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Arbitrary and Irrational to Distinguish Private Property from Public Property?

So conclude three of the seven Justices of the Ohio Supreme Court in Ohioans for Concealed Carry, Inc. v. City of Clyde, decided yesterday. Fortunately, the four-Justice majority takes a different view, but the view of the three dissenters still seems to me noteworthy, because it denies the legitimacy of what strikes me as an utterly fundamental and proper distinction.

First, some background: Ohio is one of the 40 or so states that allows pretty much any law-abiding adult to get a license to carry a concealed gun (the exact number depends on how you classify the laws in some states). Ohio law provides that a licensed person "may carry a concealed handgun anywhere in this state," with some exceptions, including (among other things) private property when the private property owner forbids such carrying. So a licensed person may carry on his own property, private property where carrying is allowed, an most government-owned property.

The City of Clyde, despite this, banned carrying concealed guns in city parks. Ohioans for Concealed Carry challenged this, on the grounds that the state law trumps the city ordinance. The Ohio Constitution does give cities considerable powers to enact "local police, sanitary and other similar regulations" but only when they "are not in conflict with general laws," so the question is whether the concealed carry law is a "general law." To be a "general law," according to Ohio precedents, "a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally." The majority concludes that the concealed carry permit law is such a general law.

Here's where the dissenters' arguments come in: Two of the dissenters (Chief Justice Moyer, joined by Justice Lanzinger) conclude that the law isn't a general law because it provides an "exception for private property owners." The dissenters of course acknowledge that a law can be general though it has exceptions (nearly all laws have exceptions of some sort), "so long as the classification is not 'arbitrary, unreasonable, or capricious.'" But the dissenters conclude that the "different treatment of public and private property is patently arbitrary and unreasonable."

This strikes me as shockingly wrong. Of course private property can be reasonably seen as quite different from government-owned property. Private property owners have historically had very broad control over their own property; they could restrict behavior on the property for any reason or no reason at all, simply because of their property rights. Such rights have been limited in various ways, but they are still the rule and the limitations the exception — and in any event, it is quite reasonable to preserve or even expand such rights.

Government property, on the other hand, is owned by the government, which bought it with other people's money, and holds it in some measure in trust for the people generally. It thus makes perfect sense for the government to be more restricted in its use of its property. The U.S. Constitution of course takes this view, since it applies the First Amendment and other constitutional provisions to government property (at least in some measure) and not to private property. The same goes for the Ohio Constitution, see, e.g., Eastwood Mall, Inc. v. Slanco, 626 N.E.2d 59 (Ohio 1994). It may well be reasonable — within the constraints of the state and federal constitutions — to give local governments property rights that are comparable in force to private property owners' property rights. But it's also reasonable to take the opposite view, and to have state law limit what the government may do as to public property.

Thus, the dissenters hypothetical that supposedly proves their case just doesn't make sense. Here's what the Moyer dissent says:

Suppose that there are two parks in Clyde on opposite sides of the street; Park A is owned by the city, and Park B is owned by a private corporation. At Park A, a person with the requisite license could carry a concealed handgun at the park, as the statute does not prohibit the carrying of a concealed handgun in public parks. The city is powerless to change this fact; concealed handguns must be allowed in the park, unless one of the limited exceptions applies .... At Park B, ... [t]he owner of the park can decide to forbid concealed handguns for any reason or no reason ....

The single fact that Park A is publicly owned and Park B is privately owned changes the rules for whether concealed handguns will be allowed in the parks. The statute completely regulates public property while having essentially no effect on most forms of private property ....

This different treatment of public and private property is patently arbitrary and unreasonable; it affects one class of land solely on the basis of ownership, which has little to do with the relative safety of allowing concealed handguns on a particular type of property.

But the different treatment between Park A and Park B merely mirrors the different treatment of the parks under the First Amendment and under other constitutional guarantees. Public Park A generally can't eject patrons because of their speech; private Park B can. The distinction is simply that the second park is private property, and subject to the private owner's private property rights. The first park is government property, and subject to the constraints imposed on the government by the U.S. Constitution, by the Ohio Constitution, and by the general laws of the state of Ohio.

