Firearms, automobiles, and invisible errors.

On the last day of the rapid-fire, no-way-to-keep-up-unless-you're-at-the-capitol, legislative session, SB 1168, a bill prohibiting property owners or tenants from forbidding storage of firearms in locked cars or motorcycles parked on their lots, was passed by the House and Senate.

The bill attracted some rather odd opposition, including that of the Goldwater Institute, which offered to file Private Property Rights Protection Act (2006 Prop. 207) claims on behalf of property owners opposing the bill. Their estimate of the value of the claims: $263 million!

The Goldwater Institute is an oddball hybrid libertarian/conservative think-tank. Like most think-tanks, it does a lot of working backwards from a desired conclusion and choosing methodologies to suit. And like most think-tanks it ends up with some really sharp people (e.g. Matthew Ladner) but many who wouldn't make the cut in the world of true scholarship (e.g. Byron "They're going to regulate our breath!" Schlomach--trust that I'm pulling punches in his case.) But the usual problems aren't what's at work here: what's at work is the silly principlism that dominates most popular libertarian and much right-wing thought.

To think according to heuristic is human, but libertarians and right-wingers both like to elevate some of these heuristics to the status of "principles", which are inviolable rules. Taking stands "as a matter of principle" is considered a mark of virture among the vulgar in both crowds: rather than thinking the strange cases through, apply the "principles" blindly. This happens despite both libertarian and right-wing philosophers' recognition of tradeoffs and conflicts in law. (Law professors and analytic philosophers both love the tricky cases.) I suspect--and I'd love to see a social-scientist tackle the problem--that underlying this is a desire for "moral clarity". Principles, such as "property rights are absolute control", have moral clarity. Casuistry, although the foundation of our legal tradition, inherently recognizes lack of absolute moral certitude. Recognition of tradeoffs destroys moral clarity altogether.

The $263 million figure has been left unexplained to date, and is almost certainly glibertarian hyperbole--the pattern among libertarians and conservatives is to overstate their weak cases. E.g. "Global Warming is Teh Hoax", "Public Schools are Socialist Indoctrination Camps", etc. A hint: invisible acts do not diminish a property owner's use rights. Storage of a firearm out of sight in a locked car is an invisible act; in ordinary circumstances the act of parking is no different whether the trunk is empty, contains a firearm, or a toaster. As I understand it, invisible harms, invisible diminishment of use, has $0 value in our legal tradition. We do not consider sin, that is to say, "Invisible Error", an object of law.

Of course, there are circumstances in which this could be an actual loss to property owners: someone intent on using a firearm to commit a crime decides to not bring his own, and instead starts breaking into auto trunks, gets lucky, and finds a weapon. I'd be willing to support compensation if that happens. And I'd even support compensation for assuming this risk--but it's an incredibly low risk. (Disagree? Then show me where the $263 million figure comes from!) What I do not support is allowing the right of employers and other property owners to prevent Invisible Error to trump the right to self-defense traveling to and from work or otherwise granting hoplophobes a veto over harmless behavior tied to the right to self defense. This isn't even one of those tricky cases. Invisible Error is not, in our legal tradition, a harm.

Davis Monthan noise rules changes and Prop 207

I heard through the e-mail grapevine last week that a "noise zone" around Davis Monthan AFB might be expanded, allowing the base to operate much noisier aircraft, and that affected citizens were organizing opposition.

My question is: Why does this even stand a chance? Didn't we pass 2006's Proposition 207 to prevent this or ensure fair compensation?

Before you say "no, Ben, Prop 207 guaranteed compensation for loss of use", hear me out: Enjoyment of the property is use. "I used to be able to get a good night's sleep, and now those damn A7s are shaking the glass" is rather clearly loss of use.

And my remedy for the sophomoric asshats who say "There's always been an AFB there: 'coming to the nuisance' is a defense" is to call over to the AFB and request low flyovers of your house, no matter where you live. "But the AFB existed when you bought it!"

