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Why Laws Treating Public Property Differently from Private Property are Not Irrational, and Often Completely Justified:

Senior Conspirator Eugene Volokh has done an excellent good job of taking apart three Ohio Supreme Court justices' opinions that claim that claim that state law has no "rational basis" for allowing private owners but not government to ban the carrying of concealed firearms on their land. But, as a property professor, I can't resist the urge to pile on.

In addition to Eugene's well-taken points, there are two other important and relevant distinctions between private and public property. First, most private properties that are accessible to the general public are subject to the constraints of market competition. Privately owned stores, recreation facilities, bars, parks, and the like compete with each other to attract customers. As such, there are likely to be different stores that cater to customers with divergent preferences. If many Ohioans prefer to go to a gun-free bar, it is likely that there will be establishments that are happy to accommodate them. Those who prefer to bring their guns with them when they drink can go to other bars that cater to their preferences.

By contrast, many government buildings carry out functions over which government has a monopoly, or something close to it. Consider court buildings, the registry of motor vehicles, welfare offices, and so on. People who seek to use these public services often have no choice but to go to the government buildings in question, regardless of whether the policies there fit their preferences or not. Basic economic theory suggests that it is often necessary to regulate the policies of a monopolist more tightly than those of participants in competitive markets.

Second, and closely related, market competition gives private owners a stronger incentive to accommodate consumer preferences than government owners have. If a private business allows too many guns on its premises, rendering them unsafe, that will tend to drive customers away and reduce the business' profits. The same thing is likely to happen if the business adopts overly restrictive policies and thereby alienates gun-owners who want to be able to take their concealed firearms with them. Businesses have strong incentives to weigh these considerations against each other and come up with a policy that satisfies the most customers at the least cost. On the other hand, a government office that adopts flawed policies won't lose money as a result. Indeed, the bureaucrats in question might actually benefit from reducing the number of people who seek out their services. They will continue to collect the same pay, while having to do less work.

To be sure, really egregious errors by bureaucrats might eventually be punished at the polls; perhaps the voters will pick new state legislators who might cut the offending bureaucrats' budgets or otherwise force them to change their ways. However, the "rational ignorance" of the electorate ensures that all but the grossest and most highly visible bureaucratic mistakes are likely to pass unnoticed by the public.

Obviously, there are some exceptions to these generalizations. A few private businesses are monopolists, and a few government offices are subject to more rigorous market competition than that generally faced by public sector entities. Nevertheless, these points are valid as a general rule. And that should be more than enough to satisfy the loose standards of the "rational basis" test that, as Eugene explained in his post, applies to this case. Indeed, I think it should be enough to satisfy even significantly more exacting judicial scrutiny. Overall, there are many good reasons to regulate government officials' use of public property more strictly than private owners' use of their own land.

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?
Sam H (mail):
Sorry, it isn't about "markets" but rights.

"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."

They are going to have to have a very compelling reason to ban guns on government property.
9.18.2008 9:47pm
Malvolio:
If a private business allows too many guns on its premises, rendering them unsafe, that will tend to drive customers away and reduce the business' profits.
Uh, or more likely the opposite: "If a private business forbids guns on its premises, rendering them unsafe..."

Having legal guns at a particular place of business tends to render that place more, not less, safe, as the occasional dimwitted miscreant who attempts to rob a gun store and ends up comprehensively perforated can attest.
9.18.2008 9:53pm
Ilya Somin:
If a private business allows too many guns on its premises, rendering them unsafe, that will tend to drive customers away and reduce the business' profits.

Uh, or more likely the opposite: "If a private business forbids guns on its premises, rendering them unsafe..."

Having legal guns at a particular place of business tends to render that place more, not less, safe, as the occasional dimwitted miscreant who attempts to rob a gun store and ends up comprehensively perforated can attest.


You may well be right that the safety benefits of guns outweigh the risks. I'm only saying that private businesses have stronger incentives than the government to strike the right balance between the two.
9.18.2008 9:56pm
Sevesteen (mail):
Actually, in Ohio it is generally a felony to go armed to a bar or restaurant that serves liquor. It is unclear (at least to me) if beer counts--the law specifies liquor, and other statutes specifically say that beer is not liquor.
9.18.2008 11:33pm
Dilan Esper (mail) (www):
To me, this is a rather simple matter of state action (at least on the Second Amendment level; I don't know enough about the Ohio Constitution but assume there's a state action requirement there too).

