The Second Amendment and Business Owners....

The Bill of Rights protects certain - wait for it -  RIGHTS.  Non-negotiable, so-called inalienable rights.  Natural rights, not legislated privileges.  They are:

First Amendment – Establishment Clause, Free Exercise Clause; freedom of religion, speech, press, and assembly; right to petition.

Second Amendment – Militia, Sovereign state, Right to keep and bear arms.

Third Amendment – Protection from quartering of troops in peacetime.

Fourth Amendment – Protection from unreasonable search and seizure.

Fifth Amendment – Due process, protection from double jeopardy, self-incrimination, eminent domain.

Sixth Amendment – Criminal trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel.

Seventh Amendment – Civil trial by jury.

Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.

Ninth Amendment – Protection of rights not specifically delegated to Congress in the Constitution.

Tenth Amendment – Powers of States and people.

In today's political climate, however, all too many politicians and citizens have taken the attitude expressed by Capt. Barbosa in the first Pirates of the Caribbean movie:  "...the code is more what you'd call 'guidelines' than actual rules.”

This attitude is nowhere as evident as when discussing the rights of business owners and the rights of those who carry firearms - employees and clients - in accordance with the provisions of the Second Amendment.

We frequently see and hear remarks like the following: "I would be upset if the government tried to tell me how to run my business..." 

The fact of the matter is that the government ALREADY tells one how to run their business - in ways that are at-odds with the Constitutional protections afforded private citizens on property that is truly private. It requires business entities to construct bathrooms a certain way. It specifies how many handicap parking spaces one must provide. It requires one to allow service animals (even in a restaurant), and prohibits one from discriminating in hiring - meaning that one can be forced in some instances to hire people with whom one might not normally associate in a truly private setting where the Constitutional right of association (First Amendment) is protected. Additionally, business entities may not discriminate against customers based on race, ethnicity, religion, etc. - people with whom a private citizen might not choose to associate in the privacy of their home.  These laws serve to protect the civil rights of employees and clients. 

In short, civil rights, which the Bill of Rights establishes (including the civil right to bear arms), have been legally elevated above the rights of business entities. 

Of all of the rights specified in the Bill of Rights, the Second Amendment exists to insure that other rights - including property rights - are secure. One must be able to defend that which belongs to one's self.  Without a means of defense, all other rights - including property rights - are vulnerable.  In other words, the right to own property exists only insofar as one is able to DEFEND that property.  This includes the right to defend that property which is most precious to every person, their own body.  As was observed by Bastiat in his work, The Law:

"Man can only derive life and enjoyment from a perpetual search and appropriation; that is, from a perpetual application of his faculties to objects, or from labor. This is the origin of property. But also he may live and enjoy, by seizing and appropriating the productions of the faculties of his fellow men. This is the origin of plunder. When does plunder cease, then? When it becomes more burdensome and more dangerous than labor.....God, has bestowed upon every one of us the right to defend his person, his liberty, and his property, since these are the three constituent or preserving elements of life; elements, each of which is rendered complete by the others, and that cannot be understood without them. For what are our faculties, but the extension of our personality? and what is property, but an extension of our faculties?...every man has the right of defending, even by force, his person, his liberty, and his property."

The right to protect one’s body does not end at the doorway of a business, whether entering as an employee or a client.

The absolute necessity of the Second Amendment is found in the terminology contained therein.

The Second Amendment states, “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”  As used in a legal context, as is the case in the Second Amendment, the phrase "shall not" indicates that the provision is non-negotiable; absolute; mandatory. When legislators wish to convey the unconditional, mandatory nature of a law, they insert the phrases "shall" or "shall not". NO ONE has the authority to abridge the practice of the right delineated in the Second Amendment - "...shall not be abridged." This is an absolute statement. Congressional acts restricting the right guaranteed in the Second Amendment using the Commerce Clause of the Constitution (using the Constitution against itself) are in violation of protections explicitly stated in the Ninth Amendment of the Constitution: "The enumeration in the Constitution, of certain rights [i.e. congressional authority], shall not be construed to deny or disparage others retained by the people." The Second Amendment right to bear arms is one of the rights "retained by the people." And there is that pesky legal phrase again: "shall not". The Bill of Rights is not a smorgasbord from which we choose which rights we will protect.   One may choose not to practice a right, but that choice not to practice rights guaranteed in the Constitution in no way infringes on or negates the practice of Constitutionally-protected rights by others.

While business owners (this author has been in that position himself) might wish to argue that their business is private property in the same way as their home, there are an overwhelming variety of laws governing business entities that say otherwise.  As has been observed previously, those laws exist to protect the civil rights - the rights preserved in the Bill of Rights - of employees and clients.  Business entities, places of public accommodation, do not enjoy the same level of Constitutional protection as that afforded to individual citizens. While that may be hard for some to swallow, even a cursory look at US business and civil rights law will bear this out.

The Second Amendment and the Legislator.....

In 1764, Cesare Bonesana, the Marquise of Beccaria, published a book entitled, Of Crimes and Punishments.  As its name implies, it is a treatise on crimes and appropriate punishments, the reasons underlying crimes, and the rights of citizens to protect themselves as a deterrent to crime.  Remember that date of publication.  1764.


On pages 83-84, Bonesana made the following observation in a section entitled, "Of false ideas of utility":

A principal source of errors and injustice are false ideas of utility. For example: that legislator has false ideas of utility who considers particular more than general conveniencies, who had rather command the sentiments of mankind than excite them, and dares say to reason, `Be thou a slave'; who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it.

The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty?

It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons. (ephasis added)

Translation:  it is when legislators try to protect us from every conceivable evil that they cause the most damage.  It is then that they begin to enslave the populace by building fences against imaginary ills, rather than empowering the citizenry to exercise their own judgements in their own defense.  It is those kinds of laws that require the citizen to rely solely on the government for their protection, disarming them, and, therefore, empowering the criminal - the law of unintended consequences.  As a result, the governed are deprived of their liberties, while the criminal is given free-reign to terrorize those who have been so enslaved.


The Second Amendment exists for this very reason.  Our freedoms of religion, speech, assembly, press, due process,  protection from illegal search and seizure, all are based on our ability as individual citizens to prosecute those rights - by force of arms if necessary.  Our Bill of Rights is the only document of its kind that gives the ordinary citizen the right to take the defense of those rights into his or her own hands, to protect those rights from ALL who threaten them, whether from enemies foreign or domestic, private or public.


Think about the following statements made by past leaders of our great republic:

"That the Constitution shall never be construed to authorize Congress to infringe on the just liberty of the press or the rights of conscience; or to prevent ‘the people’ of the United States who are peaceable citizens from keeping their own arms…" -- Samuel Adams

"This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction" -- St. George Tucker, Judge of the Virginia Supreme Court and U.S. District Court of Virginia in Blackstone Commentaries, 1803

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms." -- James Madison, Federalist, No. 46.

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." -- Tench Coxe in "Remarks on the First Part of the Amendments to the Federal Constitution," under the pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789.

"The great principle is that every man be armed.... everyone who is able may have a gun." -- Patrick Henry

Those who downplay the critical importance of the Second Amendment, as we hear with such increasing frequency these days from legislators, the media, and even our fellow citizens, truly misunderstand what is at stake. In the words of the Preamble to the Bill of Rights:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.