Posted on 12/10/2007 7:49:56 AM PST by jdm
Not being a lawyer, this question will exist more as a philosophical one, much as we treated it on Saturday's Northern Alliance broadcast. Mitch Berg and I debated the efficacy of gun-free zones in the wake of the Omaha mall shooting that left nine people dead, but before the two shootings at New Life church facilities that left eight dead. In at least the first shooting, the perpetrator conducted his murder spree in a commercial facility whose owners had marked it as a gun-free zone, a designation that keeps concealed-carry licensees from bringing their weapons into the building. We both wondered if that decision opened the owners to legal liability for forcing people to disarm themselves without having enough security to protect them.
D.J. Tice, one of the more thoughtful columnists at the Minneapolis Star-Tribune, listened to our show and found the argument intriguing. He wondered, though, why we don't believe in liability for not banning smoking, a rather strange argument:
Granting, for the sake of argument, the Lottian view that gun-free status makes a place of business more dangerous for its patrons, this lawsuit theory seems a surprising position for conservatives to take, since they presumably are defenders of private property rights.
Doesn’t a property owner have a right to ban guns from his property, even if it is unwise to do so? And aren’t those who believe such a ban puts them at risk free not to enter his property? Aren’t customers assuming any risk, and waiving any right to recompense, when they knowingly and voluntarily enter a gun-free zone?
The situation seems roughly comparable to the debate over bar and restaurant smoking bans. Conservatives as a rule argue that smoking bans are improper because a property owner should be able to decide whether to allow smoking or not. People who fear secondhand smoke need not work there or take their leisure there — or so the conservative line usually goes.
By and large conservatives can be expected to respond with disdain to the idea of lawsuits based on harm from voluntary exposure to secondhand smoke.
Tice misunderstands a couple of points. First, I've never said I oppose lawsuits over second-hand smoke; I oppose government mandates that ban smoking over the objections of private ownership. Second, as one of Tice's commenters at the Strib notes, people have chosen not to shop in "gun-free zones", including Mitch -- which is why there are fewer of them in Minnesota now. I would heartily encourage people to make their choices for retail business contingent in part on whether the owner bans legal licensees from carrying their weapons inside the store while putting up signs that announce to people that everyone inside is disarmed.
Mostly, though, I wonder at Tice's odd equation of second-hand smoke and gunshot wounds. I suppose a lawsuit over the former might make a lot of sense for someone who exposed themselves for thirty years to second-hand smoke through their job, but the first question I'd ask as a juror is why the plaintiff didn't change jobs. One exposure to second-hand smoke doesn't create health problems in any measure to anyone except asthmatics. One exposure to hot lead will kill a person, or at the least seriously wound them.
Private property owners should have the right to set the terms of entry to their property. Neither Mitch nor I demanded that Nebraska or Minnesota force property owners to allow guns on the premises when carried by license holders. Places like the Omaha Mall have the right to deny entry to people carrying weapons, even when completely legal and certified by the state. They should face the consequences of that decision, however.
For the record, I don't have a concealed-carry license, nor do I own a pistol. Neither do I fear those who do. The "gun-free zone" signs only show the baseless fear and vapidity of the property owners, and do nothing to keep criminals from doing as they please. If anything, those signs alert those with malicious intent where they can find the least amount of effective resistance. I'd rather shop at places where the owners allow a little more ambiguity, even if I don't carry a weapon myself.
I just ignore the signs. Unless they install metal detectors at all the entrances and pat everyone down who is coming in, what they don’t know won’t hurt them.
The same way the government can tell you not to use a legal product, tobacco, in many places. In both cases, it is the government camel keeping its nose under the tent to remind us of its "rights" and power.
I agree with the conservatives whom Tice describes.
Magnetometers at the entrance, it's on the way.
As a related question, if you are a legal CCW holder and are carrying in a legal manner, what penalties does one face for carrying in a business marked “no guns”?
Rmember the phrase; It’s better to be judged by twelve than carried by six.
Then the shooting will start at the entrance. They won’t wail until they get inside.
They won’t wait until they get inside either.
Well none actually, since the company lacks any enforcement mechanism the only thing they could do is to ask you to leave the premises. IMHO
Doesn’t a property owner have a right to ban guns from his property, even if it is unwise to do so? And aren’t those who believe such a ban puts them at risk free not to enter his property? Aren’t customers assuming any risk, and waiving any right to recompense, when they knowingly and voluntarily enter a gun-free zone?
The property owner has the right to ban guns, just like he should have the right to chain a fire exit closed. The customer has the right to sue when, in either case, the owner’s reckless disregard for the safety of the customers causes harm.
Likewise, a property owner has the right to keep lose rattlesnakes in his store. Here again, his reckless disregard for the safety of his customers creates a tort when one of the snakes bites someone.
Banning guns from a venue open to the public is as reckless as chaining the fire exits closed or allowing rattlesnakes to roam lose. Some trial attorney is going to become very wealthy when he starts taking these cases.
The owners of the mall were exercising their private property rights in declaring the mall a "gun free" zone. By posting that sign, they implicitly take responsibility for the safety of all who enter...including assurance that their prohibition is enforced on everyone who enters. The owners failed to prevent an armed person from entering their premises and killing persons unarmed by their policy. It is reasonable to hold the owners accountable for creating the situation that allowed the carnage.
Depends on the state. In mine, they have no legal force (unless posted someplace carry is illegal regardless of signage). You can only be asked to leave, and theoretically arrested for trespassing if you refuse.
In Nebraska, and I believe some other states (Texas is one), signs that meet certain standards do have force of law. You could be arrested for illegal possession of a firearm in a place with a properly posted sign even if you were otherwise legally permitted to carry.
Texas’ concealed carry law makes it a crime to carry in a place that bans concealed carry. You can be charged with a crime and have your permit revoked.
Here in Virginia if you carry somewhere that is posted, and you are caught, you can be asked to leave. If you do, no problem, if you don’t you can be charged with trespassing.
I am personally more interested in the original question since I refuse to surrender my Right to keep and bear arms for the state issued privilege to carry concealed...
Not being a lawyer, but keenly interested in the subject, my understanding is that prohibiting firearms does not create a legal liability unless they also make an attempt at providing that security/protection. In other words, if they simply post no firearms allowed, they created no legal liability, however if they provide a security guard, which fails to prevent an attack, the un-armed patron does have a legal claim.
Morally, there is no question, if you deprive me of my right and responsibility to defend myself, you are then liable for the repercussions you caused.
It depends on the state, but it could easily be a felony offense to be carrying concealed illegally.
You nailed it. Business owners have a private property right to ban guns from their premises, but they also have a legal responsibility to provide a safe environment. You have every right to make the decision to ban guns from property you control, but you’re responsible for the consequences.
That’s why I support a law stating that any legislator who votes against carry on a public university campus should be held legally liable if a shooting occurs. That would have a lot of Virginia senators and delegates mucking the stalls at the James River Work Center.
What I would like to know is where they get the notion that a constutionally protected right can be violated.
They don’t ask to remove your vocal chords so you can’t shout fire in a theatre.
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