Bruen, Private Property & the Second Amendment

  • Date:
  • December 02, 2022

In the decade and a half since Heller, there has been a considerable amount of scholarship and litigation about the spaces where the Second Amendment extends. Bruen settled some of those questions by granting a right to publicly carry with no showing of need. And it suggested there could be permissible restrictions in certain sensitive locations. But there have also been questions about the status of gun rights on private property. A large number of states currently have laws mandating that at least some private property owners allow guns to be stored in cars parked on their property, whatever the owner’s preference or wishes (known as parking lot laws). And some states, like Texas, provide by statute that guns are by default allowed on private property with, as the state explains, “an option for private property owners to post a sign that prohibits the carry of firearms (handguns and long guns) on the property.” Those signage requirements can be onerous, and the state notes that, “It’s possible that a private property owner would need to post multiple signs in order to ban both unlicensed carry and licensed carry.” But to be sure they can exercise their right to exclude, “Property owners should consult an attorney for advice on the proper signage for their situation.”

Two years ago, in Cedar Point Nursey, Chief Justice Roberts extolled the right to exclude as fundamental:

The right to exclude is one of the most treasured rights of property ownership. According to Blackstone, the very idea of property entails that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. In less exuberant terms, we have stated that the right to exclude is universally held to be a fundamental element of the property right, and is one of the most essential sticks in the bundle of rights that are commonly characterized as property. (Citations and quotation marks omitted.)

That decision struck down a California law requiring temporary access to private property, and some commentators think the precedent it set threatens some versions of parking lot laws as well.

But even beyond parking lot laws, the permissive gun default has remained in many places—a default that presumptively allows guns on private property unless an owner expressly objects (and sometimes, as in Texas, objects in the specific way the statute provdes they must). In their 2020 book Weapon of Choice, Ian Ayres and Fred Vars advocated for flipping the default as a mechanism to empower private property owners to exercise choice and protect their property interests. This option was generally seen as constitutionally unproblematic because all it does is restrict guns from a place where there is no Second Amendment right to carry them (private property) and then give property owners the choice to “opt in” to being a gun-friendly property, as opposed to requiring them to “opt out” to become a gun-free zone.

In spite of that general understanding, two federal district court decisions in New York have recently held that New York’s post-Bruen legislation flipping that default is unconstitutional. The first is the omnibus ruling from Judge Suddaby in Antonyuk v. Hochul on November 7th. The latest is a decision by Judge Sinatra in Christian v. Negrelli on November 22nd. The Christian ruling is narrower than Suddaby’s ruling in Antonyuk, in two respects. First, the decision only covers the private-property-default provision of New York’s law and, second, the decision only applies to private property held open to the public, though the court said its rationale extends to even private property not open to the public, but that it was constrained by the relief the plaintiff asked for in fashioning the scope of the injunction.

Both decisions leave something to be desired in their reasoning. I’ll focus on Christian in this post. The court skipped over the “plain text” threshold analysis that Bruen requires before the government bears the burden of showing a historical tradition. Presumably the court thought it clear that “bear” covered the case. But, if so, this is another in a long line of problematic cases that highly generalize from the regulated conduct without explaining why that’s the right level of inquiry—for example, Christian doesn’t explain why the challenged conduct is “bearing arms for self-defense” instead of “bearing arms for self-defense on private property.” It’s not clear the latter is clearly within the “plain text.” In any event, the court did say that Bruen’s reference to a right to carry a gun “in public” was “not a limitation.” Bruen simply extended Heller from the home to the public, but “[t]he Court did not indicate that the right ceased at the property line of others.” I was particularly stunned by that last line. Of course my right to engage in conduct (whether constitutionally protected or not) doesn’t extend past another person’s property line without their consent. My first year Torts students grasp this intuitively before I ever tell them a word about the intentional tort of trespass to land.

Skipping past the step one “plain text” inquiry, the court first brushed aside concerns about its ability to decipher the historical record. It quoted Bruen’s assurance that the parties have to cite the right evidence and then added that “[t]he historical record itself, and not expert arguments or opinions, informs the analysis.” It then dismissed several of the laws that New York and its amici put forward to show a tradition of regulating guns in private spaces. Those weren’t sufficient in number (echoing other courts, the Christian court said 7 contemporary laws weren’t enough in Bruen, so fewer are insufficient here) and there wasn’t enough evidence that they were enduring laws or enforced frequently.

Finally addressing the elephant in the room, the court observed that New York pointed out that private property owners have always been able to exclude guns. Yes, said the court, “[b]ut that right has always been one belonging to the private property owner—not to the State. It is the property owner who must exercise that right—not the State.” Yet it seems clear to me that setting a default rule by statute is not exercising the right to exclude; after all, New York freely allows these property owners to opt-in to be a gun-friendly zone. The right to exclude (plus the right to include) still belongs to the property owner. Nonetheless the court concluded that the default rule set in the past can’t be changed: “The Nation’s historical tradition is that individuals may carry arms on private property unless the property owner chooses otherwise.” And thus (by definition) there is no historical tradition for New York’s inversion of the default rule.

In the course of its opinion, the court made what appear to me to be several arguments that are in significant tension, if not outright contradictory. On the one hand, the court emphasized that the Second Amendment right is important even in private spaces. “The right to self-defense is no less important and no less recognized on private property.” It drew on Justice Alito’s Bruen concurrence, which painted a picture of an increasingly dangerous world with threats around every corner. New York’s default switch means that “law-abiding citizens are forced to give up their rights to armed self-defense outside their homes, being left to the mercy of opportunistic, lawless individuals who might prey on them and have no concern about the private property exclusion.” On the other hand, the court underscored property owners’ (constitutional) right to exclude guns. “Nothing in this decision purports to impact the traditional property right to exclude others, so long as the property owner (not the State) is the one actually exercising that right.” Thus, the court in one breath says guns are all but necessary to fend off “lawless individuals” on private property, and in the next says that of course owners can strip carriers of that protection if they want. That seems incongruous at the very least.

In the end, either the Second Amendment right extends onto private property or it doesn’t. If it does, how can the law allow private property owners to exclude guns? How can it ratify private gun-excluding decisions by using state power to enforce, e.g., trespass laws (see Shelley v. Kraemer)? If it doesn’t, how is there a Second Amendment claim at all? I’ll end with a quotation from conservative Judge Gerald Tjoflat in a pre-Bruen 11th Circuit case dealing with a challenge seeking to bring guns onto private property over the owner’s objection:

Thus, property law, tort law, and criminal law provide the canvas on which our Founding Fathers drafted the Second Amendment. A clear grasp of this background illustrates that the pre-existing right codified in the Second Amendment does not include protection for a right to carry a firearm in a place of worship against the owner’s wishes. Quite simply, there is no constitutional infirmity when a private property owner exercises his, her, or its—in the case of a place of worship—right to control who may enter, and whether that invited guest can be armed and the State vindicates that right. (Emphasis added.)

If the state can “vindicate[]” the right of property owners to exclude after the fact by arresting and prosecuting trespassers (i.e., those who carry over objection), why can’t it vindicate that interest ex ante by establishing a default rule that serves that interest and still allows property owners who desire guns on their property to opt-in?