Home Forums Miscellaneous Topics Second Amendment Home Depot and Guns

Hey Ram

I could not (OR TRIED ) to say it better. I ptu a lein on my the UCC1. but thats another day and time. I just want people to be educated in this realm.

Bearbeater

Crow hunter,

Bullseye. In Minnesota, a store has to post a "No Hanguns" sign. The store is required to ask you to leave and can only involve the police if you refuse. The police will remove you from the building under trespass laws - not for carrying a handgun.

The law had to be written to that effect. "No Handguns" as a matter of law would mean police would have to disarm before entering the building, and armed store security would also be forbidden.

There are places where it's illegal to carry, but there are provision in the law for police on specified public property (schools, courthouse, etc.). No such provisions exist for private property.

it depends on how the law is worded. If it allows them to post the sign then you can not carry in the store. Not sure how the colorado law is worded, but I seem to remember that the texas law allowed them to post the sign and you could not carry if the sign was posted, but the sign had to be posted and it had to comform to the law as to where it had to be posted, and the size of the sign and all. tom

I live in Liberal A** CT, land of steady habits. I peruse my local Homeboy Depot all the time packing. There are no signs anywhere. As a side note, there are about 2.5 million people in CT. over 350,000 have concealed carry permits. Thats about one in nine.

Glad to be in the minority.... <img src="/ubbthreads/images/graemlins/grin.gif" alt="" />

Hey Paul;
I ain't no lawyer either, but how come if a fellow owns a restaurant and does't like Jews or Catholics or Sodomites, or Moslems or Baptists or Whites or Blacks he can't pick and choose whom he will let in his store? I am not for discrimination but it seems that the laws that gaurantee equal access for all kinds of folks to "public accomodations" ought to extend to gun rights, ie., you out to be able to carry in Home Depot.

But aint a lawyer in America that wants to dig into this! Rights for all minorities but heyyyyyyyy when it comes to gun rights that is different!

Sorry, but the second amendment does not apply to infringement by private individuals or corporations. For there to be a violation of any amendments there must be state action, which means a governmental agency of some sort has to be the one doing the restricting. The only amendments that have been applied to non-governmental entities are the ones dealing with slavery (13, 14 and 15). Just as you have a right to carry your gun, a private landowner has the right to keep you from bringing it on his property. Like all rights guaranteed by the Constitution, even the 2nd Amendment has its limits. Now if a state grants additional protection of that right, that is fine so long as it does not infringe on the minimum allowed by the US Constitution. In Pennsylvania our Constitution does just that, which is why we no longer have to get a local law enforcement officer to give a letter of recomendation to get a CCL. Always remember, the Constitution was written to protect us from the tyrany of the state. It doesn't prevent anyone from infringing a right one a one on one basis except for limited occasions.

The Second Amendment does not state that "Congress shall make no law abridging the right to keep and bear arms," but simply that this right "shall not be infringed." It does not specify by whom. Property owners may forbid any individual from entering their property, but to have a policy against exercising one's right is an infringement on that right. After all, how does the store owner know who is carrying and who is not? Frankly, it is none of anyone's business to know that. For the law to support such a policy is to violate that right.

1885, you say:". I don't hear much of armed citizens stopping crime, it does occur. A vast majority of the population simply doesn't want to use deadly force themselves and leave that to the police. "
Did you ever think that most of the times a gun is used to stop crime simply won't make the news? You don't often hear about some woman in a dimly lighted parking lot simply pull her .38 out and point it and have the "boys in the hood" that were harrasing her run off. ( as happened to my wife, while making house calls on her patients )
The other thing is this; if every time a gun was used to stop a crime was printed in the paper or spoken about on local news, they wouldn't have much time to speak about other things.
Just a thought.

Its all a matter of interpretation. The Supreme Court has said there must be state action for there to be a violation of a right. Inaction by the state by not enforcing your right to carry over the property owners right to do as he wishes with his property doesn't qualify. Again, the Constitution is structured to protect the citizens of this country from infringement of their rights by the government. Except in the cases of slavery, those provisions do not apply to the acts of private citizens.

I recognize all the lawyerly shibboleths in your above statements, but in law school what you learn is the current state of the de facto law, not the actual law de jure, which has been in constant violation by the Federal Government (including the Supreme Court) for many decades now.



Anyway, on to your point: If a store owner has a policy to the effect that those who exercise certain inalienable rights become, by that act alone, instant trespassers (whether their carrying of a weapon is known by others or not), while at the same time holding the property open to the general public for the purpose of conducting the sort of business which is normally open to the general public, with the intention of making a profit on the general public, that store owner is relying on the government to agree with and enforce his policy to deny individuals the right to keep and bear arms.