The dissent goes further in footnote 2, arguing:

Although not a reason under our case law for concluding that R.C. 2923.126(A) violates the Ohio Constitution, one can only speculate about, indeed wonder, what statewide interest is served by a statute that nullifies and prohibits a reasoned conclusion by the elected representatives of local government that the presence of any number of handguns in a city park may be a threat to the security and safety of those using the park. Implementation of the state statute strikes a severe blow to the underlying principles of local self-government.

It is unfortunate that the passion of those who believe in the right of virtually any adult to carry a concealed weapon (subject to the statutory exceptions) has pushed aside the fundamental belief in Ohio that matters that directly affect the safety of a community may be determined by local government, where the voices of those citizens most directly affected may be heard and considered. No one outside the city of Clyde, or perhaps the county of Sandusky, has any legitimate interest in the regulations placed upon the use of a city park in the municipality of Clyde. We can only hope that those who believe that dogs should run unleashed in city parks or those who believe that alcohol should be consumed in city parks are not able to convince a majority of the General Assembly of the merits of their cause.

I should have thought the "statewide interest" would be clear: Many people believe that there's a human right to possess the weapons needed for self-defense, when and where such self-defense is necessary — though, like many such rights (including free speech, religious worship, and the like), the right doesn't extend to action on the private property of others.

The Ohio Bill of Rights echoes this, by saying that "The people have the right to bear arms for their defence and security"; the Ohio Supreme Court has rightly interpreted this language as securing an individual right to have guns for self-defense, though alongside other bill of rights provision it wouldn't extend onto objecting owners' private property. The provision has been interpreted as not securing a general constitutional right to carry concealed weapons, but the Ohio legislature has decided to go beyond the state constitution's mandates, and protect people's right to bear arms for their defense even more. This human right, the Ohio legislature concluded, trumps contrary judgments of local governments, just as many other human rights trump contrary judgments even when those judgments are made "by the elected representatives of local government." It's one thing to disagree with the legislature's judgment — but it strikes me as quite blindered to feel "one can only speculate about, indeed wonder, what statewide interest" the legislature think it's serving here.

Finally, Justice Pfeifer's solo dissent is even more striking: He concludes that the distinction between private property and public property — again, the same distinction correctly drawn by the caselaw interpreting the state and federal constitutions' bills of rights — itself "violates the Equal Protection Clauses of the Ohio and United States Constitutions," because

There is no rational basis to distinguish between private and public property owners in regard to their statutory ability to prevent persons from carrying firearms onto their propertyproperty. Clyde owns its municipal park. Is there any reason why the owner of this property, where families gather and children play, should be forced to allow people with guns to enter, while the private owner of a public space such as a shopping mall can bar from entry any gun-carrying citizens?

How about the notion that private individuals, as property owners, have rights that the government does not possess — is that really so irrational?

(Thanks to Dan Gifford for the pointer.)

Related Posts (on one page):

  1. Why Laws Treating Public Property Differently from Private Property are Not Irrational, and Often Completely Justified:
  2. Arbitrary and Irrational to Distinguish Private Property from Public Property?
zooba:
Well obviously the decision had nothing to do with the distinction between public and private property and the dissenters would have no problem with a myriad of statutes that so distinguish. They just don't like guns and are grasping at straws to make look legalistic what is a pure assertion of power based on personal prejudice.
9.18.2008 2:51pm
trad and anon (mail):
They just don't like guns and are grasping at straws to make look legalistic what is a pure assertion of power based on personal prejudice.

Normally I would object to this sort of conclusion but I think you're actually right in this case.
9.18.2008 2:59pm
Aultimer:
I think para 61 is poorly written, but I think there's merit to the idea.

A "general law" is (according to the dissent) one that applies pretty much everywhere in the state - like a law criminalizing murder.

The goverment has to allow for differences with murder on private property, as compared to public property - like with warrant requirements/PC, etc. - but the general law applies. Compared to that, the carry law's distinction between public and private property IS arbitrary in an important sense.
9.18.2008 3:07pm
one of many:
Wow the sophistry of the first dissent is amazing. If I read the first dissent correctly, there are effectively no laws in Ohio which are general in the sense intended by the home rule provisions, despite their own examples. I can accept the Pfeifer dissent as being legitimate (wrong but not absurd) - for purposes of ownership the government can be considered to have the same rights as conferred by statute to private owners, but the Moyer dissent is just strange.
9.18.2008 3:09pm
Crafty Hunter (www):
A great many Americans have attitudes that are inherently Communist in nature, even if they'd deny it. This includes judges.
9.18.2008 3:09pm
Boyd G (www):
That they included an exception for private property distinguishes this as a poorly written law.

