Firearms Law Workshop Mini-Symposium, Part VI: Guns in the Private Square

When Americans go out in public, they may encounter civilians carrying guns either openly or concealed.  For some, this is a scary thought, for others, a reassuring one.  But regardless of where they stand on the issue, most Americans assume that whether their day to day lives will be awash in guns will primarily be determined by politics and specifically where their state and local politicians stand on gun control and gun rights.  But is that really true?

Over the past thirty years, laws regulating the carrying of firearms in public places have become more and more lax.  In the 1980s, in the vast majority of states a civilian could not carry a firearm without demonstrating some particularized reason for wanting to do so and many states did not allow civilians to carry firearms at all.  Today, in the vast majority of states, civilians can acquire a permit to carry a firearm without demonstrating any particularized reason for doing so and a growing minority of states go even further by not requiring a permit at all.

So does this mean that, for most Americans, civilian carried guns are going to be an inevitable part of daily life? Not necessarily.

At the same time that laws regulating publicly carried guns have been relaxed and eliminated, the amount of truly “public” spaces in America have been shrinking.  When most Americans go “out in public” they are often really going to privately owned spaces like strip malls, grocery stores, shopping malls, and big box stores.  Even places that have traditionally been thought of as public are often under private control like sidewalks and parks.

Although states have relaxed their public carry laws, even the most permissive of these laws tend to allow private landowners to make their own decisions about whether to allow people to carry guns on their property.  The upshot of this is that private businesses now have a tremendous amount of power to decide whether guns in public will really become commonplace or not.

My article argues that businesses ought to be held accountable for the consequences of these decisions through premises liability.  Premises liability is a tort doctrine that holds landowners liable for dangerous conditions on their property.  The classic example of this sort of liability is a “slip and fall” where a person is injured after slipping on debris on a business’ floor and then sues the business for allowing the dangerous condition to go unchecked.

In the gun context, businesses who choose to allow customers to carry guns onto their property ought to be held liable when that choice results in another customer’s injury or death.  This would not force businesses to ban guns, rather it would force them to internalize the costs of allowing guns onto their property.  Businesses in areas where guns are popular might choose to simply eat the cost (or insure the cost) of this potential liability in order to continue to attract customers who would like to carry guns.

This would also have some positive secondary effects by incentivizing businesses to be clearer about their policies banning or allowing guns.  Right now, many businesses try to stay on the fence of this controversial issue by not clearly informing customers one way or another about what their gun policies are.  The threat of liability would force establishments to post clear gun policies—either to avoid liability by banning guns or to recoup the cost of liability by prominently advertising the permissibility of guns.  This transparency would allow consumers to make informed decisions about where they spend their time.  Ultimately, this would be a benefit for everyone since it would give people more control over their personal relationship with guns.

The issue of guns in private businesses is emblematic of a larger trend I call the privatization of the gun debate.  Gun rights advocates have been very successful in relaxing existing gun control laws and stopping new ones from being enacted to the point that the focus of the gun debate is going to increasingly turn from public policy to private decision making.  Along with questions about carrying firearms inside businesses, it will become increasingly important to ask whether gun sellers can be pressured to stop selling certain kinds of guns or accessories, whether banks may stop lending to gun makers or sellers, and whether insurance companies will consider gun ownership in setting homeowners’ insurance rates.  The answers to these questions may tell us more about what the role of guns in America will be in twenty years than anything that happens in a legislature or appellate court.

[Ed. Note: This post is part of a series on the papers presented at the Center’s first Firearms Law Works-in-Progress Workshop on August 2, 2019.]