Posts Tagged ‘Property Rights’

Matt Zwolinski of Bleeding Heart Libertarians has written an excellent series of posts on the libertarian justification of property rights. Here‘s the latest.

The first and most important thing to note about both Locke and Nozick’s arguments is that, unlike utilitarian arguments, they are individualistic rather than collectivistic in nature. For the utilitarian, all that matters in justifying an action (or an institution like property rights) is its effect on overall well-being. On the utilitarian view, then, property rights are justified if the overall benefits they produce are greater than the overall harms they produce, regardless of how those benefits and harms are distributed among different individuals.

For Locke and Nozick, on the other hand, property rights are only justified if they benefit (or at least do not harm) each and every individual. Now, this probably seems like an extremely tough argumentative hurdle for the defender of property to clear. Could it really be the case that each and every individual is better off under a system of private property rights than he would have been without one?

The answer is, or can be, yes. Almost everyone today is vastly better off, and freer, because of the system of private property rights. In those rare, possibly pathological cases in which a person is worse off due to the system of property rights, the Lockean justification of property rights provides a rationale for some kind of “re”distribution as a matter of justice, a point that Matt notes at the end but defers to a future essay. In the event, this is one area where I tend to agree with BHL’ers: there should be a basic income of sort to replace the welfare state, which would probably have to be set at a few thousand dollars a year in the present-day United States in order to ensure that literally everyone is better off due to the private property system, despite its coercive nature.

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Over at Bleeding Heart Libertarians, there have been some interesting posts recently on moralized and non-moralized conceptions of freedom. Jason Brennan says defining liberty to mean only negative liberty is “linguistic revisionism” without philosophic import. He then makes the case that bleeding-heart libertarianism (or Rawlsianism or various other non-traditionally-libertarian conceptions of property rights) does not necessarily violate the “non-aggression axiom.” Finally, he argues against moralized conceptions of freedom. I agree with the first two posts but not the last one.

It’s true that people use “freedom” to mean different things. Hobbes infamously defined it as the absence of physical constraint. Jason prefers something like “ability to realize one’s ends.” Both of these definitions are non-moralized. As Jason makes clear, positive liberty is not only not good by definition, it is not always good. My freedom to swing my fist into your nose unprovoked does not deserve respect — but it’s still freedom, in this non-moralized sense.

Now, Jason is absolutely right that nothing substantive turns on how we define our terms. He’s also right that simply defining freedom as justice (that which is, in the final analysis, right) abuses ordinary language and is tautological. On the other hand, I will note a tension between the claim that positive liberty is not always good and this claim:

The thing that Marxists and others mean by “positive liberty” is valuable and worth promoting. One of the best arguments for classical liberal institutions is that as a matter of fact they do a good job getting people positive liberty.

But if positive liberty is not only not good-by-definition but is also not good-by-inference, then the mere fact that a system tends to promote positive liberty is not a point in that system’s favor. The fact that system X makes it easy for people to swing their fists into other people’s faces whenever they want, thus helping them achieve their ends, is not a point in favor of the justice of system X. Now, the claim might be that swinging fists into people’s faces hurts the positive liberty of those victims, and I agree — but I don’t agree that we can simply sum up positive liberties across people and truthfully say that everyone ought to try to maximize that sum. That’s a controversial moral claim. Indeed, Matt Zwolinski refutes the view strongly here, and even says, “No serious libertarian intellectuals think about libertarianism in terms of maximizing liberty.” I don’t know how this statement squares with what Jason says he and David Schmidtz are arguing about how we ought to evaluate the regime of negative liberty.

Furthermore, I don’t think we can rule out all moralized conceptions of freedom as tautological. People in ordinary language use freedom in a moralized but non-tautological sense all the time. When someone says, “I can say what I want, it’s a free country,” she’s not saying, “It’s a country where I can realize my ends.” She’s saying something like, “In this country, we are not supposed to be subject to the arbitrary domination of others’ wills.” Freedom as non-domination means a great deal to people, arguably more than the mere ability to realize one’s own ends. The reason slavery is so repugnant is not really that it makes the slave unhappy, but that it enshrines an extreme form of inequality and domination. (I’m making a substantive, controversial moral claim here.)

