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Analysis

A Smarter Path to Firearm Safety Through Property Rights

Nothing in the Constitution — gives people a right to carry guns onto other people’s private property.

July 1, 2022

This article was origin­ally published in the Daily News

New York State legis­lat­ors were called back for a special session this week to consider a ground­break­ing response to the Supreme Court’s far-reach­ing expan­sion of gun rights. Last week’s decision in New York State Rifle & Pistol Asso­ci­ation v. Bruen will make it easier for people to obtain concealed-carry gun licenses in New York and across the coun­try. But noth­ing in the Second Amend­ment — nor anywhere else in the Consti­tu­tion — gives people a right to carry guns onto other people’s private prop­erty.

An astute group of poli­cy­makers is aware of this and craf­ted a common­sense legis­lat­ive response to the Bruen decision. Along­side vital changes to the train­ing require­ments for gun permits and other reforms, the legis­la­tion requires gun owners to have express permis­sion from prop­erty owners in order to carry their guns onto private prop­erty: homes, stores, restaur­ants, offices, nightclubs, movie theat­ers and the like.

Right now, in New York, if a person has a concealed-carry license, they are legally allowed to carry their guns with them in most public places. These people can also legally take their guns into a private place unless the prop­erty owner expressly tells them they are not allowed. The new legis­la­tion would flip this default setting, empower­ing New York­ers to have more control over their own prop­erty.

This new meas­ure comports with public opin­ion.

Roughly 80% of New York­ers live in a home without a gun. And legal schol­ars Ian Ayres and Spurthi Jonnalagadda conduc­ted a national poll to show that a major­ity of Amer­ic­ans prefer a “no-guns” default inside retail estab­lish­ments (56%), places of employ­ment (75%) and private homes (68%). As they explain in a compan­ion piece published in The Hill, “regard­less of the context — home, hunt­ing or retail — most people thought that guns should not be carried onto other people’s prop­erty without their express permis­sion.” New York joins several other states that have already heeded this public pref­er­ence when it comes to private homes and hunt­ing lands.

Beyond homes, the new policy effect­ively estab­lishes private stores, restaur­ants and places of employ­ment as presumptively gun-free. Employ­ers, restaur­ants and movie theat­ers have every right under the Consti­tu­tion to keep weapons off their prop­erty, and the legal change will ease their abil­ity to adopt a no-guns policy to protect employee and customer safety.

One of the major bene­fits of this private-prop­erty-focused approach is that it’s entirely consti­tu­tional. Yes, after Bruen, the Second Amend­ment limits the abil­ity of the govern­ment to regu­late guns in public places. But the Consti­tu­tion also protects prop­erty rights.

Under the New York proposal, prop­erty owners still can choose to allow guns on their prop­erty; they would just have to post a sign or grant express permis­sion after being noti­fied by a gun carrier. Since, accord­ing to the Ayres and Jonnalagadda study, the vast major­ity of people are unaware that the current default permits people to carry guns onto their prop­erty without their say-so, the law would have the net effect of giving control back to all prop­erty owners.

Given the newness of this approach, ques­tions will surely arise about how the no-guns presump­tion will apply in prac­tice, includ­ing how much leeway gun carri­ers will have when the public/private bound­ary is unclear. As writ­ten, the law crim­in­ally punishes someone who “knows or reas­on­ably should know” that the private prop­erty owner has not posted signage permit­ting guns or other­wise provided consent. Public educa­tion about the law will be of para­mount import­ance.

In addi­tion to the concerns of people bring­ing weapons onto private prop­erty, among other reforms, New York is also clari­fy­ing “sens­it­ive places” where gun-carry will be prohib­ited, includ­ing the New York City subway, Times Square, and vari­ous places where chil­dren gather. Further­more, New York had no state train­ing require­ment before Bruen. Now permit applic­ants will need to get at least 16 hours of in-person train­ing, as well as live-fire train­ing at gun ranges. Even though these and other reforms appear to be designed to comply with the regu­lat­ory aven­ues left open after Bruen, they will likely be chal­lenged as viol­at­ing the Second Amend­ment after the Supreme Court’s upheaval last week.

The Bruen decision is forcing states to adapt to a world in which more people will secretly carry weapons, which some research shows could result in more crime. A related implic­a­tion is that more people will be cross­ing from public to private prop­erty with fire­arms. By making clear that gun carri­ers must have expli­cit permis­sion from prop­erty owners to do so, New York is address­ing that import­ant implic­a­tion of the Supreme Court’s decision in Bruen.