Of course, the owner of private property may refuse access to their property by someone who is armed, if they so choose. If the armed person fails to leave, though, it's (dare I say it) asinine to charge them with violation of a firearms law instead of (or in addition to) trespassing.
9.18.2008 3:11pm
great unknown (mail):
a) I suspect that the dissenters would take issue with your last statement and actually tend to minimize any rights private individuals have vis a vis government.

b) The rational response to this irrational dissent would be to amend the state law to remove the exception for private property. Imagine: legistating from the Legislature to counteract legislating from the Bench.
9.18.2008 3:12pm
Deoxy (mail):
How about the notion that private individuals, as property owners, have rights that the government does not possess -- is that really so irrational?


It is if you're a socialist.
9.18.2008 3:15pm
metro1 (mail) (www):
Professor Volokh:

I think you're quite right. And consideration of other provisions of the Bill of Rights (you discussed briefly the 1st Amendment) makes this clear.

Certainly the distinction between private property and government (or "public") property makes all the difference in the world in applying the following Amendments to the U.S. Constitution:

the 4th Amendment
that Amendment you never hear of ... the 3rd Amendment

Your example of the 1st Amendment is a particularly good one. I used to represent a municipal government. Local and state laws make distinctions all the time based on whether property is private or public.

For example, state and local laws usually have detailed rules about how demonstrations and parades will be regulated on public property. The government has to permit these types of events due to the 1st Amendment - but they have the right to regulate the time, place and manner of such events.

A private property owner - thank goodness - can absolutely deny anyone's right to have a parade - for example - on his/her property.

So distinctions between private and public property in state and local laws is inevitable, really. This being the case, saying such a distinction makes the law not of "general application" makes little sense.
9.18.2008 3:30pm
Sasha Volokh (mail) (www):
Boyd G: The exception for private property may be a good idea, lest the carry statute be held to supersede the property owner's right to exclude.
9.18.2008 3:31pm
Sasha Volokh (mail) (www):
metro1: You say: "A private property owner - thank goodness - can absolutely deny anyone's right to have a parade - for example - on his/her property."

This is almost true. See, e.g., Marsh v. Alabama and other state action cases, which discuss when private property owners are subject to constitutional requirements (for instance, when the company owns an entire town). See also PruneYard v. Robbins (state law can grant free speech rights on private property).
9.18.2008 3:36pm
david niehaus (mail):
Can someone explain to me why carrying concealed is so important? I live in Kentucky, the Constitution of which [Section 1(7)] allows any non-felon adult of sound mind to walk down the street with a six shooter strapped on his or her hip. Why not be open about the whole business?

I often feel at a disadvantage in court because both the judge and the prosecutor are allowed by statute to pack concealed heat but I am not.

About the only advantage I can see to the law is that a person can keep a gun under the seat in a car rather than in the glove compartment or on the seat.

Please don't misunderstand what this inquiry is about. I grew up shooting and believe that the government has no right to regulate possession for self defense. I just can't understand why the weapon needs to be concealed.
9.18.2008 3:43pm
Cornellian (mail):
I agree with EV. The dissent is shockingly wrong. "Private property owner" means private property owner. If they wanted to include governments they could have just said "property owner." The distinction is anything but arbitrary. People have property rights, governments don't and therefore it's perfectly acceptable for a government to write a law that allows for exercise of private property rights (i.e. no concealed guns on my private property) with no parallel provision for government owned property.
9.18.2008 3:43pm
Ryan Waxx (mail):
I suspect that these selfsame judges would swiftly find a distinction between public and private property, if someone suggested that the state constitution prohibited private owners from restricting RKBA rights...
9.18.2008 3:44pm
metro1 (mail) (www):
Also-

The Ohio statutory language as to what will be a general law states in part:

* * *

(1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state...

* * *

I think part of the dissent's confusion may be the words "alike" and "uniformly."

A general law may be "comprehensive" in the sense that it considers all possibilities about where and how it will be applied throughout the state. But that does not mean it's application will be identical statewide.

A state statute on the speed limit on public roads is "comprehensive" in the sense it applies to the whole state. But it yields very different results (different speed limits) on highways and local roads.

