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.