But freedom as non-domination is also not the whole of justice. Marxists like G.A. Cohen arguably accept non-domination just as much as libertarian anarchists like Murray Rothbard. They just disagree about the proper conception of property rights, which also belongs to the domain of justice. Now, if you are persuaded about the libertarian account of property rights, then a Marxist regime imposed without consent looks like unjust domination, un-freedom. Still, even if we read back into “freedom” claims about justice, freedom-as-non-domination is not tautological: it doesn’t simply define freedom as justice. Yet it is a moralized conception of freedom common in everyday discourse.


Jason Brennan responds by e-mail:

Thanks for posting that. Does this clear up things?

1. I don’t literally mean that positive liberty is always good, but rather that it tends to be good and tends to be worth promoting. Schmidtz and I talk at some length in BHOL about how there’s not clear measure of positive liberty, but that doesn’t mean we can’t make good estimates. If people are living longer, have more options, have more money, have more technology, etc, they will usually have more positive liberty.

2. I prefer to use non-moralized definitions of liberty: Neg lib = absence of obstacles, pos lib = power or capacity. But Schmidtz and I note that in common language, we often mean much more specific ideas when we use the terms “liberty” or “freedom”. If someone says, “X is a free country,” we assume she means they protect a wide range of negative liberties. My raise gave me the freedom to enjoy life, we assume she means positive liberty as capacity/power. And so on.

Schmidtz and I would agree with Matt Z and Nozick that negative rights are side constraints–we shouldn’t have a utilitarianism of rights. But negative and positive liberty are different. Negative liberty first and foremost should be respected, and then promoted. Positive liberty is to be promoted (when it’s good, and if doing so is consistent with our rights).

My response to Jason:

Thanks for the response. It clarifies a great deal. I clearly misread your position on positive freedom. I can’t quarrel with your description of the conceptual landscape below. Substantively, too, we’re not far apart, though I don’t think it’s generally morally impermissible to refrain from promoting the positive liberty of humanity in general (for instance, in order to focus on one’s own life projects).

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Here are the essay questions from the final exam I gave in “Introduction to Political Philosophy” last semester. How would you answer these questions?

Rights to Property
Answer one of these questions.
1. What is John Rawls’ “difference principle,” and how does he defend it?
What are its implications for the welfare state? Is the argument persuasive?
Why or why not?
2. Robert Nozick criticizes “patterned” principles of justice in holdings, like
Rawls’, on the grounds that they authorize unjust redistribution of wealth.
Why do patterned principles authorize redistribution? Why is redistribu-
tion unjust? Are those arguments persuasive? Why or why not?

Evaluating Moral Arguments
Answer one of these questions.
1. Evaluate the soundness of the following argument. “1. It is morally imper-
missible to take away anyone’s life, health, liberty, or possessions without
her clear consent. 2. Governments take away people’s possessions (taxa-
tion) and liberty (imprisonment) in certain circumstances. 3. Therefore,
governments must obtain the clear consent of every person they govern.
4. Virtually no government on earth has obtained the clear consent of ev-
eryone they govern. 5. Therefore, virtually all governments systematically
violate the rights of their subjects.”

2. Evaluate the soundness of the following argument. “1. It is morally
impermissible to allow someone to die when one could save that person
without sacrificing anything of comparable moral significance. 2. The
consumption of luxury goods is not of comparable moral significance to
human life. 3. Therefore, if one can save another person’s life merely
by transferring money that one would otherwise have used to purchase
luxury goods, one is morally bound to do so (i.e., it would be morally
impermissible not to). 4. Today, people in the rich world have surplus
money that they spend on luxuries, money that we know could save lives in
the poor world. 5. Therefore, people in the rich world are morally bound
to transfer money that would otherwise be spent on luxuries to people in
the poor world who would otherwise die.”

Notably, only one person who answered 3.2.1 thought the argument was sound, and only a small number of students who answered 3.2.2 thought this argument was sound. Both arguments are valid.

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George Will has a good column today on civil asset forfeiture abuse. He highlights an ongoing case in Tewksbury, Mass., where the DOJ and local police department are colluding to seize a motel from the owners because some drug dealers have stayed there in the past. The government is not claiming that the owners knew or even should have known about criminal activity at the motel; they can seize the property anyway, accusing an inanimate object of committing a crime. The Institute for Justice, who put out the recent Policing for Profit report blowing the whistle on ongoing forfeiture abuse around the country, is representing the owners and challenging the forfeiture on both Eighth and 10th Amendment grounds.

