Fight over Tennessee's "Employee Safe Commute bill" provides food for thought for Ohio legislators and business-owners

The following was prepared by the Tennessee Firearms Association's Legislative Action Committee.

Some permit holders and firearms owners are giving pause to support of the Employee Safe Commute bill (SB3002 HB 3560). They are asking questions that some in the legislature who are true conservatives are concerned with. These legislators are not the ones opposing this legislation because Big Business has told them to do so - those legislators are simply doing nothing more than selling their votes for corporate money. Aside from those who sell their services for money, there are some legislators who are truly valuing both rights and trying to figure out how to address the Employee Safe Commute bill. I am in that last camp but I have made my decision.

First, the issue was framed by Senator Jackson 3 years ago not as one right "trumping" another but the balancing of important rights which is something that must happen even with constitutional rights. Take for example the limits on the First Amendment right of free speech which, although broad, is not absolute as we all know from the example of yelling fire in an auditorium full of people.

Now, let's examine the current source and status of the rights we are discussing.

On the issue of property rights, the courts have made clear that property rights are protected most frequently by reference to the Fifth Amendment and the due process clauses. Thus, rights in property may not be taken by the government absent just compensation in a general sense. That pertains to both real and personal property (e.g. cars).

However, our system does allow government to regulate the uses of property under its police powers. Thus, real property is subjected to health and safety codes (building codes); zoning codes (which often exist to balance property rights of geographically related or adjoining property owners); land use codes; the ADA; as well as other laws such as those that address smoking, environmental impact, aesthetics, handicap access, occupancy, noise, nuisance, light ordinances, and the list goes on. With personal property, such as cars, we have occupancy, licensing, smog, financial responsibility, speed and safety regulations, among others.

Also note that in human history, there has been no natural nor divine right to absolute ownership of property. Certainly, in many eras, the rights in property were only absolute in the government - not the citizens. It is indeed a secular determination of relatively modern creation that the citizens have claimed and been secured by government in individual ownership and control of property as an incident of citizenship.

Ultimately, the point is that there is no constitutional or at this point statutory provision which provides that rights in real or personal property "shall not be infringed."

Another right that we are discussing is the inherent if not instinctive capacity and right of self-defense. This right is so fundamental as to be instilled in us by God as our creator. No human invented the concept of self-defense as, indeed, in exists in substantially all scientent beings. Substantially all beings will react instinctively in self-defense.

On the right of arms, our Founders viewed it in two respects. One, as incidental to the wisdom of God to instill in all of us the instinct of and for self defense. We are not taught to recognize and flee from danger, we know it instinctively and generally respond without premeditation. We must learn to manage that instinct if we elect to do otherwise than flight.

Thus, in that regard, the Founders declared and the states ratified that "arms" are the only item of personal property expressly protected under the union and many State Constitutions. The second and primary context within which the Founders established the 2nd Amendment related to the political right of the citizens to change and displace the institutions of government itself - just as they had just done with England.

In some instances, rights are limited or balanced against other rights. For example, real property rights are balanced against rights of adjoining landowners owners. 2nd Amendment rights are balanced to an extent under the Police powers for those who are rendered infamous.

Now, turning to the question of the Employee Safe Commute bill. The bill does not require an employer to hire anyone. The employer has the capacity to hire those who he/she/it desires to employ. The bill does not require the employer to provide on-site parking. The bill does not require the employer to provide "secured" parking. The bill does not require the employer to affirmatively do anything at all nor to assume any material or quantifiable risk.

However, when an employer allows or requires employees to park on its real property (a voluntary decision of the employer), this bill would prohibit the employer from attempting to regulate the employee's property rights in his or her car/truck/motorcycle/etc particularly as pertains to the legally permissible transportation of firearms. The bill does not require the employer to allow the employee to take the firearm beyond the personal property zone of the car.

So, for those wrestling with this it is almost like the game of rock-paper-scissors but that assumes all three components are in fact equally protected rights, but they clearly are not.

So, as pertains to the car and the real property, which trumps? When the real property owner invites, requires or allows the employee to commute does the employer have the right to infringe the rights of the car owner relative to the legally possessed contents of the car while it is parked? No because those are essentially co-equal rights and the rights of the real property owner as to the type, color, size, tires, and contents of the employee's car are not subject to infringement merely by the required or permissive parking.

As pertains to the real property rights and the 2nd Amendment rights, which trumps? Is it the assertion of the real property owner who voluntarily employs another that by voluntary employment the employee thereby surrenders the right of self-defense? Is it that the employee surrenders the right to select among those legally possessed means of self-defense when they accept a job offer - if so, do they also surrender the right to resist robbery, rape or murder while employed?

I am not saying that self-defense completely trumps real property rights - certainly not to the extent that government already feels and demonstrates, perhaps unconstitutionally, a willingness to infringe, restrict and exercise dominion over real property rights.

What I am saying is that a reasonable constitutional balance of these rights must take into consideration the differential degrees of constitutional protections given by the courts to 2nd Amendment and the rights in real and personal properties. There is no material infringement of the employer nor demonstrated risk to the employer from this balancing. There is however a material risk - risk of impaired capacity for self-defense - to the commuting employee.

So, does a real property owner - one who voluntary employs others and expects them to commute to work - have the right to infringe or regulate the property and self-defense rights of the employee particularly when the "infringement" if any to the employer poses no substantial or material infringement of its rights. For me, the answer is no. I will defend property rights even against the current infringements of government but I am comfortable at this point with the balancing of real property rights of employers in business and commercial properties where they have chosen to employee individuals whom they know have rights of self-defense and rights in their personal property that they will be using to commute and park at the willing acceptance of the employer against the rights of those same employees to defend themselves while engaged in off-premise commuting.

And a final observation. We are hearing these elected officials starting to hedge on the breadth of the bill and, when they do, they almost immediately mention properties owned by the government. For me, the government has no property rights - the citizens own the property and government is but a mere steward. The 2nd Amendment expressly addresses and prohibits the infringement of 2nd Amendment rights by government entities and yet those are the very examples that are being mentioned at this point by government officials who apparently do not give deference to the 2nd Amendment's unqualified denial ("shall not be infringed") of its capacity to infringe the 2nd Amendment.

Some will disagree and assert that the real property rights of employers trump the God given instinct of self-defense and the 2nd Amendment declarations of the Founders. When they do, consider the depth of their considered analysis or whether its a mere unsubstantiated assertion.

Related Article:
August 29, 2005 - When it is ok to be against private property rights?