The Private Sector Leans into Gun Regulation

This week, Walmart and Kroger announced that they will no longer allow open carry in their stores.  Walmart also announced that it would be ending sales of handgun ammunition and some kinds of assault rifle ammunition.  These announcements represent the latest examples of the privatization of the gun debate.  As the political system has either proven gridlocked (at the federal level) or largely pro-gun (at the state level), advocates for stricter gun regulations have increasingly turned to private businesses as a vehicle for reducing gun violence.

In one sense, Walmart and Kroger’s decisions are a good illustration of why this is a good strategy.  These two companies are the two largest grocery stores in the United States and their decisions about what kinds of gun carrying will be allowed in their stores are likely to be more impactful than anything most state legislatures might choose to do about public carrying.  That’s because when most people go out “in public” they usually are not exclusively spending time in public spaces, but instead are going to places like Walmart and Kroger that may be “public” in the colloquial sense, but are privately owned businesses.

While the trend of private gun regulation is important, the impact of these particular decisions might be narrower than they seem at first glance.  Both companies’ policies prohibit open carry but specifically allow concealed carry[1] where it is legal (which is most of the country).  This makes a big difference because even though open carry is more high profile, concealed carry is far more common—one 2015 study found that about two thirds of people who carried guns in public always carried concealed and those who publicly carried the most often were the most likely to carry concealed rather than openly.  So Walmart and Kroger may still have many gun carrying customers even after this week’s changes.

Even when it comes to open carrying, advocates will need to watch closely how these policies are implemented.  Kroger’s statement for example said that they would be “respectfully asking that customers no longer openly carry firearms” in their stores, but that will likely be insufficient. Many state laws require businesses that wish to prohibit guns on their property to use specific kinds of signage to let customers know.  Some statutes just require some kind of conspicuous sign stating that no guns are allowed, but others go into much more detail, including requiring that the signs be readable from a certain distance or that the font and pictures on the sign be of a certain size.  Other states even provide or require businesses to use specific signs that are issued by state administrative agencies.

Still, even with those caveats, these retailers’ decisions represent a step forward for gun control advocates and hopefully will serve as a rallying point for repeating this strategy with other private actors with the power to regulate guns.

A final note about this episode is worth highlighting—the NRA’s response:

The strongest defense of freedom has always been our free-market economy. It is shameful to see Walmart succumb to the pressure of the anti-gun elites. Lines at Walmart will soon be replaced by lines at other retailers who are more supportive of America’s fundamental freedoms. . . .

A couple of things jump out at me here.  The first line’s reverence for free-market principles, even in the face of this defeat, is perhaps a signal that the NRA is not willing to pursue legislative responses to these kinds of decisions.  In the past, the NRA has supported “parking lot laws” that require businesses to allow customers to bring guns into parking lots as long as the gun is kept locked and out of sight.  So far, no significant efforts have been made to force businesses to allow gun owners to carry into the businesses themselves and the NRA’s reaffirmation of the “free-market economy” in this context may signal a continued reluctance to go there.

The second line’s reference to “anti-gun elites,” while it may seem like boilerplate pro-gun rhetoric, is actually an interesting acknowledgement of how effective a privately focused strategy can be.  The NRA is probably right that socio-economic elites are disproportionately likely to favor stricter gun regulations.  Rather than running away from that fact, gun control advocates should embrace it.  Socio-economic elites almost by definition have disproportionate influence over big corporations like Walmart and Kroger.  The NRA has long succeeded at using the places where it has disproportionate power, like rural-dominated state legislatures and the US Senate, to advance its agenda.  Perhaps the other side of the gun debate has finally decided to do the same.

[1] Walmart’s statement said it would allow customers to concealed carry who have “a license” but it is unclear how this will apply in states like Arizona where no license is required.

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.]