has been upheld by the Tenth Circuit, in Ramsey Winch Inc. v. Henry. The court of appeals rejected challengers' Takings Clause claim, Due Process Clause claim, and Occupational Health and Safety Act preemption claim.
The decision reverses a contrary federal trial court decision, and agrees with a federal trial court decision from Florida (Florida Retail Federation, Inc. v. Attorney General, 576 F. Supp. 2d 1281 (N.D. Fla. 2008)). Some excerpts:
Here, the Amendments conflict with no OSHA standard. Moreover, the Oklahoma Court of Criminal Appeals defined the Amendments as "public crimes" of general applicability "concern[ing] protection of the community as a whole rather than individual citizens." Thus, while the Amendments may "have a 'direct and substantial effect' on worker safety, they cannot fairly be characterized as 'occupational' standards, because they regulate workers simply as members of the general public." The district court's decision interferes with Oklahoma's police powers, and essentially promulgates a court-made safety standard -- a standard which OSHA has explicitly refrained from implementing on its own. Such action is beyond the province of federal courts.Thanks to the indispensable How Appealing for the pointer.
In sum, the facts before us do not approach the level necessary to overcome "the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act." We understand Plaintiffs may disagree with the wisdom of the Amendments. Our task, however, is not to second-guess the Oklahoma legislature, but rather to interpret the Congressional intent behind the OSH Act and its general duty clause. Accordingly, we hold that Congress did not clearly intend the OSH Act to preempt the Amendments....
A per se taking in the constitutional sense requires a permanent physical occupation or invasion, not simply a restriction on the use of private property.... [T]he Amendments (1) apply to all property owners, not just Plaintiffs, (2) merely limit Plaintiffs use of their property, and (3) do not require Plaintiffs to deed portions of their property over to the state for public use.
Rather, the facts here are more analogous to Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). In Pruneyard, California's constitutional protection of free speech rights prevented owners of a private shopping center from prohibiting the circulation of petitions on the owner's property. Despite the fact that individuals circulating petitions may have "physically invaded" the owner's property, the Supreme Court held that California's requirement that property owners recognize state-protected rights of free expression and petition "clearly [did] not amount to an unconstitutional infringement of appellants' property rights under the Takings Clause." As in Pruneyard, Plaintiffs have not suffered an unconstitutional infringement of their property rights, but rather are required by the Amendments to recognize a state-protected right of their employees. See id. at 81 (noting that the state may exercise its police power to adopt individual liberties more expansive than those conferred by the Federal Constitution). As such, we conclude that Plaintiffs have not suffered a per se taking.
Plaintiffs argue that, even if the Amendments are not a per se taking, a taking has nonetheless occurred under the standards set forth in Penn Central.... The major factors under the Penn Central [regulatory takings] inquiry are (1) "[t]he economic impact of the regulation on the claimant," (2) "the extent to which the regulation has interfered with distinct investment-backed expectations," and (3) "the character of the governmental action." ... First, the only economic impact cited by Plaintiffs is the general claim (located in a footnote of their brief) that allowing firearms onto an employer's property inevitably increases costs linked to workplace violence. A constitutional taking requires more than an incidental increase in potential costs for employers as a result of a new regulation. Second, Plaintiffs do not assert any interference with their investment-backed expectations, and, therefore, "have failed to demonstrate that the 'right to excludeothers' is so essential to the use or economic value of their property that the state-authorized limitation of it amount[s] to a 'taking.'" Third, the governmental action at issue here involves "public crimes" of general applicability "concern[ing] protection of the community as a whole rather than individual citizens." Plaintiffs must expect "the uses of [their] property to be restricted, from time to time, by various measures newly enacted by the state in legitimate exercise of its police powers."
[As to the Due Process Clause claim, w]e need not decide the long-running debate as to whether allowing individuals to carry firearms enhances or diminishes the overall safety of the community. The very fact that this question is so hotly debated, however, is evidence enough that a rational basis exists for the Amendments. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926) (noting that if a regulation is fairly debatable, the legislative judgment must control). In addition to the Amendment's purpose of increasing safety, one could argue that the Amendments are simply meant to expand (or secure) the Second Amendment right to bear arms. See Pruneyard, 447 U.S. at 81 (noting that the state may exercise its police power to adopt individual liberties more expansive than those conferred by the Federal Constitution). Because we cannot say the Amendments have no reasonably conceivable rational basis, Plaintiffs' due process claim must fail.