And it would probably exempt private driveways, farm roads, etc., from the statute. This exemption of private property would not make the statute any less "comprehensive" or "general."

And the fact that the state had passed such a "general" law would probably preempt a local government from setting speed limits on public roads in its jurisdiction (unless such additional regulation was expressly authorized by the statue). But, certainly, the state would not want the local government to set the speed limit, e.g., of a section of a highway if it happens to run through the municipal jurisdiction. This type of consideration is the reason for the preemption rule with regard to "general laws" in the first place.
9.18.2008 3:44pm
Dilan Esper (mail) (www):
Government property, on the other hand, is owned by the government, which bought it with other people's money, and holds it in some measure in trust for the people generally. It thus makes perfect sense for the government to be more restricted in its use of its property. The U.S. Constitution of course takes this view, since it applies the First Amendment and other constitutional provisions to government property (at least in some measure) and not to private property.

Well, that parenthetical seems to me to be very important.

I agree you should be able to carry a gun for self-protection in a park. But how about a courthouse? A government-owned shopping center with a bank inside it?

The key is, in the First Amendment context, you only have full free speech rights in traditional public fora on public property. You don't have as many rights in other places. You need a Second Amendment doctrine to do the same work in this context.
9.18.2008 3:49pm
Smokey:
The local government doesn't own the park, citizens do. The proper course of action would be, at the very least, to have a vote on the question, before arbitrarily presuming to overrule the 2nd A.

Before anyone chatters about elected representatives, they should keep in mind the language, "The right to... bear arms shall not be infringed."
9.18.2008 3:49pm
Andy Freeman (mail):
> I just can't understand why the weapon needs to be concealed.

(1) It avoids problems with morons.
(2) It keeps bad guys from targetting folks who have the ability to effectively respond.
(3) It's a social good - bad guys don't know that someone isn't carrying.
9.18.2008 3:49pm
metro1 (mail) (www):
Sasha Volokh:

Yes - there are always (it seems) exceptions. (The exceptions usually apply to property that is kind of quasi-public). But the general rule still applies.

With regard to PruneYard v. Robbins, the Court held that:

* * *

Since the California Constitution protected "speech and petitioning, reasonably exercised, in shopping centers even when the shopping centers are privately owned," PruneYard could not prevent the students from soliciting on its property. The Court argued that it was within California's power to guarantee this expansive free speech right since it did not unreasonably intrude on the rights of private property owners.

* * *

Again, the Court essentially treated the shopping center as some kind of quasi-public property. In other words, don't try to pass a law guaranteeing "free speech rights" at the Volokh (or my) family supper table. It would be a bad idea and (fortunately) the 1st Amendment does not mandate it.
9.18.2008 3:51pm
Sasha Volokh (mail) (www):
Eugene -- How about this as a potential defense of the dissenters' view, even though they didn't express themselves in exactly these terms.

Public property is of course different from private property because the government has different rights than private people for constitutional and other reasons. However, the Ohio home rule provision explicitly guarantees that a city can make a law that's not in conflict with a general law.

Suppose the state legislature passed a statute whose only purpose was to prophylactically protect constitutional rights on public property, e.g. a code for when municipalities had to allow parades. You could argue that this is still a general law (it regulates private people not at all, but that's because there's no need), but I could see an argument that this law is non-general because by its own terms it only applies to municipalities, and that this is exactly the sort of statute that the Home Rule provision was designed to prevent.

So -- still just sketching the broad outlines of an argument -- one might argue that your rational basis for distinguishing public from private property, which is that the city isn't like any old property owner, isn't a permissible basis, because Home Rule wants the state legislature to treat municipalities as though they were regular old private property owners, only to be regulated in the same way as other property owners but allowing rational discrimination such as would be sensible among property owners.

I don't know if this works, but it's a potential argument.
9.18.2008 4:09pm
Curious Passerby (mail):
It's judges like these that make me never ever want to vote for Democrats.The left wing mind set needs to be eradicated.
9.18.2008 4:14pm
Soronel Haetir (mail):
David,

One reason is that in many places where open carry is nominally legal it will draw extremely undesirable attention and possible charges for things like disturbing the peace.

