Guns and the Right to Exclude: Saving Guns-at-Work Laws from Cedar Point's Per Se Takings Rule
The Supreme Court’s decision in Cedar Point Nursery v. Hassid has left considerable uncertainty in the realm of takings law. In Cedar Point, the Court announced a new rule that government-authorized physical occupations of property, even temporary ones, constitute per se takings. But the Cedar Point decision left significant questions unresolved regarding the scope of its per se takings rule and its various exceptions.
To resolve these questions, this Comment looks to the example of guns-at-work laws. Enacted by about half of the states, guns-at-work laws protect the right of a business’s employees, customers, and invitees to store firearms in private vehicles, even if those private vehicles are on company property (e.g., parking lots and parking structures). In addition to having important public safety implications, guns-at-work laws serve as a fruitful example to understand takings doctrine.
Relying on this example, this Comment reaches three conclusions regarding takings doctrine and its application to guns-at-work laws. First, government-authorized physical occupations, even seemingly trivial ones, can constitute per se takings. This suggests that at least initially, guns-at-work laws constitute per se takings. Second, when applying the open-to-the-public exception, courts should look to the subsections of a business and not attempt to weigh between subsections to determine the character of the business as a whole. Consequently, courts should treat employee-only parking lots and parking lots open to the public differently for the purposes of the open-to-the-public exception: the open-to-the-public exception exempts parking lots open to the public, but not employee-only parking lots, from Cedar Point’s per se takings rule. Finally, the longstanding-restrictions-on-property-rights exception only requires a contemporary law to have a historical analogue, not an exact historical match. Thus, Founding Era militia laws are a similar historical analogue to guns-at-work laws. Consequently, guns-at-work laws are not a per se taking under Cedar Point.