My brother in Maine called this conflict to my attention, which calls for libertarian analysis. Maine’s House looks to be on the verge of passing a law that prevents owners of private housing who accept public housing vouchers from barring gun possession on their property in the lease agreements. Maine law allows gun carry without a permit except in prohibited spaces, one of those being “Private property when prohibited by the property owner”. The bill being considered removes that proviso and overrides the property owner’s right to deny guns on his property.

I view the link to the public housing voucher as a very weak rationale whose aim is to thwart the lessors’ property rights. The bill being considered implements the same kind of property rights override as law that forces a lessor to rent to any and all comers or a law that forces business owners to serve any and all potential customers under the notion that their rental and business associations with people are deemed “public” and therefore subject to the state’s rule and rules. That notion is fundamentally an anti-freedom idea and anti-libertarian, as I see it. Any idea that seeks via force to construct society along the lines preferred by a majority, in the process suppressing the non-violent activities of a minority, is aggressive and anti-libertarian.

The notion that the state or some legislature can lawfully or should determine “public-ness” or foster “public-ness” in these market exchange activities is anti-libertarian, most basically by thwarting the freedom to live one’s own life as one sees fit through non-violent exchanges and interactions. In libertarian thought, a prospective lessee has a right to sign or not sign a lease that limits his activities on the leased property, and a lessor has a right to bargain for such limitations or have none. Under this theory, the state upholds no basic law by inserting its rules and penalties into such processes. Under this theory, the state’s rightful power to do so must be questioned at its root and has to be denied unless some foundation for it in law can be found.

This is precisely where the debate has to be joined. For example, a bill supporter may argue that public safety demands that gun possession be allowed on all property, even rental property. This argument cannot be dismissed out of hand. That a state controls a sphere of society having to do with “public safety” has a very long history. The state’s police power is embedded in American life and the Tenth Amendment provides it with support at the constitutional level. Limitations appear in the Ninth and Fourteenth Amendments. If in one’s reasoning or political theory, one does not go all the way to some version of society without a state, then the question of limitations on each state’s police power needs to be examined, as, for example, in Randy E. Barnett’s article.

I’d argue that public safety is not threatened or diminished when lessors retain the right to forbid guns on their property. Whoever enters that property or leases it knowingly assumes whatever risks accompany such a ban. The liability shifts away from the lessor contractually as long as this ban is made known and/or is committed to contractually. That is to say, the space of “public safety” effectively goes to zero when private parties commit to their own arrangements on their property. The state has no rationale for intruding and altering these exchanges unless they are shown to be causing some violence against innocent third parties. If that happens, courts provide a remedy, at least in theory.

If the safety argument is meritorious in the eyes of the Maine government, then Maine should logically drop the other space limitations in its current gun carry law. Then gun carry would be permitted in courthouses, state offices, state parks, schools, etc. Moreover, there would arise an issue of gun carry on federal buildings located within Maine’s borders.

It might be argued that the Second Amendment language extends gun carry to all spaces and overrides any individual state’s law. This approach raises questions about the meaning of the Second Amendment and how it is to be reconciled with the Ninth, Tenth and Fourteenth Amendments. In my view, the right to keep and bear arms is not unrestricted, by which I mean that the right can be limited by a property owner. If a property owner cannot restrict who or what enters his property, this certainly diminishes his property rights. Property of an owner becomes non-property of that owner if he has little or no say over its control. If the Second Amendment allows such a law, then the law becomes a “taking” and conflicts with the Fifth Amendment’s takings clause.

So, who has precedence, the gun owner or the property owner? There are three lines of thought, all concluding that the property owner has precedence. One, libertarian theory says that the property owner has precedence because (a) contractualism reduces the public space, and (b) state intrusion and/or aggression is denied. Two, the very basic and ancient notion of property itself, a basic building block of our society and its progress, demands that property rights be maintained. Three, within the limited scope afforded by the U.S. Constitution, the Second Amendment cannot be regarded as overriding other amendments that limit the state’s police powers.

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