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.
