Ayres and Vars: Standards Have Evolved So Property Owners Should Affirmatively State Whether Concealed Carry is Allowed

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The law of trespass has long hinged on legal inferences about what is and isn’t an implied invitation. A girl scout may ring your doorbell to sell cookies, because your doorbell and the paved walkway to your front door implicitly invite that behavior. But the same scout might very well be trespassing if she walked around to the back of your house.

The law of implied invitations has evolved over time. For example, over the course of the 19th century, most states reversed the default rule as to whether domesticated cattle were permitted to graze on another owner’s land, thereafter placing the burden on the visiting rancher to obtain that owner’s express consent. More recently, some cities have flipped the default and now prohibit peddlers from solicitation on private property without the owner’s consent.

The evolution of implied invitations to enter private property has also applied to gun use. Traditionally, armed strangers were permitted to enter onto unimproved rural land to hunt — unless the owner posted “No Trespassing” signs along the land’s perimeter. But now half the states have flipped the presumption so that it is trespassing to hunt on private property without the owner’s consent.

The law of implied invitations evolves because social norms change over time. Customers generally understand that, by default, they are not allowed to bring their (non-service) animals into a hotel room or a restaurant. They must look for “pet-friendly” or “pets allowed” establishments. But customs can change, and it is reasonable for the law to reflect that change. …

In light of this evidence, New York and other states should respond to the court’s injunction by enacting a new requirement that businesses holding themselves open to the public affirmatively state whether or not they want patrons entering their property to carry weapons.

An “affirmative choice” rule of this kind will make clear that it is the property owner who is making the decision, not the government — and so there is no government restriction on the right to bear arms, or even a finger on the scale for or against concealed carry. A neutral law of this kind cannot violate the Second Amendment.

—  Ian Ayres and Fredrick Vars in Patrons Packing Heat: Businesses Should Be Required to Tell Customers Whether Guns Are Allowed

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  1. I want to see the following article discussing the property owner’s, especially the commercial owner’s liability if they bar concealed carry.
    P.S. What if the proprietor fails to post anything?

    • Missouri_Mule Esquire Emeritus,

      P.S. What if the proprietor fails to post anything?

      I came to pose the same question–and provide a comment as well. And here is my comment: if the default position of the law is that concealed carry is prohibited without affirmative signage, then government has absolutely taken a position to prohibit concealed carry. In other words Ian Ayres and Fredrick Vars are lying in their statement, “… so there is no government restriction on the right to bear arms, or even a finger on the scale for or against concealed carry.”

      • There is a l so the issue of insurance. For example most malls don’t want to deal with it at all but their insurance carriers insist they post their buildings as no gun zones or they will be charged substantially higher rates.

  2. This is a very misshapen and stretched and perverted self-serving interpretation of “The evolution of implied invitations”.

    • The stories coming from the women that experienced Hamas collecting reparations should put an end to women ever arguing for disarmament but in typical female fashion many of them will be apologists for Hamas and will conclude that only if we were all just a little nicer this wouldn’t have happened and being a little nicer of course involves mandatory defenselessness.

    • LOL, I walked into the jailhouse visit the prisoner place(I’d been there before,
      no metal detector)with a gunm. I came out to the car and my ride said , ” Are you crazy? Didn’t you see the sign.”
      I said “Sure but that picture is a Beretta, this heres a Tokerav.”

      • once i was relaxing in a cell and brightened up when i remembered the flask in my snowmobile suit pocket.

        • Better to be judged by 12. Than carried by 6. Which is happening more and more to unarmed innocent citizens. I even carry in the police station, sheriff’s office and the courthouse. Why, because I can and the law allows for it. Votes matter.

        • “once i was relaxing in a cell…”

          Pray tell, what inspired them to invite you to stay with them for awhile? 🙂

  3. One doesn’t require the leave of a property owner to exercise his rights on that property – provided that one has implicit legal reason to be on the property. That is, when I come to visit, I’m not required to check that you will permit me to exercise my rights under the law. “Hey, Joe, you don’t mind if I breathe while I’m here, do you?” Rights are rights, and, despite what Democrats would have you believe, you need no permission from anyone to exercise your rights.

