The regulation of guns has been one of the most hotly debated public policy issues in the United States throughout the country’s history. But, up until recently, it has always been just that—a debate about public policy. Two recent developments have changed the landscape and moved the debate about publicly carrying firearms from the realm of public policy, to the realm of private decision-making and private law. First, laws related to publicly carrying firearms have been dramatically loosened throughout the United States to the point that, in the vast majority of states, anyone who is legally allowed to carry a firearm is also eligible to legally carry a gun in public. Second, truly public spaces—spaces owned by state and local governments and open to all—have shrunk considerably and been replaced by spaces that are owned by private businesses but open to the public such as big box stores, shopping malls, building plazas, and even sidewalks. The upshot of these two trends is that the decisions businesses make about whether to allow guns on their property will have a large impact on the degree to which the general public is exposed to guns when going about their daily lives.
This Article argues that businesses can be held accountable for the consequences of these decisions through tort liability. Specifically, most businesses should be subject to premises liability if they do not have an explicit and clearly communicated policy prohibiting customers from bringing guns into their stores when the failure to have such a policy causes a customer’s injury. The Article explains that assigning such liability will not interfere with the goals of permissive concealed carry laws or the rights protected by the Second Amendment. Indeed, such liability would not even force businesses to ban guns, instead it would only force businesses to internalize the costs of those decisions. The Article concludes by situating the controversy over guns in private businesses within a larger trend of the privatization of the gun debate.
The full text of this Article is available to download as a PDF.