Public Accommodation/Civil Rights/2d A.
This is a discussion on Public Accommodation/Civil Rights/2d A. within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; It's been a long time since law school. So any lawyers out there who know better, please chime in and set me straight.
I remember ...
August 27th, 2008 10:26 AM
Public Accommodation/Civil Rights/2d A.
It's been a long time since law school. So any lawyers out there who know better, please chime in and set me straight.
I remember learning that in the 60's some places in the South were not overly supportive of certain civil rights initiatives.
I also remember that even though it was against the law for the government (i.e., Southern towns, counties, States) to engage in racial discrimination it was not thought to be State action if the local Woolworth's lunch counter turned people away because of their skin pigmentation.
That problem, IIRC (and it's a big IIRC) by the Supreme Court holding that places that "affected" interstate commerce (which is anything, under Sup.Ct. precedent since the 1930's or 40's - - believe me, anything), as places of public accommodation, could also be sued under certain civil rights statutes (42 USC Sec. 1983?).
Not prosecuted in criminal court, but could be held liable in damages.
Would this approach not work for licensed CCW'ers?
Many of the same arguments, again IIRC, were used by the racist idiots that other idiots use now: it's MY property, and if I don't want them (insert racial slur here), it's a violation of my "property" rights to have them trespassers here" .
Works the same now - - employers and parking lots, posted businesses- -"If I don't want those rednecks who cling to guns on my precious property, then that's my RIGHT, because those paranoid, inbred, cousin-[edited] 'Deliverance' extras are committing trespass upon my sacred property rights".
Another angle I've thought about is that for many years racial discrimination was perpetuated through use of restrictive covenants in real estate. Again, a strictly private arrangement that ensured lilly-white suburbs. Couldn't sell the place to person with the wrong skin tone.
The Supremes struck down the ability of the States to enfroce such covenants, thus doing away with them.
Can we apply this stuff to gun rights? If not, why not? Anyone know?
I predict many, many years of struggle here. Heller was just the beginning. They needed to go a little farther (is it - gun in the home for self-protection- a "fundamental" right? If so, very little regulation can be justified- - it must be no more restrictve than necessary to effectuate a compellling interest). If not, almost any regulation is OK.
Why only a handgun in the home? That can certainly be used as a means of repelling an invasion of the home by a foreign power, an insurgency or a tyrannical government, sure the 2A goes beyond the ability to repel home invasion.
Lots to come on this front in the decades ahead.
For those eggheaded lawyers out there, I'd like to see a First Amendment analysis more or less imported into Second Amendment law - - as well civil liability similar to that for discrimination in public accommodation.
For that matter, off on a bit of a rabbit trail, I'd like to see mandatory, felony, federal prison time for those, who acting under color of law (st. or fed.) who unlawfully interefere with gun rights (Katrina-like confiscation or that poor dude in Denver).
We can hope.
Last edited by Captain Crunch; August 27th, 2008 at 01:55 PM.
Reason: Deleted a language workaround.
"...bad decisions that turn out well often make heroes."
Gary D. Mitchell, A Sniper's Journey: The Truth About the Man and the Rifle, P. 103, NAL Caliber books, 2006, 1st Ed.
August 27th, 2008 10:26 AM
August 27th, 2008 10:55 AM
I am no lawyer, so now that we have that out of the way. I think what your going to run into is that they are not discrimnating against the people, it is that they are discriminating against the guns. Employers aren't keeping their employees out of the parking lot, or the gun busters signs are keeping the customers out, it is just keeping them out while they have a gun.
As far as the guns in the house or handgun in the house or that part, since that is limited to a few states and municipalities, it is going to take something on the order of Heller to change it in those areas. Most of us, especially down south have very little restrictions on ownership or possesion of our guns. The discrimination that took place decades ago was region wide. Most of the entire south had those written or unwritten barriers in place, it wasn't just a single city like DC or NY or Chicago. As long as the people that are living in very restrictive pockets are not willing to ask for or demand change, then I think things in those pockets will simply remain as they are.
You being a OK lawyer can't sue Chicago for their laws, unless someone from Chicago is willing to file the complaint. At least I think that is right. Heller just happened to be one in the restrictive area that was willing to stand up for his right. It will take Heller's in other areas to stand up and demand equality under the law. Those of us that live in the "free" America can't really do anything about it.
It took Rosa Parks, and the kids in Little Rock to stand up for their civil rights, those cases, from those interested parties are what made the differences. We seem to be short of those types of people these days, except for Heller it seems.
Just remember that shot placement is much more important with what you carry than how big a bang you get with each trigger pull.
Texas CHL Instructor
Texas Hunter Education Instructor
August 27th, 2008 11:47 AM
Not a lawyer, but I think the heart of the issue in your question goes to wether or not a CCW holder is a member of a protected class. As far as I am aware, the answer is no. In light of that, basically, there are no grounds for suit on that merit point.
August 27th, 2008 05:11 PM
I would think that the problems encountered pushing the OP's ideas would be two fold. First, the state laws specifically protect private property rights, and though an exception was carved out for civil rights violations, it seem to me unlikely that CC License Holders would ever win such protection.
Second, I don't think the judges would buy the argument. They have a hard enough time coming to grips with 2A, and typically ignore it. So why would they construe the OP's scenario as having anything to do with interstate commerce.
Now, that said, I suppose there is an interstate commerce issue in not recognizing issued licenses from other states, but I wouldn't hold my breath that such an argument will ever fly.
Judges too often have a really amazing capacity to rule in favor of government or private business interests, at the expense of ordinary citizens. I doubt they would do anything different in this sort of case---just laugh it right off the docket.
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