Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules

  • Date:
  • December 23rd, 2022

By: Robert Leider

This is a guest post that is part of a mini-symposium on "Private Property and the Second Amendment," responding to Jake Charles’ earlier post Bruen, Private Property & the Second Amendment.  Stay tuned for additional response posts that will run on the blog in the coming weeks.  

When the Supreme Court required public school desegregation in Brown v. Board of Education, some Southern jurisdictions resisted through legal chicanery.  In Virginia, the Prince Edward County school district “closed” its public schools to avoid integration, while setting up government-funded private schools that were “private” in name only.  The Supreme Court was not amused.  In Griffin v. School Board, the Court saw the closure for what it was, and it ordered Prince Edward County to reopen its schools on an integrated basis.

A similar game of legal chicanery is playing out in many Democratic states, which have launched massive resistance to the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen.  That decision held that the Second Amendment protects the right of law-abiding citizens to carry arms outside the home for self-defense.  Bruen recognized that states may reasonably regulate the right to bear arms using their police powers.  But they may not deny that right altogether to law-abiding Americans.  On this, Bruen followed the great weight of early American court precedent. 

In response to Bruen, some states have tried to engineer de facto bans on public carry.  These states have employed many mechanisms, such as requiring permits with high application fees, forcing permit applicants to disclose all their social media accounts, imposing time-consuming and expensive training requirements, and declaring as many places as possible to be “sensitive places” or “gun-free” zones.  But the most successful of the resistance measures has been to prohibit permit holders from possessing firearms on all private property unless the person in control of the property has granted express permission to enter with a weapon.  New York passed such a law in July, and New Jersey’s legislature passed a statute containing a similar provision this month.  California has also considered adopting it, and Maryland might consider it when Democrats take full control of state government in January.

By encouraging legislatures to presumptively ban firearms on all private property, prominent scholars, including Jacob Charles and Ian Ayres and Frederick Vars, claim to have found a constitutional loophole to nullify the practical effect of Bruen.  Everyone agrees that private property holders have the right to control their property.  If they want to allow guns, they may.  If they want to ban them, they may do that, too.  But why, these scholars ask, should the default rule only be that private property owners must allow guns unless they take affirmative steps to ban them?  In their view, states should have the power to flip the default rule so that guns are banned unless property owners say otherwise.

Flipping the default rule creates a de facto ban on public carry because most private property owners do not post signs either allowing or restricting firearms.  A person who cannot carry a firearm on private property cannot go about most life activities while possessing a firearm.  A gun permit holder cannot get groceries, go to a store, get a cup of coffee, use the restroom, or stop for gas while carrying a loaded firearm for self-defense.  Ironically (as I explained here), New York’s current gun carry regulations are far more restrictive than before Bruen was decided.

Although a default no-carry rule results in a drastic near-complete ban on public carry, it is not so easy to explain why this is unconstitutional.  There is no constitutional right to bear arms on private property.  The Second Amendment grants a right against the government, not a right against private individuals.  With limited exceptions, people do not have to permit guns on their property if they do not want them there.  Moreover, the Second Amendment appears to have nothing to say about which default rule a state has.  The selection of a default rule seems to be committed to a state’s police power. 

The counterarguments provided to date are unpersuasive.  In Antonyuk v. Hochul, Judge Suddaby temporarily restrained New York’s private property rules.  He argued that New York “is now making a decision for private property owners” by presumptively banning guns on private property.  But this seems wrong for two reasons.  First, New York is not deciding for private property owners.  As Jacob Charles correctly points out, private property owners may still allow guns on their property by posting a sign.  Second, one could make the same claim about the traditional default rule:  are those states deciding that guns may be carried on private property?  Obviously not:  private property owners in those states can ban guns, also by posting a sign.

Another argument that some have raised is that there is no historical tradition of presumptively banning guns on private property.  This argument, too, is unpersuasive.  Bruen does not freeze a state’s regulatory power to only those laws that have historically existed.  Although I cannot explain my reasons here, those who read Bruen to do that are, in my view, seriously misreading the decision.  Worse, even if Bruen said this, this argument is an appeal to Bruen’s authority.  It does not explain, as a matter of first principles, why New York’s law is unconstitutional.  Finally, while there may not be many examples of a presumptive ban on carrying firearms on private property, the historical record is not one-sided.  Alabama banned carrying pistols on another person’s property in the early 1900s, which its state supreme court upheld.  Some states (including pro-gun states like Louisiana and South Carolina) have presumptively banned carrying handguns inside another person’s home.  Granted, homes are not property generally open to the public.  But New York’s law applies both to homes and to businesses, so it is not obviously unconstitutional in all its applications. 

