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 States like Pennsylvania have outdated legal presumptions.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.