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Matt Zwolinski and John Tomasi have a thought-provoking piece entitled, “A Bleeding Heart History of Libertarianism,” in the latest Cato Unbound. They criticize postwar libertarians (specifically mentioning Mises, Rand, and Rothbard) for seeing property rights as absolute and, in their view, regarding the welfare of the working poor as irrelevant to moral justifications for capitalism:

In the remainder of this essay, we will discuss one particular way that neoclassical liberalism has a better grounding in the libertarian intellectual tradition than the libertarianism of Mises, Rand, and Rothbard. It is not the only contrast, but one of the clearest and most important differences between these two schools of libertarian thought has to do with the proper nature of concern for, and obligation to, the working poor. On this issue, the neoclassical liberal position is that the fate of the class who labor at the lowest end of the pay scale under capitalism is an essential element in the moral justification of that system. And this position, we will argue, has a far more solid grounding in the libertarian intellectual tradition than the justificatory indifference to which the postwar libertarians are committed.

They go on to cite John Locke, Adam Smith, and Herbert Spencer (yes, Spencer!) as classical liberals who would be more sympathetic to the neoclassical-liberal project of justifying markets partly on the basis of their consequences for the welfare of the least well off. However, they also argue, plausibly, that Rand and Rothbard in particular were not indifferent to the fate of the poor, simply that they viewed the coincidence of respect for individual property rights and a better life for all as a happy fortuity. (Mises was more of a consequentialist and perhaps after all a comfortable fit within neoclassical liberalism.)

I would stress that (more…)

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Another bizarre case of town government versus the property owner.

DEKALB COUNTY, Ga. — DeKalb County is suing a local farmer for growing too many vegetables, but he said he will fight the charges in the ongoing battle neighbors call “Cabbagegate.”

Fig trees, broccoli and cabbages are among the many greens that line the soil on Steve Miller’s more than two acres in Clarkston, who said he has spent fifteen years growing crops to give away and sell at local farmers markets.

For my own, briefer and less stressful encounter with town government, see here, here, and here.

HT: Our esteemed ringleader, Grover Cleveland.

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The World Economic Forum’s  Global Competitiveness Report has been released. You can read a summary in the Washington Post or go directly to download the report and the fascinating data tables here. As one might expect, the US has slipped from first to fourth (of 139 nations) over the past several years. Some of the data on how the US is doing relative to its competitors is disturbing. For example,

  • Government budget balance relative to GDP (117th), placing the US between the UK and Romania
  • Size of the government debt relative to GDP (122nd ), placing the US between Côte d’Ivoire and Hungary.
  • National savings rate (130th ), placing the US between Burundi and Serbia

These are based on official data sources. What I find far most interesting  are some of the data tables that speak to corporate perceptions of the government. The data is collected as part of the World Economic Forum’s Executive Opinion Survey.

  • Protection of property rights (40th), placing the US between Gambia and Malaysia
  • Diversion of public funds to companies, individuals, or groups due to corruption (34th), placing the US between Botswana and Chile
  • Public trust of politicians (54th), placing the US between Estonia and the UK
  • Favoritism in decisions of public officials (55th), placing the US between Lithuania and Tajikistan.
  • Irregular Payments and bribes to public officials (40th), placing the US between Spain and Poland
  • Wastefulness of government spending (68th), placing the US between Ghana and El Salvador
  • Burden of regulation (49th), placing the US between Guyana and Jordan
  • Efficiency of  legal framework in settling business disputes (33rd), placing the US between Botswana and Ireland
  • Efficiency of legal framework in challenging regulations (35th), between Uruguay and Gambia
  • Transparency of government policymaking (41st), placing the US between Saudi Arabia and India
  • Taxation: Data table 6.04 presents the rank ordering of nations based on the question: “What impact does the level of taxes in your country have on incentives to work or invest?” The US falls 71st out of 139 nations (the better the ranking, the less the perceived impact of taxation).  Data table 6.05 rank orders nations based on the total tax rate on businesses. The US, with a total tax rate of 46.3 percent has a higher rate than 88 of the 139 nations.