Even within states this can vary widely, Idaho for instance allows open carry, which I did on several occassions in the small town where I lived to gauge the reactio, including one time standing in line behind a LEO while purchasing ammunition at a grocery store.. While I drew some extra scrutiny nothing much happened. However, my reading on subject indicated that the results would not have been nearly so favorable had I done so in downtown Boise.
9.18.2008 4:18pm
vassil petrov (mail):
I can accept the Pfeifer dissent as being legitimate (wrong but not absurd) - for purposes of ownership the government can be considered to have the same rights as conferred by statute to private owners, but the Moyer dissent is just strange.

Indeed. But Justice Pfeifer dissent reminds me to ask you is there ay distinction in American/common law between different types of property a public person/body politic?

In Bulgarian law there is a distinction between public and private state or municipal proberty. Public state/municipal proberty is much like some public law relation (Rechtsverhaltniss), inalliable property devoted forever or for long time for public use only, whereas private state/municipal property is held by the state/municipalities much like a private property owned by a private individual and can be alienated by the state/municipality.
9.18.2008 4:18pm
quinnpm:

"It's judges like these that make me never ever want to vote for Democrats.The left wing mind set needs to be eradicated."


All 7 justices on the Ohio Supreme Court are Republicans. While a number of people would (probably correctly) call Justice Pfeiffer a Republican-In-Name-Only, the same can't be said for Chief Justice Moyer or Justice Lanzinger (especially the former).
9.18.2008 4:27pm
John (mail):
Has anyone tried to throw a picnic in Justice Moyer's living room?
9.18.2008 4:28pm
Anon #319:
Just remember that two of the three here read the "You" in insurance policies to include coverage for employees involved in auto accidents not in any way related to their employment.

Unfortunately, the Supreme Court of Ohio isn't filled with judicial powerhouses.
9.18.2008 4:44pm
vassil petrov (mail):
The major distinction in Bulgarian law in subordinate legislation is between индивидуални/общи/нормативни административни актове (individual/general(nonnormative)/normative administrative acts).

An individual administrative act is for example a permit to build a building - in applies for a single person and has one-time legal consequense.

A general(nonnormative) administrative act applies for more than one, even potential indeterminate nummber of persons, but for only one occasion. For example putting a whole city under quarantine because of a desiese.

A normative administrative act applies for an indeterminate nummber of persons and for many, even infinitive times, every time certain situation arises, i.e. a law in the material sense.

Little attention is given however to the question of the territorial scope of the the normative administrative act.

Municipalities can enact ordinances if they meet two conditions: 1) the activities regulated to be of local nature (обществени отношения с местно значение) and 2) these ordinances (normative administrative acts of the municipalities) to be in accordance with the normative administrative acts of superior legal force, i.e. the laws and regulations of the state.
9.18.2008 4:59pm
LarryA (mail) (www):
Can someone explain to me why carrying concealed is so important?
Historically, some of the first U.S. anti-concealed carry laws were passed so police could hassle anyone they didn’t like, like blacks, who were carrying, but didn’t have to arrest anyone they did like, like whites.
I agree you should be able to carry a gun for self-protection in a park. But how about a courthouse? A government-owned shopping center with a bank inside it?
There’s no need for self-defense in a courthouse, where criminals are regularly present? We had a shooting in Tyler a couple of years ago where an estranged husband ambushed his family as they emerged from a courthouse, where he knew they couldn’t carry.

Why should the government own a shopping center? And why not carry there, private or public? Note in the recent Oklahoma mall multiple murder the shooter selected one of the few OK malls that posted against concealed carry.

Why not carry in a bank? I note that when the Texas concealed carry law went into effect 1/1/96 there were the usual “blood in the streets” predictions, and some businesses posted anti-gun signs. Conspicuously absent from the list were the large interstate banks and chain stores. They had experience with concealed carry in other states, and knew that CHLs tend to be very good customers you don’t want to piss off. No, not because they’ll shoot; because they’ll take their business elsewhere.

If a person can be trusted with a concealed handgun on the street, they can be trusted in almost any other location as well.
9.18.2008 5:01pm
one of many:
Indeed. But Justice Pfeifer dissent reminds me to ask you is there ay distinction in American/common law between different types of property a public person/body politic?

