If you don't have time, here's the transcript
This case is interesting to me because a lot is at odds with the way I intuitively see things.
First of all, the way Bruen compels both sides to argue historical narratives is damn silly. Sure, as a libertarian, it's certainly nice that lawmakers are forced to find historical analogs before they can restrict firearms, but there is a lot unanswered about just how that should work. Questions like "are anti-poaching laws adequately analogous to anti-carry laws?", and "if colonial-era laws and traditions are relevant, why aren't pre-statehood laws and traditions relevant?", and "just because we all find the black codes distasteful or even unconstitutional today, does that make them any less applicable historically?" need to be answered... And hopefully this case clears some of that up at least.
Getting into the case itself, it does seem as much about property rights as firearm or self-defense rights. My
personal philosophy is that public-facing businesses are largely required to do business with the public... This is an issue that comes up whenever there is a discrimination case, and it came up big during the COVID plague as well. In my view, if your business model is open to the public, if there is an "OPEN" sign on your unlocked door and you want people to walk into your business, then you are licensed, permitted and obligated to serve whoever is in your community, at least until they begin to take action within that you find detrimental. Legally speaking this is where "protected classes" come in, which is another legal concept I find silly... In my view, if you have a public-facing business, your default obligation is to serve
anyone, regardless of any class they may belong to.
But now the question is, are there
any rules you can put on who you serve? Can you require people wear a mask to enter, or not wear a mask, or not have a backpack, or pull down their pants, or get a vaccine, or a hair cut, or speak English, or say a pledge of allegiance, or not smell like curry (whether or not you are deathly allergic to curry) to do business with them? On one hand, private property and the right to personally associate is absolute, sure... Until you are operating as licensed public-facing business, at which point I believe you yield a lot of your right to control who you associate with.
For people also have a right to engage in commerce, and that right is often at odds with a business owners' right to freely associate. If somebody has a weird hairstyle, or a swastika tattoo, or is unvaccinated, or smells bad and looks dirty, and so every store in town decides they aren't going to do business with that person, then is that person now pariahed from society and destined to die because they can't engage in life-sustaining commerce?
I believe that everybody in a community has a right to engage in commerce with the public-facing businesses in that community. At least until they're disruptive in some way or adjudicated against.
But some things
are disruptive by their very presence. What if they have a dog, can you tell them no dogs? What if they're naked, can you require they wear clothes? What if they're covered in vomit, can you tell them to come back after a shower? What if they are carrying a rifle, can you tell them no rifles? What if they are wearing an explosive suicide vest, can you tell them no explosive suicide vests? What if they have a MAGA hat?
My first personal conclusion is, I'm fine with a business saying "no guns allowed",
but it can only go so far as openly-visible guns. A public-facing business doesn't have a right to pat you down or search you upon entering. "Concealed means concealed"; a business can't bar somebody from commerce due to any reason that isn't immediately visible or obvious.
I also don't philosophically believe businesses can use your entrance, presence or even transaction as as any sort of binding agreement; like it wouldn't be legally binding if McDonald's posted a sign that said "if you come through this door you agree to give us $1,000 and to name your first-born child Big Mac". It should be no more legally perilous if you had a concealed gun and carried it into a business despite the business having a sign that said "No Guns Allowed". Okay, I didn't do what the sign said; so what? What is legally binding about a sign on a door? If I do anything illegal or that you find offensive, that can be dealt with, but the sign shouldn't have bearing in that. "I didn't see that sign."
But that still doesn't entirely answer this case... This case is largely about the state compelling public-facing businesses to take a default position on enacting rules for their customers. In what other ways does government do that? They require sanitary requirements: "service animals only" and "no shoes, no shirt, no service" are Department of Health requirements, correct? I don't believe that is unconstitutional. But those requirements also apply to all applicable businesses; a business owner can't opt out of them, right? During COVID the state or county mandated we present vaccine cards for service; I'm pretty sure that was an unconstitutional requirement, for the government and the business, although I don't believe it was every adequately litigated. But again, for at least most of that period, it was a blanket requirement for all applicable businesses. Where else can a business rightfully make a decision on whether to allow something or not, but then the state decrees a default answer for all businesses? They don't do that for smoking; businesses can't opt-in to smoking. Where else is our government issuing a decree on behalf of all businesses but then giving them the opportunity to opt out of?
So I've reasoned this case out and have decided how it should work:
1) A business (or owner of any other open-to-the-public private property) can bar people from carrying visible guns, or most anything else, if they deem it disruptive.
2) Open-to-the-public private entities don't have means to know who is carrying concealed guns, and so can't bar concealed guns... And any attempt to bar them should be frivolous in the event a concealed gun becomes an unconcealed gun.
3) If there is customer requirement that a business does have control over, the state can't mandate a default stance one way or the other... What is actually up to property owners to decide, should be left to property owners to decide.
4) It would sure be nice to have a more explicit affirmation of gun rights than Bruen, which is still a pile of unanswered questions at this point.
5) One more thing, if a private entity does bar open carry on their property, that rule assuredly should apply to everybody, regardless of where they are getting paychecks from.
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