privatize gun control by encouraging H.O.A. corporations to restrict, or even ban, private firearms ownership within their jurisdictions. “Hey, there have been incidents of home owners shooting board members. You might want to do something to protect yourself…” Bloomberg’s M.A.G.I. (“Make All Guns Illegal”) group could start in anti-gun states to set precedent, and after a while, 60 million Americans could lose their gun-rights without a single law being passed. Instead of “The Road To Serfdom”, we’d get “The Privatized Toll Road To Serfdom”, which leads to the same place. But we’re supposed to believe that one is somehow preferable to the other, because, uh, “‘private corporations’ and ‘contracts’ good; government regulation of H.O.A.s bad”. And it’s usually by the same people who love to quote that “He who gives up liberty in exchange for security deserves neither”, and then tells everyone how happy he was to give up his liberty to the H.O.A. corporation in exchange for the false promises of protecting property values.

    1. avatar psmcd says:

      Great comments. HOAs are the perfect fishbowl for viewing this kind of issue. I think they’re a sort of precursor hell where owners sell just to get out, vowing to never submit to such tyranny again.

      For a wry look at the impossibility of absolutes, check out this tenant twist of law:
      http://www.sfweekly.com/2009-06-17/news/service-with-a-snarl/

  17. avatar Jonathan -- Houston says:

    Landlords ban various things, like pets, because tenants tend to damage the property or otherwise expose the landlord to liability. Your lease generally forbids you from operating a business onsite, too, because there are greater risks associated with production activities and the foot traffic of customers, for example. These aren’t covered by the landlord’s insurance, so the risk associated with them is not properly priced and reflected in your rent. You’re getting something at someone else’s expense when you demand rights that impose costs on others.

    Now, as with pet deposits, some landlords may allow for an alternative arrangement that would permit you to keep a pet while giving the landlord some means of compensation for damages. What might such an arrangement for firearms look like? I’m not sure. Perhaps a safe or certification of firearms training obviating the underlying risk? Perhaps renter’s liability insurance to pay in the event of loss? Really the bottom line comes down to two critical points:

    1. You’re each adults and should be able to agree, or not, on whatever works for you both. Don’t like it? Rent somewhere else or buy your own place.

    2. Don’t whine to the government about “rights” infringement between private parties. I have a right to associate. That doesn’t in turn impose an obligation on Israeli supermodels to accept me as their roommate. Once you invite the government into your home to resolve your disagreements for you, they turn into the houseguest from Hell who never leaves.

  18. avatar Soccerchainsaw says:

    Part two of this discussion should be about businesses that are open to the public but do not or cannot provide enough security to keep their patrons safe from all threats. To my way of thinking, these businesses should not be able to restrict the public from their rights as long as the exercise of their rights does not impede their business. So I could say a prayer before eating a meal but I could not hold a church service in the middle of the lingerie dept. I could carry concealed or open but I could not dissasemble and clean my Sig on the bar. A business that wants no firearms inside should become a private club where all club members agree to abide by that rule. Kinda like the members only strip joints operate now, or so I’m told, ahem…

  19. avatar Kevin says:

    It’s the landlord’s home. His home, his rules. I’m a libertarian, and I believe that people should be free to discriminate as they see fit with respect to their property. The landlord should be free to favor renters based on their religion, their political leanings, or even their race. The landlord could feel free to do most of the ridiculous things that DZ mentioned (except for the voting fraud case), but any landlord that attempted to enter such clauses in their contracts would find themselves losing money and alienating customers for no good reason.

    Look at it from the landlord’s perspective. Some people feel uncomfortable with an individual keeping arms in their rental property. If someone breaks in and kills you, then the landlord loses the money remaining on the lease. If someone breaks in and you kill them, the landlord has to replace several sheets of drywall. At this stage, it makes economic sense for some landlords to restrict guns on their property.

    The way to address the issue isn’t by limiting property rights, but by addressing tort law. Any person who creates a gun free zone should be assumed liable for the protection of the individuals inside that gun free zone. Now the landlord can either buy an expensive security system, which doesn’t really guarantee anyone’s security, or he can allow renters to be armed. By changing tort law, you’ve changed the incentives to allow weapons in rental homes.

  20. avatar Chris Mallory says:

    That 32% should be barred from voting as well.

  21. avatar uncommon_sense says:

    When a person leases a home/apartment, they have the right to do anything they want in that space, period. And if they do something that damages the home/apartment, then they can repair it or pay someone to repair it. How hard was that? The only reason a landlord would stipulate anything the resident does is because the landlord is petty tyrant, a blight to humankind.

    As for property rights versus other rights, from a legal perspective you have almost no rights on another person’s property. I believe this is obscene and I have posted on this before. I will summarize the way things should be …

    Property rights means two things:
    (1) The owner is indeed the owner and no one, including government, is entitled to it.
    (2) The owner defines the use of the property.
    Those are what should be the extent of property rights. Nothing more, nothing less. Nothing in those rights empowers a property owner to subjugate a guest — to deny their human dignity. A property owner has NO right to:
    (1) rape a guest
    (2) murder a guest
    (3) imprison a guest
    (4) “tie a guest’s hands” so that a criminal can assault them
    (5) order a guest to undress
    (6) order a guest to wear excessive clothing
    (7) order anything about a guest’s clothing other than an absolute minimum decency standard (“no shirt, no shoes, no service” for example).
    (8) order a guest to NOT use an asthma rescue inhaler
    I think you get the idea. A property owner has no right to insult the human dignity of a guest. As a result, a property owner has no right to tell a guest they cannot be armed because that is “tying their hands so that a criminal can assault them”, or telling them how to dress if you will, or telling them they cannot possess/use an “asthma rescue inhaler” (firearm) in a life or death situation. Further, whether or not a guest is armed does not affect the use of the owner’s property. Thus a property owner has no “right” to tell a guest they cannot be armed, any more so than they can demand that guest NOT have an asthma rescue inhaler. If the owner fears that a guest will use their firearm in self defense and damage the owner’s property, they can take solace in the fact that the guest is financially liable for repairs. Property owners who demand that guests disarm are petty tyrants, plain and simple. There should be no place for them in our society.

    As I stated, this is unfortunately not the current legal landscape. Somehow our courts agree that land owners cannot imprison, rape, or kill a guest — and the courts even hold that landowner’s have an obligation to have a “safe” home/business and yard (cannot have faulty steps, slippery floors, or booby traps in the yard) — and yet the courts let a property owner dictate an unsafe condition when it comes to requiring guests to disarm.

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