Update: thanks to Gideon Kanner for noting that our original read of the Georgia statute was off the mark. It did not forbid the carrying of firearms in churches, but required them to inform security guard that they were carrying, and important distinction. The post has been revised to reflect that.
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We’ve never waded into the Second Amendment debate on this blog, preferring to focus on the Fifth Amendment and related topics. Well, here’s an opinion from the U.S. Court of Appeals for the Eleventh Circuit where the two issues cross over.
The issue in Georgiacarry.org, Inc. v. Georgia, No. 11-10387 (11th Cir. July 20, 2012) was whether Georgia’s “Carry Law,” which requires those carrying firearms in certain areas including churches to inform security personnel, violated the First and Second Amendment rights of those who would prefer to carry firearms in churches and not tell anyone. The district court dismissed the case, and the Eleventh Circuit affirmed. What interested us was not so much the result, but the court’s reasoning and the sources it cites in support. The court concluded that to force churches to allow firearms-carrying persons onto their private property would violate their Fifth Amendment rights.
The passages in which the court spells out the sources of those rights are lengthy, but are definitely worth a read. Our thanks to colleague Elaine Mittleman for the heads-up.
Indeed, numerous colonial leaders, as well as scholars whose work influenced the Founding Fathers, embraced the concept that a man’s (or woman’s) right to control his (or her) own private property occupied a special role in American society and in our freedom. See William Tudor, Life of James Otis 66–67 (1823) (quoting a speech from 1761 given by James Otis, who stated that “one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle.”); John Locke, Two Treatises on Government, 209–10 (1821) (“[Property] being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men.”).
An individual’s right to bear arms as enshrined in the Second Amendment, whatever its full scope, certainly must be limited by the equally fundamental right of a private property owner to exercise exclusive dominion and control over its land. The Founding Fathers placed the right to private property upon the highest of pedestals, standing side by side with the right to personal security that underscores the Second Amendment. As Blackstone observed,
[T]hese [fundamental rights] may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man’s natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.
1 William Blackstone, Commentaries *129.
Blackstone talks not of sacrificing one of the “principal or primary” rights for another, but rather of “preservation of these, inviolate.” Id. (emphasis added). He concludes that all of the three fundamental rights of personal security, personal liberty, and private property can, and must, coexist together to fully protect civil liberties. Id. It is simply beyond rational dispute that the Founding Fathers, through the Constitution and the Bill of Rights, sought to protect the fundamental right of private property, not to eviscerate it. See John Adams, Defence of the Constitutions of Government of the United States (1787), reprinted in 6 John Adams, The Works of John Adams, 3, 9 (Charles Francis Adams ed., 1851) (“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”); James Madison, Property (1792), reprinted in 6 The Writings of James Madison 101, 102 (Gaillard Hunt ed., 1906) (“Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government which impartially secures to every man whatever is his own.” (emphasis in original)); Thomas Paine, Essay dated December 23, 1776, reprinted in Thomas Paine, The Crisis 8 (2009 ed.) (1776) (“[I]f a thief breaks into my house, burns and destroys my property, and kills or threatens to kill me, or those that are in it, and to “bind me in all cases whatsoever” to his absolute will, am I to suffer it? What signifies it to me, whether he who does it is a king or a common man; my countryman or not my countryman; whether it be done by an individual villain, or an army of them? If we reason to the root of things we shall find no difference; neither can any just cause be assigned why we should punish in the one case and pardon in the other.”).
Plaintiffs, in essence, ask us to turn Heller on its head by interpreting the Second Amendment to destroy one cornerstone of liberty—the right to enjoy one’s private property—in order to expand another—the right to bear arms. This we will not do. If, as Blackstone argues, our concept of civil liberties depends on a three-legged stool of rights—personal security, personal liberty, and private property—it would be unwise indeed to cut off one leg entirely only to slightly augment another. Rather, our task is to read the Second Amendment’s preexisting right alongside the equally important rights protected by the Constitution in order to strengthen all three legs and thereby better secure the foundation of our liberty.
Slip op. at 36-39. Now, if only we would see similar language in a case that was actually about protecting property rights.
Georgiacarry.org, Inc. v. Georgia, No. 11-10387 (11th Cir. July 20, 2012)