Let me explain. Normally, a person in a place that is open to the general public is not a trespasser until he is actually approached, told to leave, and refuses. At that point the government is legitimately required to back the businessman up. Under the current state of the de facto law, however, the government is required to go significantly beyond this and enforce a policy/strategy designed to deny members of the general public the right to keep and bear arms. This amounts to a prior restraint on the part of the government on the exercise of a right, and is actually a violation of the Second Amendment, which one could argue has been incorporated by the 14th Amendment as a protection against not only Federal, but also state action. The state action in this case being the enforcement of a store policy which is designed to deny to the general public the exercise of an inalienable right.



P.S. I don't argue that a property owner, even when he opens his property to the general public for his own profit, hasn't a right to exclude people for any reason he chooses (or for no reason at all), but only that this particular policy requires that the government go beyond that to the point of assisting said business owner in a strategy designed to deny the right to keep and bear arms to the general public. Yes, if a person walks in and announces that he is armed, that store owner may then ask him to leave (and the government must back him up), but to require under law that a man, who carries discretely, voluntarily forbear entering a business that is open to the general public amounts to a government violation of that man's right to carry. It would be like a business owner expecting the government to assist him in his policy of excluding Methodists from his business premises. People have a right to be Methodists, and people have a right to keep and bear arms.

I actually agree with most of what you said, I was just pointing out what the current state of the law is, and not what it is supposed to be. As for the law school shot, yes that is what they teach you. However, it doesn't mean that you have to buy in to it. Being a bit of an older student myself, with 10 years in the military to experience the actual working of at least one part of the government, I have taken a particular interest in the Constitution and its interpretation. I agree the path the Court is on strays from the intent of the writers. They created a system where that was a possibility, and so now it is the way it is. You have to take the bad with the good, and learn to adapt to it. However, I do think it is a bit of a stretch to say that the government supporting, or just not interfering with, a private landholder in denying certain individual's access to his land is a violation of that individual's right, so long as it is not done on a basis determined egregious by society. (I'm sure to get flamed for this, but race is an often used example). The landholder has rights of his own that are every bit as important as any other individual's. To believe otherwise is to say that certain rights, and people, are more valuable that others. To say that the government must step in to prevent a private landholder from enforcing his rights to uphold your right to cary is inviting the same kind of governmental involvement that would trample your rights. It all has to be balanced in the big picture. In today's world where we must now live with the constant threat of violence from others, we have been required to relinquish a certain amount of our freedoms to protect society as a whole. While I imagine Home Depot's policy has more to do with politics than security, its their store and its not up to the government to tell them they cannot secure it from a threat, whether real or ridicuoulsy perceived. If I post signs on my property saying no hunting with firearms, but all archery hunters are welcome, I can do it. When Home Depot says its property is open to the public to sell garden gnomes it doesn't mean it is open for a kegger. Yes that is an absured example, but it illustrates my point. If you open your land to the public for a purpose, it does not mean you open it for all purposes. It is within the discretion of the landholder to place limitations on that access, which means exceeding that access does make you a tresspasser. There will always be those who don't like the fact we are allowed to own guns in this country, and they will take their little steps to try to fight it. In the end their ban won't make much of a difference because so few people really do care enough to dispute it. Maybe that will impower the anit-gun side, maybe it won't. Unfortunately the pro-gun side is not strong enough to prevent people from shopping there, because most people just don't care. That might be a failure of our society today, but again that is the way it is. Ultimately if you don't like their policy go to Lowe's or some other chain.

Bueller, there is a considerable difference between having a party at Home Depot and discretely exercising your right to carry at Home Depot, while shopping. It is open to shoppers, is it not?

Now you may have missed it, but my assertion was not that Home Depot lacks the right to remove anyone, for any reason. If they don't like Methodists, and someone volunteers that this is their persuasion, the owner of Home Depot can ask him to leave. If the owner doesn't like the look on your face, he can ask you to leave. If he doesn't like Asians, he can ask you to leave. If he believes you might be carrying concealed, and he doesn't like it, he can ask you to leave. If you stay, that's trespassing. Now that is not currently in conformity with the de facto law in the United States, which forbids most such exercises of property rights (those having to do with race or religion, anyway), but it is in conformity with real property rights in a free nation, which we no longer are. My argument has to do with making the state an ally of the property owner who wishes to open his business to the public while making it a crime to enter his place of business with a concealed weapon. You see the difference? In this case, a man could enter Home Depot, buy a garden gnome, leave, and be arrested outside for the "criminal act" of violating a store policy against concealed carry. This is not a simple exercise of a property right, but rather it is making the government Home Depot's partner in making the exercise of the right to keep and bear arms a crime. That's a state action.

