McDonald, The 14th Amendment, Civil Rights and Guns.

[rusty_rebar]

As I am sure many of you are aware, SCOTUS is about to make a decision in the McDonald vs. Chicago case. Many in the Gun Rights camp are quite excited about the possibilities, however I think this is really going to be more about the 14th amendment then the 2nd.

So I have a question.

Civil rights laws make it illegal to discriminate against someone, even for a private business owner. Meaning, I cannot refuse service to someone based on race, gender etc... Basically, discriminating would be a violation of an individuals civil rights. These civil rights are defined by the 14th amendment.

So, the owner of a business CANNOT refuse to serve women, just because he does not like women.

Now, if the 2nd amendment is incorporated against the states via the 14th amendment, that would make the keeping and bearing of arms a civil right.

If the bearing arms is a civil right, then the owner of a business CANNOT say "I don't want guns in my store", because he would be violating my civil rights.

Thoughts?

[friendly_iconoclast]

1. Not so. The Constitution is a restriction upon government.

You have no more 'right' to carry a gun into a business than you have a 'right' to throw campaign rally or make a speech in one.
(I know, some states exempt shoping malls and the like.)

[rusty_rebar]

4. So according to this logic....

... a business owner (who is not a government, therefore not restricted by the constitution) can say that you have no 'right' to come into his store. Even if his reasons for denying you access are discriminatory.

Don't get me wrong. I am against discrimination, and even if you were a business owner who hated <insert whatever here>, you are making a stupid business decision. Why would you cut your business off from any portion of the population? I mean, women, gay people and black people have the same money as everyone else, it spends just the same. So to do this would be to give an advantage to your competitors.

However, we cant have this both ways. It is sort of like the Republicans and Tea Baggers screaming "Keep the government out of my healthcare", but conveniently forgetting that restrictions on abortion are in fact the government being involved with healthcare.

So we have the same basic logical fallacy here. On the one hand people want to force a business owner to serve some class, even if the business owner does not want to. Yet on the other hand, you want to say, well a business owner has private property rights, so he can tell you if he wants guns in his store or not.

So what is it, does the business owner have property rights or not? Or are you saying that he has the rights that you like (having a no guns allowed policy), but not the rights that you don't like (refusing to serve someone because they are Mormon or something).

I am of the opinion that the business owner can in fact say, No guns allowed. Or even green shoes for that matter. It is his business, and he can serve or deny whomever he wishes. This includes the ability to discriminate due to Race, Religion, Sexual Orientation or any other arbitrary thing you can come up with.

As I stated earlier, this is a ridiculous business decision, but it is his business after all.

[friendly_iconoclast]

5. Does Fred Phelps have the 'right' to march in a Pride Day parade?

No. The courts have long made a distinction between private and public property, and public accomodations (stores, theaters, etc.) have a limited but definite right to ban certain things that would be acceptable on a sidewalk or park, for instance.

[rusty_rebar]

8. If the parade....

... is on public property, he should most definitely have the right to show up, and express his (wrong headed) views.

[X_Digger]

2. Nope, the 1964 CRA is what applies to public venues, not the 14th.

Specifically, Title II-

http://www.ourdocuments.gov/doc.php?flash=true&doc=97&page=transcript

SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

The only applicable thing about weapons and religion that would apply via Title II that comes to mind immediately are Sikhs and their kirpans.

http://www.chron.com/disp/story.mpl/hotstories/6200755.html

[TPaine7]

3. Nope, I must disagree.

You may have free speech rights, for instance, but a owner can establish a "no profanity" rule in his establishment. DU can kick people out for expressing Nazi views, and a theatre can kick you out for ANY speech.

[Euromutt]

6. As the previous posters have alluded, discrimination is based on what you are, not what you do

If you, as a private legal entity, run a business that is open to the general public, you are thereby bound to permit entry to anyone, regardless of what they are. But you can deny them entry on the basis of what they are doing.

Now, personally, I'm very far from sure I entirely approve of the current state of affairs. For starters, I'm strongly sympathetic towards the ACLU's opinion that places like shopping malls are de facto the "public square," and that the right to freedom of expression thus should (not "does," but "should") apply there. I also find it kind of inconsistent that religion is listed as a ground upon which discrimination is not allowed. After all, religion is not immutable like what sex, skin color or nationality you were born with; the very fact that there is such a thing as conversion is ample evidence that one's religious identity is a matter of choice, albeit a rather more far-reaching one than whether or not to wear a hoodie or go shirtless.

[TPaine7]

7. What of the proprietor with the kosher meat market in the mall

who has neo-Nazis who want to--non-violently and without any immediate physical threats--hand out pamphlets near his store entrance? Or even in his store?

What of his economic rights? And if the mall is the public square, why does he have a lease?

[Euromutt]

9. I should have been more specific: I meant the common areas of a mall

So not the stores themselves are the "public square", but the thoroughfares in between, and the seating areas of the food court. In that sense, our hypothetical kosher butcher (not that I've ever seen a butcher's shop in a mall) would be in the same position as a kosher butcher whose shop is on a public street.

I think there's quite a good argument to be made that the right to freedom of expression isn't worth very much if you can be prohibited from expressing yourself where anyone will actually be physically in a position to hear you. In that regard, I think there's room for maneuver in your hypothetical situation: namely, if the neo-Nazis are making our kosher butcher and his clientele uncomfortable (understandably so), then I think law enforcement (or mall security) could legitimately ask the neo-Nazis to hand out their leaflets somewhere else, less close to the kosher butcher's and the local synagogue, provided that other location gives the distasteful scumbags access to an at least equally large audience. (Note that I do say "access to"; freedom of expression doesn't guarantee you an audience, just the opportunity to reach one.)