The Second Amendment and the Government as Proprietor

Some of the comments about the national park Second Amendment case show a familiar pattern. “Isn’t the Federal government acting as the property owner here? I thought nearly every jurisdiction allowed owners to forbid concealed carry by posting clear and prominent signs at each entry.” “The federal government as land owner can’t ban Black people from entering parks nor can they regulate their speech. Treating the government as a land owner doesn’t give it the right to deny fundamental rights.”

I’m not sure I can persuade people about what the right answer ought to be in such cases as a matter of constitutional first principles; I don’t think I even know the answer myself. But the claims also seem to be at least partly about what is allowed by existing constitutional law (existing constitutional law outside the Second Amendment area, since the Second Amendment law is only in its very early stages of development). And it turns out to that existing constitutional law is much more complicated than either the “government is just like any property owner” or “the government’s status as property owner is irrelevant” polar extremes.

Let me then, repost these passages from Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009); they don’t resolve the question of how national parks should be treated, but I hope they do show that the question can’t simply be resolved either by assuming that the government has unlimited power over its property or that the government has no extra power over its property.

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A restriction [on the exercise of a constitutional right] might also be justified [under normal constitutional principles] because the government is acting not as sovereign — outlawing, taxing, or imposing liability on private citizens’ behavior — but as subsidizer, landlord, employer, and the like. This distinction has been most clearly developed in free speech cases: If I wear a jacket with a vulgarity printed on it, the government may not throw me in prison, but it likely may fire me from my government job, especially if I wear the jacket to work. It might even be able to bar such jackets from certain “nonpublic forum” property.

Likewise, the government may not criminalize abortions, but it may bar them from government-owned hospitals, or even from hospitals built on land leased from the government. The government as employer has more power to search its employees’ offices than it does to search private citizens’ offices, and more power to search people entering government buildings than it does to search people entering private buildings. The government as employer has more power to restrict its employees’ choices to send their children to private schools than it does as to private citizens’ choices. The same is likely true for other rights, such as the right to marry, or the right to religious freedom under state constitutions that follow the Sherbert/Yoder model.

Some might argue that such restrictions are permissible because they are not that burdensome, given that people can still exercise the right (for instance, get an abortion) off government property. Or some might argue that the government has an especially strong reason for imposing the restriction (for instance, the desire to keep government workplaces running smoothly).

But many of the decisions are most plausibly explained by a judgment that even burdensome restrictions may be more restricted by the government as proprietor than by the government as sovereign, even when the government interest is the same. For instance, insulting labor picketing (for instance, with signs calling strikebreakers “scabs” or “traitors”) outside a government office, or similarly unpleasant public-issue picketing, might affect employees’ morale more than would one coworker’s rudeness. The picketing, though, is generally protected, even when it substantially hurts morale; the coworker speech (on the job or even off the job) is often unprotected.

And having such separate standards for different government roles may well make sense, both to give the government more power when it comes to accomplishing its democratically determined goals on its property and with its wage payments, and to keep this power from bleeding over to controls of private citizens’ behavior on private property. Draft office employees shouldn’t be able to interfere with office morale by telling their colleagues that the draft is slavery, or interfere with office efficiency more broadly by telling would-be registrants the same. But similarly morale-reducing speech by picketers outside the door, or by influential media commentators or political leaders, should be protected despite its effect on draft office efficiency.

A unitary standard might overprotect speech by employees but, just as likely, it might end up underprotecting speech by private citizens. For some classes of government property the government might not have special powers acting as proprietor. Free speech doctrine, for instance, treats the government acting as proprietor of “traditional public fora” — chiefly public sidewalks and public parks — the same as the government acting as sovereign. Fourth Amendment doctrine generally applies to public sidewalks to the same extent that it applies to unenclosed places on private property. The First and Fourth Amendments might also apply to the inside of public housing, much the same way as they apply to privately owned homes.

[Equal Protection Clause bans on race and sex discrimination likewise apply to the government as proprietor as well as to the government as sovereign.] And constitutional rights that inherently involve government adjudicative processes, such as the right to a jury trial, are naturally not diminished by the government’s owning the courtroom. Nonetheless, there is both precedent and reason for allowing the government acting as proprietor extra power to restrict the exercise of many constitutional rights on its property.

This suggests that separate government-as-proprietor standards may likewise be proper for the right to keep and bear arms, whether in government buildings, by government employees, in government-owned parks, in government-owned housing, and so on.

Some constraints on government power as proprietor may also be proper, since people’s need for self-defense can remain even on government property. And it may well be that for some of this property (such as public housing or national parks) the constitutional analysis should be no different than on private property. But there is little reason to assume that the rule should always be precisely the same whether the gun possession is on private property or on government-owned property….

Public housing might [also] be treated specially, because it is a home as well as a government building, or because it is the sort of government benefit that is unusually important to those who use it. This has been the view of cases striking down at least certain kinds of speech restrictions and search and seizure policies in public housing.

But still, while the Oregon Attorney General [in an opinion discussed slightly earlier in the article –EV] probably reached the right result in concluding that public housing authorities can’t require their tenants to surrender the right to bear arms, the unconstitutional conditions analysis in that opinion too categorically rejects the government-as-landlord claim, just as the Michigan opinion quoted above too categorically rejects the constitutional right claim.

It’s not clear to me how other public property should be treated: Should the government be allowed to ban guns on government-owned recreational land, whether a city park or a national park, either by insisting that people who want to use the land must waive their right to bear arms, or by otherwise concluding that there is no right to bear arms in such places? As a condition of going onto a public university campus, which might have a considerable amount of open space and parking areas where crime is not uncommon? In public university dorm rooms, where one state attorney general’s opinion suggests gun possession is constitutionally protected? As a condition of going onto a public primary or secondary school campus, or into a government office building, especially when this requires walking unarmed through a potentially dangerous parking structure? Courts need to work out a government-as-proprietor doctrine for the right to bear arms much as they have done for the freedom of speech.