Is your dishwasher repairman packing heat? The case for ‘no carry’ gun defaults on private property

In New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court struck down New York’s proper-cause law, radically expanding the rights of people to carry concealed weapons in public. New York’s law required that anyone seeking an unrestricted public carry permit had to demonstrate a special need for self-defense distinct from that of the general community. The Bruen decision is going to make it a lot easier for tens of thousands of New Yorkers to receive concealed carry permits. When a similar law in Washington, D.C. was struck down in 2017, the number of concealed-carry permits increased by over 3,000 percent.

In the wake of Bruen, states will have a lot harder time defending the constitutionality of many traditional “top down” requirements. Legislators should be on the lookout for new kinds of “bottom up” regulations that empower individuals to reduce gun violence. A good place to start is for states to do a better job of protecting the rights of private property owners.

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. In all but three states and D.C., any visitor can, by default, carry a firearm into your home without your explicit permission. The repairman has a Second Amendment right to bear arms, but you have a right to control whether people carry guns onto your land.

A central attribute of property ownership is the right to exclude unwanted people from your land. Forty-seven states fail to adequately protect this right of landowners to control their property because they provide the wrong default rule regarding the right of invitees to bear arms. Property owners cannot make an informed choice if they don’t know they have to object (more than two-thirds of people are unaware of these default rules). And it is hard for a property owner to know that she needs to object when the objectionable firearm is concealed. 

The same problem exists regarding private commercial land. All 50 states permit individuals to carry their firearms into private retail establishments by default. Private businesses must post “No Guns” signs to make their stores gun-free, and these signs must often meet strict requirements. Many retailers fear customer backlash if they post signs either restricting or permitting gun carry in their stores. So, they are inclined to stick with a state’s default rule regardless of their preferences.

An even more egregious failure to protect property exists in half the states regarding hunting on rural land. In 25 jurisdictions, a gun owner by default is allowed to carry a firearm onto the rural land of a complete stranger, unless the landowner goes to the expense of posting “No Trespassing” signs at regular intervals along the perimeter of their land or otherwise marks their territory. Tragic cases have occurred in which homeowners have been killed by hunters who entered the land without ever asking permission.

Lawmakers should flip to “no carry” defaults because a substantial majority of Americans want the rights of property owners to be better protected. We conducted a national, representative survey of 2,000 Americans in which 72 percent of respondents said they would prefer a default rule that required service providers to seek permission before they carried a firearm into their home and 68 percent had the same preference regarding friends and guests.

The survey results were even more overwhelming regarding hunting: 88 percent of respondents rejected the default right of strangers to hunt on other people’s property. A smaller majority of respondents (56 percent) preferred a no-carry default rule in retail establishments. Regardless of the context – home, hunting or retail – most people thought that guns should not be carried onto other people’s property without their express permission. 

Some states have flipped these defaults consistent with public sentiment. Alaska, D.C., Louisiana and South Carolina require guests to receive explicit permission from a homeowner before carrying a firearm onto their property. Twenty-five states have flipped the hunting default. But no states have flipped the default for retail establishments. Some, such as Wisconsin, even immunize from tort liability any establishments that permit guns on their premises — but they do not extend this immunity to businesses that exclude guns.   

Switching to a “no carry” default 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.”  

Flipping the default in this way would not violate the Second Amendment. My right to bear arms ends at your property line — just as my right to free speech doesn’t give me a right to erect signs on your yard. Property owners would still be free to invite armed friends, family, customers and service providers onto their land. They would just have to tell them or post a sign that guns are welcome. 

Gunowners would still be free to possess and bear arms in their home and on public streets and other public lands. They just wouldn’t have a right to carry onto the other people’s land unless the landowner invited them to bring their firearms. 

Nearly 60 percent of all land in America is privately owned. Under a flipped law, many landowners would stick with the no-carry presumption. So, flipping the default to a presumption of “no carry” on other people’s land can radically expand the spaces that are gun free. Empowering property owners to create these gun free zones can reduce gun violence by letting landowners better defend themselves and their property.

The Second Amendment protects individuals’ ability to defend their homes by arming themselves. But another way to defend your home is to stop other people from bringing weapons onto your land. A “no carry” gun default allows private property owners to determine when and how firearms are brought onto their property, consistent with the Second Amendment’s core interest of self-defense.

Until now, homeowners in New York did not have to worry much about the possibility that repair people or guests to their homes would be armed. Very few people had concealed carry permits and those who did were well vetted. But that is about to change — with a likely vast increase in the number of issued permits. Now is an especially good time to give landowners a better way to defend themselves and their property. 

Ian Ayres is a professor at Yale Law School and the Yale School of Management. He is an author of “Weapon of Choice:  Fighting Gun Violence While Respecting Gun Rights.” Spurthi Jonnalagadda is a Yale Law School graduate who will be starting as an associate at Skadden, Arps, Slate, Meagher, & Flom in September.