Your comparison with private land and hunting does not apply as such hunters are not invitees but rather licensees (open up your copy of Black's). When I go to Home Depot, I am an invitee.

So now we're branching in to tort law? I think it is a very thin thread connecting the action of Home Depot to state action, and one the court, perhaps even Scalia, would not find strong enough. I'm not worried about being attacked at Home Depot so I'll leave my gun at home if that is what they want.

Bueller, Hawkeye...
Real interesting discussion here. I am keenly interested in the application of the Constitution, but please explain plainly if you would this question again:
1) Civil Rights laws, Inclusion, 14th amendment etc, equal access/public access etc. This means in a nutshell that the individual States cannot violate your federal rights, ie abrogate the bill of rights. So... as a consequence restaurant owners could no longer deny service to blacks jews and methodists. A redneck motel owner at the foot of the Blue Ridge Mountains near here shut the place down and boarded it up rather than admit blacks.

Also the sodomites are trying tooth and toenail to infiltrate the Boy Scouts on this basis, Civil rights laws, equal access, and yet where is sodomy a upheld as a right in the Fed Constitution?

Seems to me it is plain enough that keeping and bearing arms is clearly spelled out and the post civil war era of the 14th ammendment ought to be able to apply in this area too. Its just that the judges are nutcases and socialists and reprobates, (in way too many cases, although I exaggerate obviously)

Dixiefreedom, you are right. The current de facto law is hypocritical. Property rights have been curtailed when they interfere with the rights of, for example, Methodists to eat at an inn that is open to the general public. That is to say, people have a Constitutionally protected right to be a Methodist, and the choice to exercise that right may not be used as a pretext for excluding them from public accomodations under current de facto law. In the same way, the right to keep and bear arms is a Constitutionally protected right, but the choice to exercise this right is not deemed similarly protected according to current de facto law. If the 14th Amendment incorporates the First Amendment, then it must incorporate all rights stemming from the Bill of Rights. To do otherwise is hypocrisy. Home Depot operates under state license. It depends on state police powers to enforce its store policy to exclude certain classes of people from its premises. There is more than enough state action involved here.

My point was that a store owner has "invited" the general public into his store for his benefit, while the land owner who allows hunting merely tolerates entry, while receiving no benefit from it. Under law, they have a different status. You implied that these were similar and comparable situations. I merely pointed out that they were, legally speaking, apples and oranges, whether one is talking Constitutional or Tort law, i.e., regardless of legal context.



By the way, who said Scalia was such a strong Constitutionalist? Not I. They're all a bunch of usurpatious scalawags in my book.

Actually, the Civil Rights Act that forbid discrimination in public accommodations was upheld as an exercise of Commerce Clause power -- i.e. that refusing to let blacks sleep in your motel had a detrimental effect on interstate commerce and that Congress can act to remove such.

Case name was Heart of Atlanta Motel, I believe...my Con Law prof in college was VERY conservative and skeptical of many commerce clause arguments, but was on board with this one based on his observations while traveling in those days.

John

So if you come to my home and I ask you to NOt have a firearm, I'm violating your rights? GMAB <img src="/ubbthreads/images/graemlins/smirk.gif" alt="" /> Try this...before you enter ANY establishment, call ahead and ask if they allow firearms in thier building. Beofre buying ANYTHING call the manufacturer and ask thier official position on firearms. Chances are you'll never leve your house and never buy much anymore. <img src="/ubbthreads/images/graemlins/tongue.gif" alt="" />

Different situation. You are not inviting the general public into your home for your economic benefit. Besides, even a business owner ought to be free to ask anyone to leave for any reason. This is not the case, however, under current law. I would argue, however, that under substantive due process, any state law which makes it a crime to violate a store policy against concealed carry is a violation of the individual right enshrined in the second amendment, i.e., the right to keep and bear arms. There is no contradiction here, as the store owner may still ask anyone to leave, for any reason. He just cannot make it a crime by fiat to bring a concealed weapon into his store. If a state law supports this power on the store owner's part, then the state law is in violation of the 2nd and 14th Amendments.

Colorado law allows private property owners to deny me the right to carry and or request me to leave their property if armed. Various other places such as courts , colleges, ect. are also no carry zones, but in some of those areas I can leave my weapon conceled in a locked vehicle and be legal.

I have no problem with this, as I also expect to be able to control access to my property and can decide not to go to those places where I am not welcome as a armed citizen.

I've never seen a sign in any Home Depot store prohibiting firearms, and I carry most of the time when I'm not working.

My employer prohibits firearms in company vehicles and many of my customers also will not allow weapons on their property, so if I want to work I have to do it their way.