The US has long had an anti-statist culture and there has long been an adversarial relationship between business and the state. But I must admit, I find these figures striking. If we assume that economic recovery depends on corporate investment decisions, and these decisions are influenced by perceptions of the larger political-institutional environment, none of this can be good news.

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I’m a native plant gardener. I’ve removed all of my back lawn and replaced it with native trees, shrubs, vines, wildflowers, ferns, and grass and grass-like species, and I’ve removed most of my front lawn and done the same, apart from some mown paths. Why? Because native plants are better for the environment. Our wildlife, from insects to birds, coevolved with these plants and are well adapted to using them for survival. Alien plants often require special help to survive (watering, fertilizing, spraying with pesticides, none of which I do), or else they take over because they lack their natural predators to keep them in check. My native garden has attracted many species of birds, including things like flycatchers that one rarely sees in cities. The garden is awash in bees, moths, and butterflies the entire summer. Here are some pictures of the gardens:

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Today I received a notice of code violations. Supposedly someone complained about my front yard, and now the town is giving me two days (!) to remedy the violations, or the town will come and mow the garden down and bill me for the pleasure.

The first violation is straightforward and easily dealt with. The town prohibits trees and shrubs from obstructing vision from private driveways and requires them to be no more than three feet in height. No problem – I try to keep the shrubs by the sidewalk trimmed for public convenience, but some of them are as tall as five feet. I’ll give them a bad haircut now, and then in the fall, as per usual, I will cut them to the ground (these species respond well to this kind of hard pruning).

It’s the next citation that I find very troubling:

According to the notice, “weed and plant growth” in excess of 10 inches is prohibited. Well, that would prohibit pretty much any garden, wouldn’t it? But they clearly misrepresented the text of the ordinance, the definitions in which read as follows:

All grasses, annual plants, trees or vegetation that are harmful to the public welfare, including stumps, roots, filth, garbage, or trash. The term “grass, weeds and plant growth” shall not include cultivated flowers, healthy trees, shrubs, or gardens.

Plant growth deemed by the Town of Tonawanda Code Enforcement Officer as potentially dangerous to the public welfare, or such plant growth that is an unattractive public nuisance or grows in an undesirable location.

In short, my garden is fully exempted from this ordinance. Furthermore, the code enforcement officer followed the wrong procedure in citing my property. From the ordinance:

B. Written notice may be given by registered mail addressed to the owner of the parcel of real property in question together with posting at the parcel of real property in question or by personal delivery to the owner. Service shall be deemed complete upon the deposit of the registered mailing in a postpaid envelope and the posting at the real property in question and, if by personal delivery, upon the delivery of notice in person to the owner of the parcel of real property.

C. Such notice shall specify the violation(s) as determined by the Code Enforcement Officer and shall direct the owner of the parcel of real property in question to remedy the violation(s) and bring the parcel of real property into compliance with the provisions of this chapter within 10 calendar days of service of notice.

The notice did not come by registered mail; it came by regular mail. The letter does not give me 10 days from the date of service; it gives me 7 days from the date on the letter (just 2 days from the date I received it).

I believe I am on firm legal ground. The concern, however, is that the town will come and mow down my gardens without due process. This has happened all over the country and in Canada. Here’s one example from Illinois, and here’s another from Toronto. The Environmental Protection Agency even provides advice to homeowners on fighting their town governments!

From a utilitarian perspective, government should probably be subsidizing my work rather than prohibiting it. I’m providing benefits to the community and the environment. I’m still optimistic that this will end well, that I’ll be able to get in touch with either the inspector or the mayor, and the town will come to their senses. If not… watch this space.

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Ron Paul has stepped into the continuing saga of the “ground zero mosque” with what seems to me to be a reasonable statement, albeit one that will not earn him too many friends on the Right.

Congressman Paul reduces things to their essentials:

The debate should have provided the conservative defenders of property rights with a perfect example of how the right to own property also protects the 1st Amendment rights of assembly and religion by supporting the building of the mosque.

The statement includes a direct shot at the Right and the Left

Conservatives are once again, unfortunately, failing to defend private property rights, a policy we claim to cherish. In addition conservatives missed a chance to challenge the hypocrisy of the left which now claims they defend property rights of Muslims, yet rarely if ever, the property rights of American private businesses.

