Free Markets, Free People

property rights


5th Circuit rules guns aren’t “property-like”

The war against private property proceeds apace with the 5th US Circuit Court of Appeals deciding that while you have a right to keep and bear arms, that right doesn’t extent to you keeping or bearing a particular arm.  Check out how the AP professionally and reports this in an unbiased manner:

A federal judge correctly dismissed a lawsuit against the city of New Orleans by a man who claimed that local law-enforcement authorities violated his constitutional right to bear arms, a divided panel from the 5th U.S. Circuit Court of Appeals ruled Wednesday. With the backing of the American Civil Liberties Union of Louisiana, Errol Houston Jr. sued after the Orleans Parish district attorney’s office refused to return a registered gun that police seized when he was arrested in 2008 on drug and firearms charges that were later dropped.

Emphasis mine.  “Correctly”?  No opinion injected there, huh?

At least one judge didn’t share that opinion on the panel.  But back to the majority point:

U.S. District Judge Jay Zainey dismissed the claims in December 2010, saying Houston failed to allege sufficient facts to show how authorities violated his right to bear arms by retaining his pistol.

In its majority opinion, a three-judge panel from the 5th Circuit said some regulation of firearms falls outside the reach of the Second Amendment, just as obscenity and defamation aren’t protected as free speech by the First Amendment.

"The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense," Judge Rhesa Hawkins Barksdale wrote.

Emphasis mine. Well how the hell do you do that if you don’t enjoy a right to property, i.e. the right to the freakin’ gun necessary to exercise the right?

Imagine the police setting up a roadblock and confiscating all weapons while telling you that you’re still entitled to your 2nd amendment rights, just not the right to this particular gun for whatever reason they choose to invoke?

Seems to me the 5th Circuit would endorse that.

The dissenting judge wrote:

In her dissenting opinion, however, Judge Jennifer Walker Elrod said she disagrees with the majority’s conclusion that the Second Amendment doesn’t protect an individual’s right to a specific firearm unless the government has prevented that person from acquiring others.

Elrod argued the majority impermissibly treated the Second Amendment as a "second-class right" by carving out an exception.

"It is particularly unfortunate for our circuit to endorse the atextual, ahistorical rule that the Second Amendment does not protect particular firearms," she wrote.

More importantly, this is government deciding it can violate the property rights of a gun owner whenever it wishes too with no penalty for doing so. This isn’t a 2nd amendment case.  It’s a property rights case.

Remember my “hypothetical” about the traffic stop above.  It’s not too far off the mark:

Houston sued the city, District Attorney Leon Cannizzaro and former Police Superintendent Warren Riley in July 2009, nearly a year after Cannizzaro’s predecessor dropped the charges against him stemming from a traffic stop.

Houston claimed Cannizzaro’s office had a policy of retaining firearms following arrests regardless of whether charges are filed. During an interview in 2009, Cannizzaro said his office decides on a "case by case basis" whether to return confiscated guns.

"There is no policy that we will not return weapons," he said.

Screw your policy or lack there of.  The point is, Mr, Cannizzaro, you have no right to keep it.  Keeping it is theft and a violation of the owner’s property rights, plain and simple.

For once, I’m with the ACLU  … appeal this.  This is a gross miscarriage of justice.

~McQ

Twitter: @McQandO


Zuccotti Park cleared–enforcement of property rights? Or just the result of political pressure?

Mayor Michael Bloomberg finally made the decision to evict the OWS protesters from Zuccotti Park last night.  His decision, he claims, had to do with public health and safety.

Some time after 6 a.m., New York City Mayor Michael Bloomberg said in a written statement that while he supports the First Amendment rights of the protesters, his greater priority is protecting the public’s health and safety, and he took full responsibility for the “final decision to act.”

“Unfortunately, the park was becoming a place where people came not to protest but, rather, to break laws, and in some cases, to harm others,” Bloomberg said, noting that for some residents of the area, noise and unsanitary conditions of the Occupy camp had created “an intolerable situation.”

