Senator
Roger Bedford re-introduced a bill to be considered during the 2013
legislative session which reinforces the Right of each citizen to
lawfully transport and store firearms within his or her private motor
vehicle for lawful purposes in any place where the vehicle is otherwise
permitted to be. This passed as part of SB286.
This is more than an Employee Protection bill -
it would apply to most public and private property. It is written to
support anyone to has a legally possessed firearm locked in his vehicle
wherever it is legally allowed to be. It will also provide limited
immunity to property owners for injuries resulting from another person's
actions.
It does NOT allow an employee to carry a firearm while at work - that would still be up to their employer.
This article on a similar bill in Tennessee addresses both sides:
- The second amendment rights of citizens
- The rights of property owners
Fight over Tennessee's "Employee Safe Commute bill" provides food for thought for Ohio legislators and business-owners
The following was prepared by the Tennessee Firearms Association's Legislative Action Committee.
Some permit holders and firearms owners are giving pause to support
of the Employee Safe Commute bill (SB3002 HB 3560). They are asking
questions that some in the legislature who are true conservatives are
concerned with. These legislators are not the ones opposing this
legislation because Big Business has told them to do so - those
legislators are simply doing nothing more than selling their votes for
corporate money. Aside from those who sell their services for money,
there are some legislators who are truly valuing both rights and trying
to figure out how to address the Employee Safe Commute bill. I am in
that last camp but I have made my decision.
First, the issue was framed by Senator Jackson 3 years ago not as one
right "trumping" another but the balancing of important rights which is
something that must happen even with constitutional rights. Take for
example the limits on the First Amendment right of free speech which,
although broad, is not absolute as we all know from the example of
yelling fire in an auditorium full of people.
Now, let's examine the current source and status of the rights we are discussing.
On the issue of property rights, the courts have made clear that
property rights are protected most frequently by reference to the Fifth
Amendment and the due process clauses. Thus, rights in property may not
be taken by the government absent just compensation in a general sense.
That pertains to both real and personal property (e.g. cars).
However, our system does allow government to regulate the uses of
property under its police powers. Thus, real property is subjected to
health and safety codes (building codes); zoning codes (which often
exist to balance property rights of geographically related or adjoining
property owners); land use codes; the ADA; as well as other laws such as
those that address smoking, environmental impact, aesthetics, handicap
access, occupancy, noise, nuisance, light ordinances, and the list goes
on. With personal property, such as cars, we have occupancy, licensing,
smog, financial responsibility, speed and safety regulations, among
others.
Also note that in human history, there has been no natural nor divine
right to absolute ownership of property. Certainly, in many eras, the
rights in property were only absolute in the government - not the
citizens. It is indeed a secular determination of relatively modern
creation that the citizens have claimed and been secured by government
in individual ownership and control of property as an incident of
citizenship.
Ultimately, the point is that there is no constitutional or at this
point statutory provision which provides that rights in real or personal
property "shall not be infringed."
Another right that we are discussing is the inherent if not
instinctive capacity and right of self-defense. This right is so
fundamental as to be instilled in us by God as our creator. No human
invented the concept of self-defense as, indeed, in exists in
substantially all scientent beings. Substantially all beings will react
instinctively in self-defense.
On the right of arms, our Founders viewed it in two respects. One, as
incidental to the wisdom of God to instill in all of us the instinct of
and for self defense. We are not taught to recognize and flee from
danger, we know it instinctively and generally respond without
premeditation. We must learn to manage that instinct if we elect to do
otherwise than flight.
Thus, in that regard, the Founders declared and the states ratified
that "arms" are the only item of personal property expressly protected
under the union and many State Constitutions. The second and primary
context within which the Founders established the 2nd Amendment related
to the political right of the citizens to change and displace the
institutions of government itself - just as they had just done with
England.
In some instances, rights are limited or balanced against other
rights. For example, real property rights are balanced against rights of
adjoining landowners owners. 2nd Amendment rights are balanced to an
extent under the Police powers for those who are rendered infamous.
Now, turning to the question of the Employee Safe Commute bill. The
bill does not require an employer to hire anyone. The employer has the
capacity to hire those who he/she/it desires to employ. The bill does
not require the employer to provide on-site parking. The bill does not
require the employer to provide "secured" parking. The bill does not
require the employer to affirmatively do anything at all nor to assume
any material or quantifiable risk.
However, when an employer allows or requires employees to park on its
real property (a voluntary decision of the employer), this bill would
prohibit the employer from attempting to regulate the employee's
property rights in his or her car/truck/motorcycle/etc particularly as
pertains to the legally permissible transportation of firearms. The bill
does not require the employer to allow the employee to take the firearm
beyond the personal property zone of the car.
So, for those wrestling with this it is almost like the game of
rock-paper-scissors but that assumes all three components are in fact
equally protected rights, but they clearly are not.
So, as pertains to the car and the real property, which trumps? When
the real property owner invites, requires or allows the employee to
commute does the employer have the right to infringe the rights of the
car owner relative to the legally possessed contents of the car while it
is parked? No because those are essentially co-equal rights and the
rights of the real property owner as to the type, color, size, tires,
and contents of the employee's car are not subject to infringement
merely by the required or permissive parking.
As pertains to the real property rights and the 2nd Amendment rights,
which trumps? Is it the assertion of the real property owner who
voluntarily employs another that by voluntary employment the employee
thereby surrenders the right of self-defense? Is it that the employee
surrenders the right to select among those legally possessed means of
self-defense when they accept a job offer - if so, do they also
surrender the right to resist robbery, rape or murder while employed?
I am not saying that self-defense completely trumps real property
rights - certainly not to the extent that government already feels and
demonstrates, perhaps unconstitutionally, a willingness to infringe,
restrict and exercise dominion over real property rights.
What I am saying is that a reasonable constitutional balance of these
rights must take into consideration the differential degrees of
constitutional protections given by the courts to 2nd Amendment and the
rights in real and personal properties. There is no material
infringement of the employer nor demonstrated risk to the employer from
this balancing. There is however a material risk - risk of impaired
capacity for self-defense - to the commuting employee.
So, does a real property owner - one who voluntary employs others and
expects them to commute to work - have the right to infringe or
regulate the property and self-defense rights of the employee
particularly when the "infringement" if any to the employer poses no
substantial or material infringement of its rights. For me, the answer
is no. I will defend property rights even against the current
infringements of government but I am comfortable at this point with the
balancing of real property rights of employers in business and
commercial properties where they have chosen to employee individuals
whom they know have rights of self-defense and rights in their personal
property that they will be using to commute and park at the willing
acceptance of the employer against the rights of those same employees to
defend themselves while engaged in off-premise commuting.
And a final observation. We are hearing these elected officials
starting to hedge on the breadth of the bill and, when they do, they
almost immediately mention properties owned by the government. For me,
the government has no property rights - the citizens own the property
and government is but a mere steward. The 2nd Amendment expressly
addresses and prohibits the infringement of 2nd Amendment rights by
government entities and yet those are the very examples that are being
mentioned at this point by government officials who apparently do not
give deference to the 2nd Amendment's unqualified denial ("shall not be
infringed") of its capacity to infringe the 2nd Amendment.
Some will disagree and assert that the real property rights of
employers trump the God given instinct of self-defense and the 2nd
Amendment declarations of the Founders. When they do, consider the
depth of their considered analysis or whether its a mere unsubstantiated
assertion.
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