Defending the controversial use of property should be no more difficult than defending the 1st Amendment principle of defending controversial speech. But many conservatives and liberals do not want to diminish the hatred for Islam–the driving emotion that keeps us in the wars in the Middle East and Central Asia.

Paul has little patience for the “sunshine patriots on both the right and the left who are all for freedom, as long as there’s no controversy and nobody is offended. The list of “sunshine patriots” now includes one Rand Paul, who hopes to become the Senator from Kentucky.

Is Ron Paul correct on this issue? From a libertarian perspective, it would appear that one could reach no other conclusion.  Or am I missing something?

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I like James Taranto’s take on Rand Paul’s view of the 1964 Civil Rights Act:

Far from being evasive, Paul has shown himself to be both candid and principled to a fault.

We do mean to a fault. In this matter, Paul seems to us to be overly ideological and insufficiently mindful of the contingencies of history. Although we are in accord with his general view that government involvement in private business should be kept to a minimum, in our view the Civil Rights Act’s restrictions on private discrimination were necessary in order to break down a culture of inequality that was only partly a matter of oppressive state laws. On the other hand, he seeks merely to be one vote of 100 in the Senate. An ideologically hardheaded libertarian in the Senate surely would do the country more good than harm.

As a matter of pure theory, it is wrong to use violence to force anyone to associate with anyone else. But in the context of U.S. history, it seems to me that a forceful, governmental response to ingrained discrimination was necessary.

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This post is simply meant to draw readers’ attention to the interesting conversation going on in the comment thread on the “Property and Serfdom” post below. Kyle Baxter asks:

If the original distribution is unjust (e.g. it depended on the violation of rights), but at some point just rules for trade were implemented (ones based on rights), does that make the resulting distributions increasingly just as you move away from the original distribution? That is, if 2009 is the “original” distribution date, but just rules are implemented in 2010, does 2020′s distribution become more just? 2030′s more so, and 2040′s even more just?

What implications do our answers to these questions have for our theory of property rights, and given a particular theory of property rights, for contemporary issues such as land reform and reparations?

And Mark Lebar makes the important point that emergency scenarios don’t necessarily show that rights aren’t absolute, merely that rights over tangible goods are bundles that can be apportioned differently in different circumstances.

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The distinguishing characteristic of classical liberalism from other liberalisms is its view of property rights. On the classical liberal account, a distribution of property is just if it is a consequence of just transfer, where transfer is generally just if and only if voluntary or appropriately compensatory for wrongs. As Nozick noted, this unpatterned, “side constraints” view of justice differs from the patterned, “end-state” view of justice found inAnarchy, State, and Utopia Rawls, for whom property should be redistributed as necessary to maximize the position of the “representative least advantaged person.”

Nozick did not address the issue of how property may legitimately be acquired in the first place. Locke believed that just acquisition occurred through “mixing one’s labor” with the earth. Locke also had a famous proviso, that just acquisition must leave “enough and as good” for others, to avoid waste. (However, at one point in the Second Treatise Locke seems to argue that the proviso becomes a dead letter once a society invents money.)

Nozick argues that the initial distribution does not matter, because “liberty upsets patterns.” He makes this point with the famous Wilt Chamberlain example. Imagine a world in which everyone has exactly equal resources. Now suppose that one man, Wilt Chamberlain, is exceptionally talented at basketball. People will come to watch Wilt Chamberlain play basketball and will voluntarily transfer a small sum, say $0.25, to him for this privilege. Very quickly, the old pattern of equality disappears as Wilt Chamberlain accumulates resources. To re-establish that pattern would require undoing the voluntary transfers that people have made to Wilt Chamberlain.

But is Nozick necessarily right that initial distribution doesn’t matter? What about property rights in land? If one person establishes control over a vast range of productive land, then on standard libertarian accounts the owner may require virtually any conditions (s)he might like in exchange for allowing others access to that land. Thus, the landowner may require would-be tenants to yield one-third of the value of their production and perhaps to make themselves available for security duty as well. By enjoying the fruits of others’ labor, the landowner is able to continue in enjoyment of the demesne and pass it down to future generations to do the same.

