Tuesday, January 12, 2021

Giving Property Owners Better Control Over Gun Rights

Ian Ayres

Ian Ayres and Spurthi Jonnalagadda

When deer hunting season starts in Pennsylvania and dozens of other states this coming fall, hundreds of armed strangers will go onto other people’s land looking to find and shoot their prey.  This kind of hunting without permission can have tragic consequences.

In 2017, Karen Wrentzel was shot and killed by a hunter when she was walking by on her own land in Hebron, Maine.  The hunter, Robert Trundy, was ultimately sentenced to 9-months of jail time for manslaughter. 

But he wasn’t charged with trespass, even though he never sought permission to hunt there.  Maine, like 24 other states, allows strangers to enter rural property and hunt unless the owners post no trespassing signs along the border of their property

Pennsylvania is trying to avoid this kind of tragedy by making it easier for owner to post their property by painting purple blaze marks along their property boundary instead of nailing up signs.  The North Dakota Senate passed a bill this year that would instead let landowners post their land as closed to hunting on an Internet database.

But states should do more to protect landowner rights.  There is a strong consensus — even among many hunters — that strangers should ask for permission before hunting on other people’s property. States like Pennsylvania have outdated legal presumptions.  We shouldn’t make the landowner goes to the expense of posting “No Trespassing” signs or painting purple marks at regular intervals along the perimeter of their land.  We don’t have to make it so hard for landowners to stop a complete stranger from discharging weapons on their land.  Half the states have seen the wrong-headedness of this policy and have flipped to a presumption that strangers cannot hunt unless they have the landowner’s permission.

Legal presumption rules can have powerful impacts on public policy.  In the United States, you have to opt into organ donation and there are long waiting lists for kidneys, but Belgium has established an opt-out donation default and has more abundant supply. Both countries give individuals the same right to decide whether or not they want to donate, they just start with different presumptions.

And the failure to protect property-owners’ rights isn’t just about hunting on rural land.  In all but 4 jurisdictions—Alaska, D.C., Louisiana, and South Carolina—any visitor can, by default, carry a firearm into your home without your explicit permission.  You might be surprised to learn that when you ask someone to come and repair your dishwasher, they can legally carry a concealed weapon into your kitchen unless you expressly object. 

Forty-seven states fail to adequately protect landowners’ control of their property by providing the wrong default rule with regard to the right of invitees to bear arm.  Homeowners can’t make an informed choice if they don’t know they have to object or don’t know that a guest is carrying a concealed firearm. 

States should change their law to flip the legal presumption.  This can be succinctly accomplished by enacting a statute ordaining: “No individual may carry a firearm onto the property of another without first receiving the express consent of the owner or person in legal control or possession.”  Property owners would still be free to invite armed friends, family and service providers onto their land.  They would just have tell them or post a sign that guns are welcome.

Changing to a “no carry” default has broad public support.  We conducted a national, representative survey of 2,000 Americans, and found substantial majorities said they would prefer a default rule that required service providers or friends to seek permission from a property owner before they carried a firearm into their home (72.2% and 67.9% respectively).  Our results were the same in each and every region.  For example, only 28% of Southern respondents thought that service providers should be able to bring a gun without the landowner’s permission.

The survey results were even more lopsided with regard to hunting where more than 4 out of 5 respondents in each and every state rejected the default right of strangers to hunt on other people’s property.

A smaller majority (55.8%) preferred a no-carry default rule into retail establishments, but only about 1 in 4 thought that employees should be able to bring guns to work without the employer’s permission.  So regardless of the context — home, retail, or employment — most people thought that guns should not be carried onto other people’s property without their express permission. 

And again these results varied little by region.  If anything, statistical regressions showed that Southern respondents were less slightly likely than other regions to support the current carry defaults.  Red states and blue states may differ in their preferences about many social issues, but the citizens of these jurisdictions hold substantially similar beliefs about right of property owners to control the possession of guns on their land.

Flipping the default to a presumption of “no carry” on other people’s land can radically expand the spaces that are de jure gun free.  59.9% of all land in America is privately owned.  Under a flipped law, many landowners would stick with the no-carry presumption. 

Restricting the places where guns can be possessed can not only reduce the likelihood of impulsive misuse of firearms — a likely explanation for why states like Missouri already have “no carry” default rules for bars — but also the settings (especially automobiles) from which guns can be stolen.

The repairman has a Second Amendment right to bear arms, but you have a right to control whether people carry guns onto your land.  Lawmakers are right to respect of rights of individuals to purchase and possess firearms, but they can do a better job of protecting the rights of land owners to decide who can and cannot bring guns onto their property.

Ayres is the Townsend Professor at Yale Law School, where Jonnalagadda is a student.

Older Posts
Newer Posts