    This is a part of the moronic “preferred pronouns” nonsense, and that “lived experience” idiocy. Confuse issues, confuse nomenclature, confuse everything, so that when they get you in court, they can make the most outrageous claims, leaving you defenseless.

    • Or, especially, respectfully exercise your First Amendment right.

      Also, they use a false equivalence to make their case. Entering onto someone else’s land is NOT equivalent to bearing a firearm. Encroaching on other people’s property is not protected by the Constitution while carrying a firearm is.

  4. “Traditionally, armed strangers were permitted to enter onto unimproved rural land to hunt — unless the owner posted “No Trespassing” signs along the land’s perimeter. But now half the states have flipped the presumption so that it is trespassing to hunt on private property without the owner’s consent.”

    BS – I don’t know where this/these idiots grew up but – not your property you stay off it.

    • We used to hunt on non posted land, never was a problem until the professional deer hunters started leasing all the farm land.
      I think its illegal to look at soy bean fields now. Eyes forward.

  5. Am I missing something?

    How is the government REQUIRING a business to post an affirmative assent sign NOT “putting a finger on the scale”? Since it thereby presumes that every business not so posted is a a gun free no carry zone, by government demand.

    • “Am I missing something?”

      no, you aren’t missing anything.

      “Since it thereby presumes that every business not so posted is a a gun free no carry zone, by government demand.”

      that’s exactly what this self-serving perverted thing does.

    • You weren’t supposed to think about the two contradictory lines at the same time.
      Clearly you didn’t go to an Ivy League school, or you’d understand that.

    • The way I read it, all this law would require is that the property owner make a choice, and post what that choice is–no carry or carry allowed. On the other hand, Texas has long had a law that a property owner post a specified sign if the owner wanted to ban carry.

      • “…Texas has long had a law that a property owner post a specified sign if the owner wanted to ban carry.”

        I like Texas’s system. It makes it easy to appear that guns aren’t allowed, but if the sign isn’t the specified size and location, it doesn’t apply. It’s a wonderful wink-wink, nudge-nudge way to deal with the a-hole gun-haters…

  6. A few years ago I had a friend, now deceased, who owned a popular restaurant. There was a sign prominently displayed over the bar letting patrons know that carrying firearms was not only allowed, it was encouraged. He never had any trouble.

  7. Owners/managers/proprietors have every right to establish who they will and wont serve. Wether it’s about carrying guns or baking cakes.

    I have every right to decide what company/business I patronize.

    Those that forbid guns across the board make it quite clear to everyone that they do not care who gets shot by who or for what, to include patrons and employees. These are places to avoid if possible.

    • Not True; the issues are entirely different. A business owner may decide whether or not guns are permitted on or in a property he or she owns, but as a “public accommodation” a business owner may not refuse to sell his cakes or conduct his business with a person because of race, creed, gender, being or not being a gun owner, etc. And yes, you may choose the businesses you patronize.

      • Private businesses should have the right to refuse service to anyone.

        I should have the right to refuse patronage to any business.

        This is a double edge sword and flows both ways with price to be paid by both.

      • “public accommodation” is exactly the point. A business gives the customer what they want or they don’t. Some want the freedom to wear a sidearm. Others want the freedom to have the cake of their choice.

        For me, if it’s an issue then I’d be very likely to just go somewhere else.

  8. If you don’t want something on your property, it is your duty to make that clear. No sign means all lawful activity is permitted. Rights are “fail-open” and exist unless clearly stated otherwise.

    It is the store owner’s responsibility to announce their tyrannical stance with signs like no guns, knives, Irish, blacks, whatever allowed.

    • And I need to know where I & my money are not wanted. Especially in ILLannoy. Nearby Indiana fairly rarely. My church(in Indiana) encourages carry!

      • Possum
        Saw this the other day and thought of you…

        That’s the thing about salted down possum, it’s just as good the second day.
        — Jed Clampett


    • This is true for commercial properties, but is of questionable application to residential (private property not open to the general public) property. Personally, if I see someone prowling around my private property with a gun, I am calling 911 and preparing for a shootout.