He added: “The First Amendment gives every New Yorker the right to speak out — but it does not give anyone the right to sleep in a park or otherwise take it over to the exclusion of others — nor does it permit anyone in our society to live outside the law. There is no ambiguity in the law here — the First Amendment protects speech — it does not protect the use of tents and sleeping bags to take over a public space.”

Well there is ambiguity (there’s also a right to peaceful assembly although it is arguable the assembly has been peaceful), but note the thing he doesn’t site – property rights.  Or at least not directly.  He sorta, kinda alludes to it when he talks about the “exclusion of others”.  That’s a privately owned park which has been literally taken over by the OWS group and its owners have been denied the ability to make decisions about its use.  Why not just say the occupiers (because that’s what they call themselves – perhaps squatters is a better description) have been declared trespassers and removed?  To easy?

One of the pernicious problems I see all the time when it comes to government officials is their selective enforcement of property rights.   It seems to me that once the exclusionary tactics were applied where those who owned the park were excluded from using it as they wish, they had every right in the world to demand the eviction of the protesters. 

I obviously don’t know what the company that holds those rights had to say because it seems they weren’t really even given a voice in that sort of decision.  On the other hand, had they decided that it was good use of their property and gone along with the OWS protesters, shouldn’t their decision about their property had some weight?

I guess what I’m getting at is that other than a mention here and there, no one knows much about the owners or their druthers.

I’m actually sympathetic with the city’s reasons for clearing the park.  I think Bloomberg is exactly right.  But my larger point is where are the property owners in all of this.  Why aren’t they an integral part of this process? 

Property rights have been under assault in this country for some time.   The abominable Kelo decision was the cherry on top of the sundae that has all but destroyed those rights.   More and more I see government deciding how private property will be used and only enforcing laws on trespassing and the like when it serves their purpose (in this case I imagine that the pressure from those who lived nearby finally got to the point that Bloomberg was forced to act).

The right to private property (and its exclusive use) is a foundational right from which many other rights spring.  Like so much in this country, government has moved in on that right and while giving it lip service has intruded to such an extent in its execution that it is arguable if the right can be exercised properly anymore.  When that right is subsumed, all of our rights are in jeopardy.

We’ll see how much they’re in jeopardy with the upcoming ObamaCare decision.  It will either give us a new lease on our rights or, it may end up being the final nail in their coffin.

~McQ

Twitter: @McQandO


Cuba allows people to exercise property rights again

You’re probably looking at the title and if you’re familiar with the story wondering why I announced it like that.

The story, if you’re not familiar with it, was reported today by AP in a story entitled “Cuba legalizes sale, purchase of private property”.

After the description of what Cuba will now allow, you run across this within the story:

"This is a very big step forward. With this action the state is granting property rights that didn’t exist before," said Philip J. Peters, a Cuba analyst at the Lexington Institute in Arlington, Virginia.

Have you picked yourself up off the floor yet?   That’s the most ridiculous statement you’re likely to see in some time (which is a bit surprising coming from someone at the Lexington Institute).

Let’s make something perfectly clear – property rights existed prior to and during the communist regime’s takeover.  What the communists did was prevent the exercise of the right through the use of force.  That’s entirely different than what Peters contends.  In fact, the AP title comes closer to the truth than Peters.  The communist regime had simply made the exercise of the right “illegal” and had used force to prevent the people of Cuba from exercising that right.   The right didn’t go away, just the ability to exercise it.

Now, surprise surprise, the communist regime has all but admitted it was a foolish thing to do and has again made the right “legal”.  Or said another way, they will no longer use the force of the state to prevent people from exercising their inherent right to property.

Oh, and as a bonus for the income equality crowd?  If you want income equality, Cuba is your place.  Everyone makes about the same there.  Check it out.

~McQ

Twitter: @McQandO


Observations: The QandO Podcast for 10 Jul 11

In this podcast, Bruce, Michael, and Dale discuss the L.A. Counties harrassment of desert dwellers, and the ongoing budget negotiations.

The direct link to the podcast can be found here.

