Tennessee’s ‘guns in parking lots’ bill a net drain on liberty

George Scoville Media Strategist
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As states around the nation try to preempt a new push for federal gun control laws, the Volunteer State has stepped forward as a shining example of what not to do. Most gun owners are happy with State Senate Speaker Ron Ramsey’s proposal, which would allow gun owners to keep firearms locked in their cars at their places of employment. But this gun owner believes Ramsey’s bill erodes property rights, and exacerbates a big-government problem with more big government. Tennessee Republicans deserve praise for tackling gun rights ahead of a possible federal intervention package, and the bill’s final passage appears imminent; but Ramsey’s colleagues in the House should reject his proposal and alter their tack before it’s too late.

As Justice Antonin Scalia articulated in the majority opinion in District of Columbia v. Heller, we find the Second Amendment’s roots in the English Declaration of Rights of 1689, which asserted what Scalia called an “ancient right” of people to not be disarmed by the Crown. The Founders also recognized this right, and were wary of a government — any government — that would disarm its citizens. Ownership and possession of firearms, they believed, separated citizens from subjects.

Ramsey’s supporters are rightly bothered by the current regime, under which a gun owner can receive a jail sentence if found in possession of a firearm where a “NO GUNS ALLOWED” sign is posted, even on private property. To that extent, threats of criminal charges and imprisonment have a chilling effect on the exercise of ancient rights. Nobody should doubt the deterrent effect of firearm possession on violent crime, and gun owners are right to want to carry in today’s society.

But the current law was borne out of a conflict of rights: the right of a citizen to keep and bear arms, and the right of a property owner to determine the conditions under which someone may enter his/her property. We should view the issue as one of voluntary bargaining between private actors in the market; this is not a cut-and-dry Second Amendment issue.

Store and office building owners voluntarily buy leisure from employees with wages and benefits, which may include a parking spot, or they voluntarily offer parking as an amenity to consumers in exchange for patronizing their place of business. Employees and consumers alike want to bring firearms with them to the workplace, for purposes of personal protection. But some employers who are anti-gun, for perhaps a multitude of reasons (political ideology, property insurance premium prices, etc.), decided they wanted to prohibit guns from their property. The current law attempts to protect these employers’/owners’ rights to determine who may receive their permission to enter their property, and under what conditions.

Now come gun owners, asking the legislature for a law to effectively criminalize firearm prohibition on private property. Employers and property owners erred in the first place, asking the legislature to step in and criminalize firearm possession. But now both groups seek a government intervention to compel the other group to acquiesce to the terms of an otherwise voluntary commercial exchange! In 2011, the Tennessee GOP gained control of both chambers of the assembly and the governor’s mansion for the first time in history. It’s maddening to watch a Republican Party hell-bent on using big government to solve “problems.”

A thought experiment analog that lawmakers in the Music City should really be able to appreciate might shed light on a possible alternative approach.

We all have First Amendment speech and press rights, and the pervasiveness of photo and audio capture technology, as well as content publishing technology, makes exercising those rights incredibly easy. But if I want to take smartphone video of a concert I attend, and publish it on the Web, my speech and press rights come into direct conflict with the artist’s performance and intellectual property rights, including their right to ownership of their likeness. If venue employees discover me illicitly recording the concert, they reserve the right, on behalf of the artist, to expel me from the premises. They may even use private security to search my pockets for cameras and audio recorders as I pass through the turnstile, as a condition of my entrance to the venue. Yet there’s no public outcry against this supposed infringement of my First Amendment rights.

Why do we trade some rights so easily and voluntarily with some private actors, but not other rights with other private actors?

A smartphone cannot protect me from a violent assailant in a dark parking lot as well as a firearm can (unless I have Stephen Strasburg’s arm, Spiderman’s reaction time, and Robin Hood’s accuracy). This no doubt bears heavily on the question currently before the Tennessee legislature, and I agree with gun owners that a policy that encourages gun ownership will do more to deter violence than laws banning guns. As the old adage goes, “The safest place in the world to be is the sidewalk outside a gun show.” But this alone does not entitle me as a gun owner to encroach on someone else’s property rights; I do not have a right to park in my employer’s parking lot in the first place!

Perhaps a better path forward would be for Speaker of the House Beth Harwell to use her time, energy, and position to decriminalize possession of firearms where property and business owners do not want them. Employers could still reserve the right to terminate employees who violate company policy, and could still call the police or sheriff to forcibly remove violators from their property (if need be) instead of filing criminal weapons charges or jailing someone. Other possible market-based solutions include employer competition for high-quality labor through the provision of private security on the premises of their place of business as a fringe benefit. Perhaps employees could demand such security as a condition of continued productivity when negotiating with their employers. This dispute is not so large or difficult that Tennessee needs a new law.

Ramsey’s bill cleared the State Senate easily last week, and a State House subcommittee panel took only six minutes to report out the bill a few days ago. The legislation now faces a vote of the full House before the assembly can send it to Governor Bill Haslam for signature. Here’s hoping Tennessee Republicans stop to get this right while there is yet time. Putting Tennesseans in equally heavy chains is a net drain on liberty.

George Scoville is a media strategist, researcher, and writer in Springfield, Virginia.