      • commercial “open to the pubic” venues should not be allowed to disarm the lw abiding. If I can walk along a public street or sidewalk lawfully, I can also walk thrugh the big open front doors of WalMart, PigglywIggly, Dunkin donuts, or Mc Donalds/Starbux (but who goes there anyway?) In my state, public facility owners MAY post no guns here signs, but they MUST to be binding, comply with state established standards for form and placement relative to doors. Even if I see the standard glock outline in a read circle aling the bottm edge of the front door to the bank, I know that is NOT state compliant and therefore of no weight. I walk on past them all like they were not even there, because under the law, they are not. And if a shop keeper ever “makes” me and demands I disarm or leave, I will simply tell him i choose to leave rather than be defenseless on YOUR floor knowing YOU will not bear any responsibility for any harm to come my way.
        I ignored the stupid and harmful mug nappie demands everywhere, and was rarely ever challenged. I pushed back when challenged, infirming the nutter I cannot wear the things “safely”. And I would quietly stand my ground. The thing on my mug they can SEE, the thing on my hip they rarely can.

        • It is not a public venue disarming the law abiding as long as the law abiding have options within reason.

          Go somewhere else.
          Store chains run by anti-American commies thwarting laws and rules soon see themselves closing down large segments of their business in cities like LA.
          Children by law must attend school so as a result of school policy, more people are opting for home school.
          Twitter stomps on free speech rights resulting in the company getting sold.
          Facebook does the same and results in TruthSocial.

          Some things do take a rich person actually doing something but we are seeing the process get played out as it should. It is not always required that we directly boycott them. They will hurt themselves. Stores that forbid guns soon see criminals walking in with guns.

  9. This is just an attempt to bypass the court ruling that threw out the presumption that if you weren’t given an affirmative permission by way of signage it was forbidden by law.

    I prefer the way it is here in Georgia: a no guns sign on a business not serving alcohol means nothing. They can still ask you to leave, but if it is concealed how do they know you are carrying?

      • I will admit to being a rather obviously male non pink/blue/green haired, slightly overweight, slightly balding, person who does not identify as being anywhere on the LGBTQQAAIP2+ spectrum or being anything other than basic human. So they might guess I am carrying, but will need to demand I leave (and I would need to refuse) before they could call the cops to haul me out of there.

    • You do have a right to those and other activities according to the Constitution. The 9th and 10th amendments cover all the rights the first eight didn’t explicitly mention.
      Grazing or hunting on another’s property without permission uses that person’s resources, like stealing. Walking into a store during business hours is not the same.

    • runming my stock or hunting game on someone else’s land is a benefit accruing to me, and at the owner’s expense. Carrying my piece in peace is neutral, demands/takes naught from the property owner except possibly some unquantifiable valueless bit of mind-warp within his cranium. And I will happily leave HIM to deal with that mental anomaly. IF he detects my carry piece.

  10. I agree with the argument that it is illegal and against your Constitutional rights to make a sign or any law restricting ANY Constitutional right – period! That would make a pseudo patchworks of laws and regulations all over the place where a citizen could be made into a passive criminal – like it is in some states right now. And Btw, IF one would choose to honor owner signage prohibiting weapon carry, it would be assumed the owner is providing sufficient protections on the premises and could be held legally liable if they did not.

    • carry along a preprinted form for the owner/manager to sign which puts him in the position of being civilly and criminally liable for any harm coming to yourself directly arising from his desire to disarm me whilst upon his premises.

      Might be fun for one of these firearms defense lawyers to gin up some legalese to that effect and offer the file for any of their “members” to reprouce. It would be a great way to make at least some store owners comprehend that by disarming ME they put ME at risk in the event of trouble on HIS place, against which HE demands I be defenseless.

    • Met the bail.
      I’m sure he will show up for court.
      I believe one of the worst nightmares for the Powers That Be is the end of racism.
      As long as the Zebras are kicking each other the Lion has nothing to fear.