Are absolute property rights in land a road to serfdom? Or may property rights occasionally be set aside for other interests? If we allow that property rights are not always absolute, does our theory collapse into utilitarianism or egalitarianism, or can we build theoretical terraces on that slippery slope?

Nozick’s own theory has some intellectual resources to address this problem. Nozick adapts the Lockean Proviso to argue that appropriations may be set aside when they literally make others with access to them worse off than they would have been had the resource remained unowned and open-access. “Setting aside” the appropriation presumably means that current distributions may also be altered, perhaps temporarily.

Consider the following two scenarios. The first comes from a debate in Liberty magazine a number of years ago; the second comes from is rather like a discussion I recall from David Friedman’s book The Machinery of Freedom (corrected per David Friedman’s comment below).

Scenario A

Scenario B

You fall from a window of one of the top stories of a tall building. As you hurtle toward certain death, you reach out and grab a flagpole sticking out of another window, breaking your fall. The owner of the flagpole observes you clinging on for dear life and says, “I am the owner of that flagpole; let go!”

Should you let go?

In this scenario, you are the neighbor of a mad scientist who likes to sample the atmosphere around your house and test for the presence of the DNA of other humans. He knows that you and other neighbors will sometimes pass his house or breathe in its general direction, and as a result microscopic molecules containing their DNA float over his property line, invading his property. As an extreme hypochondriac, he cannot bear the thought of this happening.

He issues a decree to the entire neighborhood, including you: No one is to venture outside and exhale, and even exhaling indoors is risky, because the microscopic particles could find their way out of chimneys and other crevices and onto his property. If anyone’s DNA is found on his property, he threatens to defend himself from the trespass by all legitimate means.

Do you have a moral obligation to stop breathing?

Presumably anyone not blinded by ideology will answer “no” to these questions, conceding that property rights are not absolute. In the former case, at the moment of your hanging to the flagpole by dear life, the scheme of private property rights makes you worse off. Thus, by Nozick’s standard, it seems you have the right to expropriate the use of the flagpole until you no longer need it. At that point, let us surmise, the flagpole should revert to its original owner, and you should make compensation for any damages to it. In the second scenario, the mad scientist is engaging in illegitimate expropriation by trying to force other people to stop breathing, which would make them worse off than they would be if the scheme of private property rights did not exist.

This application of the Proviso is attractive because it imports some utilitarian-esque concerns (the scheme of private property rights must make everyone better off than they would be in the primeval world of open-access commons), while retaining the intuitively desirable features of libertarianism, most notably the right to dispose of your property as you see fit under almost all circumstances. Nevertheless, it requires giving up the fiction of absolute property rights and perhaps even opens the door to a kind of universal income guarantee as compensation for the private appropriation of land. Enter the left-libertarianism of Michael Otsuka, Hillel Steiner, Peter Vallentyne, and Philippe Van Parijs.

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To be honest, I’d prefer passage of open carry laws in states that do not allow it or require a permit to open carry.  I feel safer knowing who is packing and who is not. 

But here is an AP story on Arizona’s effort to expand government protection of the right to bear arms: http://news.yahoo.com/s/ap/20100416/ap_on_re_us/us_xgr_concealed_weapons_arizona.

According to the Brady Campaign, 35 states allow open carry with 3 forbidding it altogether.   

However, and this may surprise some, I am 100% in favor of laws that allow businesses, churches, and other property owners to bar gunholders from entry – whether concealed carry or open carry.  This is the only consistent property rights approach.  In other words, your right to bear arms only applies to public areas (excepting certain government spaces), your private property, and the private property of those who invite/allow you on it without telling you not to carry. 

I know this is wandering a bit, but no, I don’t agree with the Supreme Court’s rationale in Pruneyard Shopping Center v. Robins and would dislike seeing it expanded in the area of free speech or for a right like bearing arms.  In the words of Justice Chin in the dissent to Fashion Valley Mall, LLC, v. National Labor Relations Board, “Shopping centers are private property dedicated to doing business. Their owners should not have to permit all expressive activity that the California and United States Constitutions protect in public places. A shopping center owner should be allowed to enforce reasonable restrictions to protect its business activities even if the government could not impose similar restrictions.”

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