Observations

As a reminder, if you are an iTunes user, don’t forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don’t have iTunes, you can subscribe at Podcast Alley. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here. For podcasts from 2005 to 2010, they can be accessed through the RSS Archive Feed.


Is A Man’s Home Still His Castle?

Originally posted at the Washington Examiner on August 28, 2010. Some edits have been made to the original article.

It’s an enduring doctrine in America that one’s home is off limits to prying eyes and ears, and can be defended to the death if necessary. It’s not strictly true, of course, and certain states have eroded the doctrine to a gossamer wisp of the core idea. Yet, we tend to operate on an almost instinctual presumption that, when we are on our own property, we are kings and queens of the castle.

Felicia Gibson clearly adhered to this principle, and it’s landed her in serious legal trouble (via Glenn Reynolds):

The resisting-arrest conviction last week of Felicia Gibson has left a lot of people wondering. Can a person be charged with resisting arrest while observing a traffic stop from his or her own front porch?

Salisbury Police Officer Mark Hunter thought so, and last week District Court Judge Beth Dixon agreed. Because Gibson did not at first comply when the officer told her and others to go inside, the judge found Gibson guilty of resisting, delaying or obstructing an officer.

Gibson was not the only bystander watching the action on the street. She was the only one holding up a cell-phone video camera. But court testimony never indicated that Hunter told her to stop the camera; he just told her to go inside.

Taking video of police stops is becoming more common with the ubiquity of cell-phone cameras and the like, and so is the backlash from law enforcement as has been amply covered by people like Glenn Reynolds (the famous Instapundit) and Radley Balko (from Reason Magazine). From the account given, it appears this why Ms. Gibson was arrested. What makes her case unique, however, is that she was on her own front porch when the encounter took place, and that she was taken into custody on a charge of “resisting arrest.”

Salisbury Police Chief Rorie Collins explained the North Carolina statute, under which Gibson was charged, as this:

“This crime is considered a Class 2 misdemeanor and involves:

“Any person who shall willfully and unlawfully resist, delay, or obstruct a public officer in discharging or attempting to discharge a duty of his office.

“Obviously, this charge is rather broad and can encompass many different types of actions that are designed to, or serves to hinder a law enforcement officer as he/she performs their duties.

“This charge is most commonly used in situations where a person who is being arrested refuses to cooperate and either passively or aggressively resists an arrest or tries to run away.

“Another very common situation in which this charge is used involves instances when an officer is conducting an investigation and the individuals with whom he/she is dealing provide a false identity when required to identify themselves.

“As you can imagine, there are also many other circumstances in which this charge would be appropriate.”

Chief Collins wouldn’t comment on the specifics of Gibson’s case, but did allow that, in general one does have the right to observe a police stop from one’s own property. He also seemed to suggest that a charge of resisting arrest may still be appropriate in a situation where bystanders refuse to obey police commands to exit the area for their own safety.

“However, just as with many other scenarios, it is important to remember that every situation is based upon its own merits/circumstances. There are some circumstances in which the police who have stopped the vehicle in front of your house may determine that it is in the interest of safety (the officer’s, yours or the individual stopped) to require that folks move. As with other circumstances, it is best advised that an individual merely obey by the officer’s commands.”

Perhaps on a public street the Chief might have a point, in that a colorable argument could be made that the police are charged with protecting the safety of the public highways and byways, even where the only danger is self-imposed.

But to arrest someone who is unmistakably on their own property, and doing nothing remotely illegal, is an abuse of power pure and simple. Even if it were true that Gibson was endangering herself by witnessing the traffic stop from the confines of her front porch, how could that possibly be construed as “resisting arrest” or “obstructing the police” without eviscerating everything that the concept of private property (not to mention plain old individual rights) stands for? Taking such a risk is not illegal. Doing it while occupying one’s homestead should be recognized as unassailably within one’s rights.

Since it appears that neither the police nor the district attorney’s office can be shamed into refraining from such power abuses, perhaps it will take a fat lawsuit for violations of Gibson’s (et al.) constitutional rights to get their attention.

The castle walls may be crumbling and decayed, but the invaders can be fought back and the walls rebuilt.

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