The subject of the presence of firearms in our society is still very politically sensitive. Public opinion remains polarized. The public dialogue seems more focused on esoteric questions of Constitutional interpretation than on more everyday questions about the extent of the presence of firearms and the extent to which private property owners, particularly owners whose property is “open to the public,” can legally control the presence of firearms on their property.
The debate about the presence of firearms in our society now seems centered on whether the Second Amendment guarantees individuals, as opposed to the “militia,” the right to bear arms. This debate only obscures, rather than clarifies, the more practical issue of the presence of firearms on privately owned business premises. This issue is important to any owner or operator of business premises. The liability and public relations implications of having guns on the premises are significant. The financial and public relations impact of even one incident of gunfire on a business premises could obviously be catastrophic.
Under Arizona law, carrying a concealed deadly weapon is legal if a permit has been obtained. Without such a permit, it is illegal to carry a concealed deadly weapon except on a person’s own property. It is also illegal for a person to enter a public establishment or attend a public event carrying a deadly weapon (concealed or not) if the person is asked to check his weapon at the door. “Public establishment” and “public event” are defined for this purpose as government operated or sponsored places or events, including private events conducted with a government permit.
None of those laws, however, control the carrying of a firearm, either concealed pursuant to a concealed weapon permit or in plain view, on another person’s private property. It has been suggested that in order for the owner of private property that is open to the public to prohibit firearms on the property, the owner must provide a means for persons carrying firearms to check their firearms at the door. There is no law, however, that requires such measures on private property.
A recent decision by the Arizona Court of Appeals tends to confirm that there is no legal barrier to a private property owner restricting the presence of guns on his or her property. The case, McMann v. City of Tucson (decided May 30, 2002), involved gun shows conducted at the Tucson Convention Center. The City of Tucson contended, and the Court agreed, that the City can place conditions on the conduct of gun shows at the Convention Center despite the existence of an Arizona statute that prohibits cities from regulating firearms. The Court reasoned that the City was acting as a landlord engaged in a permissible business activity in its operation of the Convention Center. The Court gave no indication that any constitutional or statutory provision would prevent the City, acting as a landlord, from regulating the presence of firearms on its property.
The fact is that, recent debate notwithstanding, there has been no authoritative suggestion that the Second Amendment means there can be no restrictions whatsoever on the possession of firearms. It has always been recognized that the rights guaranteed to us under the Constitution are subject to certain limitations. Just as the First Amendment doesn’t guarantee me the right to shout “Fire!” in a crowded theater, the Second Amendment doesn’t mean that you must permit me to enter your premises while carrying a gun. The courts have consistently ruled that although the First Amendment guarantees me the right to exercise my freedoms of speech and religion by soliciting donations to my church, it does not guarantee me the right to do so in your shopping center. The Second Amendment has likewise been interpreted as subject to reasonable restrictions. Unless and until there is change in that interpretation, or unless a statute is adopted that requires an owner of private property to permit persons carrying firearms to enter the property, it will still be possible for property owners to exclude from their property any person carrying a firearm (other than a law enforcement officer). Even if the property is open to the public, the property owner can give notice that the entire property is an area where public entry is not authorized as to persons carrying firearms, effectively prohibiting entry of the property by anyone carrying a firearm.
The trend toward reducing the legislative restrictions on possession of firearms seems to have abated somewhat in the most recent session of the Arizona Legislature. If that trend continues, however, it will place an even greater burden on owners and operators of business premises to control the presence of firearms on their premises. Ignoring that burden could be very risky for such owners and operators, given the increasing frequency of gunfire on business premises. The potential liability from even a minor incident of gunfire could be severe.
The practical application of the existing legal principles is still that any property or business owner can put a notice on the door: “Entry not authorized as to persons carrying weapons.” The importance of such a measure will only increase if the trend toward reducing legislative restrictions on the possession of firearms continues.