For my part, I am genuinely unsure whether a state has the power to change the default rule on all private property.  But conceding for argument’s sake that a state does have this power, I offer a different reason why New York’s law (and the law New Jersey is poised to enact) is unconstitutional.

Both states have so gerrymandered their private property law that their new law is nothing more than a pretext to deprive people of their right of public carry.  New York and New Jersey claim that they are switching the default rule so that carrying firearms on private property is banned, unless allowed by the property owner.  But this is not true.  A law switching the default rule—that actually changed the default rule—would prohibit the carrying of firearms by everyone, unless the person (1) had the express permission of the property owner or (2) was justified in committing what otherwise would be a trespass.

New York’s law does not come close.  New York exempts retired law enforcement officers from its private property ban.  These private citizens have no law enforcement powers and act with no governmental authority.  If the presumption is that carrying firearms is prohibited unless allowed, what gives retired law enforcement officers the power to violate private property rights?  Shouldn’t the default rule also apply to them?

A true switch of the default rule would also apply to active law enforcement officers.  Law enforcement officers, whether on or off duty, have no authority to violate private property rights unless they have a warrant or they are justified in committing a trespass (e.g., apprehending a fleeing felon).  For example, an on-duty officer getting a coffee at a local convenience store is a trespasser if he brings his weapons onto store property, against the owner’s wishes.  What is true of on-duty law enforcement officers is also true, a fortiori, of those who are off-duty and acting privately.  Indeed, many locations, such as stadiums and amusement parks, prohibit the possession of weapons by law enforcement officers who are not engaged in their official duties.  A law that truly changed the presumption would mean that on-duty law enforcement officers, no less than private citizens, would need express permission to bring their guns onto private property.

New Jersey’s law, meanwhile, is larded up with other exceptions.  In addition to active and retired police officers, New Jersey exempts from its default private property ban:  federal, county, and municipal prosecutors; the Attorney General, assistant attorney general, and deputy attorney general; judges of all kinds, including judges of the tax court, workers’ compensation judges, and administrative law judges; and hunters and target shooters.  So retired police, prosecutors, and tax court judges can enter grocery stores and shopping malls with concealed weapons (unless otherwise posted), while public defenders, stalking victims, and individuals with death threats would face felony charges for violating their permit restrictions.

If New York’s and New Jersey’s purported interest in presumptively banning firearms on all private property is to respect the property owner’s wishes, then these laws are grossly underinclusive.  Neither state’s law accomplishes the ends that they offer in defense. 

Although underinclusiveness does not necessarily entail unconstitutionality, it is a constitutional problem here.  Underinclusive laws can run in two directions.  Sometimes, “a legislature may deal with one part of a problem without addressing all of it.”  Erznoznik v. Jacksonville (citing Williamson v. Lee Optical Co.).  The Supreme Court has upheld laws that are underinclusive in this way.  Other times, however, underinclusiveness is a sign that the law is a pretext for accomplishing impermissible ends.  For example, in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, a city in Florida passed an ordinance that nominally regulated animal killings; but the ordinance was gerrymandered to prohibit only a particular religious practice involving animal sacrifice while allowing virtually every other type of animal killing.  The Supreme Court struck down that underinclusive law as a violation of the First Amendment’s Free Exercise Clause. 

New York’s and New Jersey’s new private-property default rule is similarly gerrymandered and pretextual.  On its face, these laws do not switch the property default rule for gun carrying by politically favored groups (e.g., retired and off-duty police).  This shows that they are not actually making a generally applicable default rule that a person may not bring a gun onto another person’s property without express consent.  Instead, these laws target gun carry by one group only:  civilians without prior law enforcement experience.  And what is clear from the face of the statute is confirmed by public statements of government officials, who openly admit that the law is part of a regulatory regime designed to prohibit most private citizens from carrying their weapons virtually anywhere.  When asked where a gun permit holder could carry his firearm under the new law, Gov. Kathy Hochul (D-NY) forthrightly answered “probably some streets.” 

Because these laws are clearly a pretext, they are not a valid regulation of the right to bear arms.  If a state wants to change its default rule to prohibit firearms on private property, it can do so.  But it must actually change the default rule.  Otherwise, a federal court should recognize New York’s and New Jersey’s law for what it is:  a shadow ban against most private citizens carrying firearms.  These states are overtly defying Bruen, and their laws should meet the same fate as Prince Edward County’s segregated “private” school system.