If anyone who knows more can clue me in, please do. The supposed meeting to organize opposition coincided in both time and space with the last MCRC meeting, making me think the organization is a bit on the flaky side, and so far not a peep from the press.

HT: David F. Nolan, Ingrid Saber

Not-quite-new 'blog covers Prop. 207 cases

Someone who appears to be a part-time Arizonan has created a 'blog covering Private Property Rights Protection Act cases.

Despite the grating use of the word "liberal" to mean "believer in unlimited government"--why would a believer in individual liberty support uncompensated regulatory takings?--it isn't all that bad. I'll surf over every now and then for updates.

A matter of simple justice: Proposition 207

Proposition 207, the Private Property Rights Protection Act is perhaps the most poorly understood measure on the November ballot.

The Tucson Weekly, for example, gets it dead wrong. It isn't about getting rid of zoning laws or the Sonoran Desert Conservation Plan, and wouldn't even have that effect.

Capitalizing on the pro-liberty backlash against the -Kelo decision, Americans for Limited Government, a national, non-partisan, action-oriented group, financed a drive to put measures on the ballot in several states to limit eminent domain abuse and related misuses of power.

Prop. 207 addresses the central issues of Kelo by ensuring that public use is a judicial, not legislative or regulatory, question in Arizona and defining it to be:

1. The possession, occupation and enjoyment of the land by the public or by public agencies.
   
2. The use of land for the creation or functioning of public utilities.
   
3. The acquisition of property to cure a direct and immediate threat caused by the current use of the land (such as removing structures that are beyond repair or that are unfit for human habitation or use).
   
4. The acquisition of abandoned property.
   

Were it to stop there, it'd already be worthy of support, but it gets even better. For starters, Prop. 207 redefines "just compensation" for homeowners to mean a comparable safe, sanitary, and habitable dwelling or enough money to buy one. In other words, if 207 passes, the government can't take your home and just give you its cash value if it wouldn't be enough to buy another home. Eminent domain takings will no longer turn homeowners in poor neighborhoods into renters.

The most exciting--and the most controversial--benefit of 207's passage would be its partial-takings clause which requires the government to compensate property owners for regulations such as downzoning (do a search for Emmett McLoughlin to find out why that's a big deal) that take away from the value of their property by directly restricting its use. A list of exceptions can be found at the AZ HOPE website; the obvious ones such as public safety are covered, and unlike the Oregon measure which pioneered the concept of partial-takings, Prop. 207 is not retroactive and won't threaten to bankrupt municipalities all over the state.

Those who say that the partial-takings clause "goes too far" can be divided into three groups: Those who don't know what the measure does, those who haven't thought it through, and those who'd hate to see the government's power checked. For the last there is no remedy but ridicule--call a whip a whip! The first are usually concerned that the government will have to pay for anything it does anywhere that negatively influences property values; the text of the measure makes it quite clear that only laws directly regulating an owner's land would require compensation. I'll try to do something for the middle group here.

The modern conception of property is that it is a "bundle of rights", and that having title to land gives the right of exclusion and to various forms of use, the limits of which are, in urban areas, often determined by zoning and the municipal code. If you take away some of those rights, it's not "just like" taking some of the property; it is taking some of the property. The owner may still own the land but he is poorer because some of his right to it is gone; ownership, pop libertarians be damned, is not an all-or-nothing affair. Since the passage of the Bill of Rights and before, we have operated under the principle that the government, servant of the people, must provide compensation when it takes their property. Passage of Proposition 207 updates the Fifth Amendment's protections so that they take into account the creative swindles of modern municipal governments, ensuring that the government must pay if it takes some property rights just as it would pay if it took all property rights.

Make no mistake of thinking that Proposition 207 only concerns megadevelopers. Property is savings and livelihood; the partial takings clause protects homeowners, small businesspeople, farmers, landlords, and developers alike. Proposition 207 would force politicians to consider the human cost of regulation and to take responsibility for harm done to individuals. It's a matter of simple justice. Vote "yes" on 7 November and encourage your friends to do the same.