When you have a restriction on public property, you have state action. When you have a restriction on private property, you don't (absent a Marsh v. Alabama or similar type of claim). I've argued for the relaxation of the state action doctrine, but even if it were relaxed, there's still a big difference between public and private property.

But as I said in the other thread, the real issue with gun rights on public property is going to be whether there is something akin to the public forum doctrine, which says you only get full First Amendment rights on some forms of public property.
9.19.2008 12:12am
Harvey Mosley (mail):
Slightly OT, but a serious question. If I'm called for jury duty (which I enjoy, as its very informative) why do I have to "consent" to go through an xray machine? I understand at airports, I have made a choice to fly and those are the requirements. But, as the jury commisioner keeps telling me, jury duty is NOT a choice.

IANAL, so I hope one of you lawyer types in these parts can give me an answer? Or at least tell me where to look?
9.19.2008 7:10am
phalkon (mail):
As such, there are likely to be different stores that cater to customers with divergent preferences. If many Ohioans prefer to go to a gun-free bar, it is likely that there will be establishments that are happy to accommodate them. Those who prefer to bring their guns with them when they drink can go to other bars that cater to their preferences.

While the market could work this way, it often doesn't. Take, for example, smoking in bars in Virginia and Maryland before bans were enacted a few years ago. Talking to bar patrons indicates a significant number are happy that smoking is no longer allowed (while others are unhappy or don't go anymore). Yet before the bans, there were very, very few bars that banned smoking altogether. For some reason owners decided almost unanimously not to open alternative establishments to meet the needs of customers "with divergent preferences."
9.19.2008 10:28am
Ryan:

If many Ohioans prefer to go to a gun-free bar, it is likely that there will be establishments that are happy to accommodate them. Those who prefer to bring their guns with them when they drink can go to other bars that cater to their preferences.


Unfortunately, the law specifically disallows the carrying of concealed weapons [by permit holders] in establishments that have Class D liquor licenses [except for a very narrow exception for the bar owner who is allowed to carry under the new law that went into effect this month]. However, Professor Somin's analogy is still correct. Just substitute bar for grocery store or book store etc.

On a side note, I find it terribly irrational that the state bans law abiding citizens from carrying their weapons in bars but allows those same citizens to drive to the bar [or carry their keys in a bar]. After all, if we are to assume that the law was enacted that way because the state is fearful of concealed carry holder's using their weapons while intoxicated, doesn't that same fear apply to driving [which, I'd note, kills many more people a year than firearms]?
9.19.2008 12:59pm
FWB (mail):
Why is it that so few people know what the/a constitution is?

A Constitution, as in the Constitution for the United States of America, is a set of rules made BY the People, FOR the government. Those rules, and especially in the case of the BoR, are restrictions ON THE GOVERNMENT, not on the people. The government may not infringe. (Of course here we get "the pulled out a dark place" claim about "reasonable" restrictions.) Some people might "infringe" as in the case of arms on real property since the people who own the real property have Rights equal to those of the person upon whom the infringement is made. And when one goes into another's castle (property) one does what the owner of the castle desires or one leaves.
9.19.2008 5:09pm
LarryA (mail) (www):
Slightly OT, but a serious question. If I'm called for jury duty (which I enjoy, as its very informative) why do I have to "consent" to go through an x-ray machine? I understand at airports, I have made a choice to fly and those are the requirements. But, as the jury commissioner keeps telling me, jury duty is NOT a choice.
IANALE, and I don't know the answer, but I'll expand the question. It seems like anyone summoned, for instance as a witness, would meet the same criteria, as in fact would the defendant.
9.19.2008 5:28pm
Dilan Esper (mail) (www):
A Constitution, as in the Constitution for the United States of America, is a set of rules made BY the People, FOR the government.

That's generally true (and as noted above, I do believe this sort of issue turns on state action), though you should know it isn't universally true.

At least two provisions of the Constitution-- the definition of treason and the 13th Amendment-- unambiguously govern private conduct.
9.19.2008 5:49pm