  11. Let’s face reality and be logical about this. There is a reason why 25 caliber and 32 caliber guns were very popular a long time ago. Because they were extremely easy to conceal and extremely difficult to detect.

    Even the gun industry is having to face the truth without admitting it publicly. Which is why you’ve gotten all of these compact, subcompact, 9mm handguns over the last few of years.

    There are lots of people who have already figured this out before the gun industry did as a whole. Because that is why the keltec P32 and the Beretta. Tomcat and Bobcat have been in production for decades now.

    Those that believe they need to carry a duty size firearm all the time. Most of you are probably going to have to change your wardrobe.

    Small handguns were always marketed to women. Because the industry knew very well that women are not going to change their wardrobe. And that is the same to this very day.

    • I do have a tiny thing, in 9mm Kurz, which I carry when out on my bicycle, It fits perfectly in a small pistol rug in one of the back pockets in my jersey. I’ve been stopped/harrassed a few times by belligerent coppers huffing and puffing, my ID is in my wallet in a different pocket, and J know I am not required to show that anyway, only identify myself (which makes them mad but they know that is all that is requried). Not one time has any copper ever gotten the slightest hint I was armed, and none have ever asked me even though they know they can, and that I must answer truthfully. That lump in the right rear jersey pocket is simply read as a tool rool which many other cyclists carry. Never had anyone ever even suspect.
      On the other hand I do carry a full sized nine everywhere else I go. Spare mag in pocket keeper. Not content with a tiny one for EDC. Armed cyclists are so rare I think anything presented would have a significant effect on the outcome of that confrontation.

      • When I carry my full size 9mm and a spare 17 round mag. I’m not wearing a swim suit.
        But I do walk around Cops open carrying my gun. With a big smile 😀.

      • “Armed cyclists are so rare I think anything presented would have a significant effect on the outcome of that confrontation.”

        Not where I live, and the folks I ride with…

  12. Unless it’s a court building or a military reservation. I carry wherever I go. I will not be caught without some form of firearm self-defense. And if caught, I’m sure “the secretary will disavow any knowledge of my actions”. And I will have to face the consequences on my own.

    And I accept that responsibility that comes along with having Liberty.
    So train with your gun. Practice with your gun. This way you will have the confidence necessary if that terrible time comes.

    Register to vote and work to keep any George Soros funded prosecutor out of office.

  13. Back up in the north country it was considered bad form and possibly suicidal to hunt on someone else’s private land. Always best to get permission and today, get it in writing.
    On Concealed carry, etc. I carry regardless of signage. I’d rather take the chance of being asked to leave ahead of taking the chance someone notices me putting a weapon into the lock box, or the chance of some dumbazz deciding me, or the shopkeeper would be an easy target. I do not consent to being easy prey for some punk.

  14. Because businesses don’t want to be required to post that their customers are allowed to enter armed?
    It is not like criminals follow “No Guns” signs, why expect them to honor these?
    In reality it is, like nearly all gun laws, simply a trap for the law abiding.

  15. I really have no problem with business posting.

    No firearms=no business.

    No posting=business.

    Firearms welcome=business.

    Bring it on and make life easier.

  16. A businessman should have the right to govern his own property. If he does not want people with guns in his establishment that should be his right.

    I might add that if a businessman allowed concealed carry and some moron had an accidental discharge that resulted in another customer being injured or killed guess who gets sued for the most money??? Not the moron who caused the accident but the business owner who allowed concealed carry in his establishment because it is assumed the businessman has more money and can pay the bulk of the lawsuit.

  17. “In light of this evidence, New York and other states should respond to the court’s injunction by enacting a new requirement that businesses holding themselves open to the public affirmatively state whether or not they want patrons entering their property to carry weapons…”

    Oh good, because more regulation well help. Incidentally, the aspect of law requiring a “guns allowed” sign has already been stayed and will almost certainly be struck down.

    Also, not for nothing, but if I bring a pet into a store that doesn’t allow it I can’t be arrested and thrown in prison for 10 years. They can ask me to leave and, if I refuse, that could be a trespass. That’s it, though.

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