While there is quite a bit of distinction between government authority to exert control over property, the previously mentioned public forum (free speech) and expectation of privacy (4th amendment search) issues spring to mind, there are not separate and distinct categories, instead there is a continuum of areas and the amount they are subject to government control. To force them into classes there are 4 classes for distinguishing that we can use: Private land with little public interest (personal houses and such); private land with a significant public interest (shopping malls and such where ownership is private but the public is allowed); public land where the public is allowed free access (roads and parks); public land where the government is given extreme amounts of authority (military bases, courtrooms and similar). Bear in mind, again, that this is an attempt to force a classification scheme onto what is really a graduated scale situation. I believe Pfeifer is wrong in his determination of where a public park lies on the continuum of government ability to exert control over an area, however the logic which he uses is consistent with that which has been used to justify similar controls in other government owned property such as military bases and courtrooms.
9.18.2008 5:11pm
Soronel Haetir (mail):
One of many,

And some states recognize differences in that scale even between courthouses and courtrooms, only requiring forfieture of a weapon at a security checkpoint which is then reclaimed when you leave.

IIRC Washington allows concealed carry in the portions of jails that are unrestricted to the public as well.
9.18.2008 5:17pm
rbj:
It's not just that Ohio's higher judicial branch has some less than stellar minds. It's that the dissent seems to be geared towards result oriented judging. The dissent wants to keep firearms out of public parks and thus they will bend over backwards to that end.
9.18.2008 5:28pm
one of many:
Aye Haetir, I originally wrote courthouses thinking of federal courthouses then changed it to courtrooms for that very reason. I emphasize again that it is better to think of it as a scale and that any categorization is just identifying areas on that scale, there are distinctions but there are not distinct categories unless you want to create hundreds of categories (enclosed malls with large public concourses versus plazas versus enclosed malls with narrow halls, courtrooms versus courthouses and so on).
9.18.2008 6:08pm
Ahcuah (mail):
During oral argument, Justice Pfeiffer made a number of comments/questions about what sort of public policy regarding guns the Supreme Court should come up.

I kept wanting to shout at the screen, "Justices aren't supposed to deal in public policy. The whole purpose of the legislature is to determine what the public policy should be. The Court is only supposed to decide whether that public policy comports with the Constitutional provision!"

By the way, Moyer and Pfeiffer were also on the anti-gun side of the older Klein v. Leis decision, which said that the Ohio Constitutional right to bear arms did not guarantee the right to carry concealed.
9.18.2008 7:33pm
Soronel Haetir (mail):
If/when 2A incorporation comes down it will be interesting to see how the courts try to rationalize away all the 19th century rulings upholding open carry.
9.18.2008 7:43pm
Kirk:
Dilan,
I agree you should be able to carry a gun for self-protection in a park. But how about a ... government-owned shopping center with a bank inside it?
Heck, yeah! There've been a lot more high-profile shootings in malls and other large buildings than in parks.

Andy,

Your (1) and (3) are fine, but continuing a quest someone else started: do you have any documentary evidence of (2) ever happening, outside a police context? (Police don't really count because it's part of their job to go out and confront the bad guys; the rest of us are free to avoid them as much as we can.)

Soronel,
while purchasing ammunition at a grocery store.
All I can say is, you've got much better-stocked grocery stores than we do! :-)

But about Boise, check out the Idaho forum on OpenCarry.Org. I think Boise is mostly OK with open carry these days.
9.18.2008 10:02pm
Soronel Haetir (mail):
Nice to know they've come around, though I now live in AK where the carry laws are even more to my liking even given that I no longer see well enough to use firearms responsibly.
9.18.2008 11:30pm
Dilan Esper (mail) (www):
Larry A. and Kirk:

I should be clear. I don't deny that there's an interesting policy debate about what sorts of place-restrictions on firearms are desirable.

The question that these court cases pose, however, is whether the government should have any power whatsoever to prohibit possession of firearms on particular pieces of public property. At an extreme, one could imagine a right to keep arms that extended to carrying loaded weapons in airports-- I doubt, however, that the courts will find it. Nor are the courts going to tell the government that it can't attempt to keep guns out of a courthouse or a shopping center. Maybe they should, but they won't. I guarantee it.

Thus, my point is more of a realist one-- given that the courts will find that the government has the power to ban guns on some forms of public property (just as the government has the power to restrict speech on some forms of public property, by the way), what doctrine will do the work of the traditional public forum doctrine in free speech law, which delineates where we have full free speech rights and where we don't on public property?
9.19.2008 12:00am
sammler (mail) (www):
Wait: if the statute has an exception for private property, and that means it should have an exception for public property as well, then what other kind of property is there?
9.19.2008 8:27am
Andy Freeman (mail):
> do you have any documentary evidence of (2) ever happening, outside a police context? (Police don't really count because it's part of their job to go out and confront the bad guys; the rest of us are free to avoid them as much as we can.)

Let's review "(2) It keeps bad guys from targetting folks who have the ability to effectively respond."

I'm confused by the exclusion.

Attacks on police as police are fairly rare in the US because we don't have a physically violent political culture and the perception is that they generally don't carry much worth stealing.

Thus, attacks on police are almost always part of an attack on something else. (I'm ignoring violent responses to raids by police.) There are two cases:
(1) The police are present at the scene of a desired crime (either in a protective role or by coincidence) and
(2) They arrive at the scene during the attack (either in response or by coincidence).

If you're robbing a store, are you really going to treat someone openly carrying just like you'd treat someone who isn't obviously armed just because they're not wearing a real badge? You can't say "I'd delay until they left" because folks (police and not) wander into in progress crimes all the time.

Note that "protective role" is more commonly served by "not police". In some cases, armored cars, they go heavy. However, stealth is more appropriate in other cases, such as a merchant taking money to the bank. Carrying openly says "I'm carrying money".

Note that "open carry" also changes the dynamic of an attack in bad ways. If you're robbing someone who is openly carrying, you pretty much have to act on that. If you're robbing someone who isn't carrying openly, you're going to act a bit differently and less dangerously. A victim carrying concealed can choose to not use the gun without increasing the attacker's stress. Or, if such use the best option, has surprise on his side.

There is no single right way to carry.

More to the point, bans on concealed carry don't help stop criminal activity.

Note that guns aren't the only concealable weapons, so if there's a benefit to banning it, we'd find it in other circumstances. Consider martial arts. Should skilled folks be required to wear a visible indicator? If not, why are guns different?
9.19.2008 12:26pm
Eugene Volokh (www):
Sasha: If the argument was that public/private property distinctions are perfectly rational and nonarbitrary, but just keep the state law from having preemptive force, I wouldn't be quite as bothered by it.

But it would still be a mighty odd rule, it seems to me, even in a jurisdiction that's pretty devoted to home rule. It would mean that the state is without power to set forth legal rules that focus on public property, and exempt private property -- for instance, traffic laws that apply only to publicly owned roads (as the laws in at least some states do, I think), or additional free speech protections that apply only to publicly owned property, and the like. And it's hard to see why this would be the best interpretation of the state constitutional phrase "general law," since a law that applies to all public property strikes me as no less general than a law that applies to all businesses or all doctors or all insurance companies.

Finally, if the concern is that the state is somehow improperly discriminating against municipal property, I doubt this is so, since the law also applies, I would think, to state-owned property (such as state parks) as well as to municipal-owned property. So the only argument is that a law that covers only government property isn't a "general law," and that strikes me as an unsound argument for some of the reasons I mentioned above.
9.19.2008 2:58pm
jxr (mail):
If the Concealed Carry law was declared not a "general law", then municipalities could ban carrying on the sidewalks and streets.

The dissenting judges wanted to uphold the Park Ban, so that other cities would try a ban on any public property (which they would uphold).

The public/private property issue is playing a dual role. First, to declare the Home Rule override, and second to say if private owners can ban guns, then so can "public owners"[local government] ban guns.
9.19.2008 3:02pm
LarryA (mail) (www):
Thus, my point is more of a realist one— given that the courts will find that the government has the power to ban guns on some forms of public property (just as the government has the power to restrict speech on some forms of public property, by the way), what doctrine will do the work of the traditional public forum doctrine in free speech law, which delineates where we have full free speech rights and where we don't on public property?
How about, “If you prevent a person (or concealed handgun licensee) from carrying a firearm on your property you become legally responsible for that person’s physical safety. You must take steps to insure that criminals don’t illegally carry (metal detectors), and that the area is guarded well enough to prevent assaultive behavior. Otherwise the person denied the right of self-defense can recover any damages.”
do you have any documentary evidence of (2) ever happening, outside a police context?
Banks have largely abandoned the once-prevalent practice of having a uniformed security guard, since they were always the first ones neutralized by bank robbers.
9.19.2008 6:25pm