Arbitrary and Irrational to Distinguish Private Property from Public Property?

So conclude three of the seven Justices of the Ohio Supreme Court in Ohioans for Concealed Carry, Inc. v. City of Clyde, decided yesterday. Fortunately, the four-Justice majority takes a different view, but the view of the three dissenters still seems to me noteworthy, because it denies the legitimacy of what strikes me as an utterly fundamental and proper distinction.

First, some background: Ohio is one of the 40 or so states that allows pretty much any law-abiding adult to get a license to carry a concealed gun (the exact number depends on how you classify the laws in some states). Ohio law provides that a licensed person "may carry a concealed handgun anywhere in this state," with some exceptions, including (among other things) private property when the private property owner forbids such carrying. So a licensed person may carry on his own property, private property where carrying is allowed, an most government-owned property.

The City of Clyde, despite this, banned carrying concealed guns in city parks. Ohioans for Concealed Carry challenged this, on the grounds that the state law trumps the city ordinance. The Ohio Constitution does give cities considerable powers to enact "local police, sanitary and other similar regulations" but only when they "are not in conflict with general laws," so the question is whether the concealed carry law is a "general law." To be a "general law," according to Ohio precedents, "a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally." The majority concludes that the concealed carry permit law is such a general law.

Here's where the dissenters' arguments come in: Two of the dissenters (Chief Justice Moyer, joined by Justice Lanzinger) conclude that the law isn't a general law because it provides an "exception for private property owners." The dissenters of course acknowledge that a law can be general though it has exceptions (nearly all laws have exceptions of some sort), "so long as the classification is not 'arbitrary, unreasonable, or capricious.'" But the dissenters conclude that the "different treatment of public and private property is patently arbitrary and unreasonable."

This strikes me as shockingly wrong. Of course private property can be reasonably seen as quite different from government-owned property. Private property owners have historically had very broad control over their own property; they could restrict behavior on the property for any reason or no reason at all, simply because of their property rights. Such rights have been limited in various ways, but they are still the rule and the limitations the exception — and in any event, it is quite reasonable to preserve or even expand such rights.

Government property, on the other hand, is owned by the government, which bought it with other people's money, and holds it in some measure in trust for the people generally. It thus makes perfect sense for the government to be more restricted in its use of its property. The U.S. Constitution of course takes this view, since it applies the First Amendment and other constitutional provisions to government property (at least in some measure) and not to private property. The same goes for the Ohio Constitution, see, e.g., Eastwood Mall, Inc. v. Slanco, 626 N.E.2d 59 (Ohio 1994). It may well be reasonable — within the constraints of the state and federal constitutions — to give local governments property rights that are comparable in force to private property owners' property rights. But it's also reasonable to take the opposite view, and to have state law limit what the government may do as to public property.

Thus, the dissenters hypothetical that supposedly proves their case just doesn't make sense. Here's what the Moyer dissent says:

Suppose that there are two parks in Clyde on opposite sides of the street; Park A is owned by the city, and Park B is owned by a private corporation. At Park A, a person with the requisite license could carry a concealed handgun at the park, as the statute does not prohibit the carrying of a concealed handgun in public parks. The city is powerless to change this fact; concealed handguns must be allowed in the park, unless one of the limited exceptions applies .... At Park B, ... [t]he owner of the park can decide to forbid concealed handguns for any reason or no reason ....

The single fact that Park A is publicly owned and Park B is privately owned changes the rules for whether concealed handguns will be allowed in the parks. The statute completely regulates public property while having essentially no effect on most forms of private property ....

This different treatment of public and private property is patently arbitrary and unreasonable; it affects one class of land solely on the basis of ownership, which has little to do with the relative safety of allowing concealed handguns on a particular type of property.

But the different treatment between Park A and Park B merely mirrors the different treatment of the parks under the First Amendment and under other constitutional guarantees. Public Park A generally can't eject patrons because of their speech; private Park B can. The distinction is simply that the second park is private property, and subject to the private owner's private property rights. The first park is government property, and subject to the constraints imposed on the government by the U.S. Constitution, by the Ohio Constitution, and by the general laws of the state of Ohio.

The dissent goes further in footnote 2, arguing:

Although not a reason under our case law for concluding that R.C. 2923.126(A) violates the Ohio Constitution, one can only speculate about, indeed wonder, what statewide interest is served by a statute that nullifies and prohibits a reasoned conclusion by the elected representatives of local government that the presence of any number of handguns in a city park may be a threat to the security and safety of those using the park. Implementation of the state statute strikes a severe blow to the underlying principles of local self-government.

It is unfortunate that the passion of those who believe in the right of virtually any adult to carry a concealed weapon (subject to the statutory exceptions) has pushed aside the fundamental belief in Ohio that matters that directly affect the safety of a community may be determined by local government, where the voices of those citizens most directly affected may be heard and considered. No one outside the city of Clyde, or perhaps the county of Sandusky, has any legitimate interest in the regulations placed upon the use of a city park in the municipality of Clyde. We can only hope that those who believe that dogs should run unleashed in city parks or those who believe that alcohol should be consumed in city parks are not able to convince a majority of the General Assembly of the merits of their cause.

I should have thought the "statewide interest" would be clear: Many people believe that there's a human right to possess the weapons needed for self-defense, when and where such self-defense is necessary — though, like many such rights (including free speech, religious worship, and the like), the right doesn't extend to action on the private property of others.

The Ohio Bill of Rights echoes this, by saying that "The people have the right to bear arms for their defence and security"; the Ohio Supreme Court has rightly interpreted this language as securing an individual right to have guns for self-defense, though alongside other bill of rights provision it wouldn't extend onto objecting owners' private property. The provision has been interpreted as not securing a general constitutional right to carry concealed weapons, but the Ohio legislature has decided to go beyond the state constitution's mandates, and protect people's right to bear arms for their defense even more. This human right, the Ohio legislature concluded, trumps contrary judgments of local governments, just as many other human rights trump contrary judgments even when those judgments are made "by the elected representatives of local government." It's one thing to disagree with the legislature's judgment — but it strikes me as quite blindered to feel "one can only speculate about, indeed wonder, what statewide interest" the legislature think it's serving here.

Finally, Justice Pfeifer's solo dissent is even more striking: He concludes that the distinction between private property and public property — again, the same distinction correctly drawn by the caselaw interpreting the state and federal constitutions' bills of rights — itself "violates the Equal Protection Clauses of the Ohio and United States Constitutions," because

There is no rational basis to distinguish between private and public property owners in regard to their statutory ability to prevent persons from carrying firearms onto their propertyproperty. Clyde owns its municipal park. Is there any reason why the owner of this property, where families gather and children play, should be forced to allow people with guns to enter, while the private owner of a public space such as a shopping mall can bar from entry any gun-carrying citizens?

How about the notion that private individuals, as property owners, have rights that the government does not possess — is that really so irrational?

(Thanks to Dan Gifford for the pointer.)

Related Posts (on one page):

  1. Why Laws Treating Public Property Differently from Private Property are Not Irrational, and Often Completely Justified:
  2. Arbitrary and Irrational to Distinguish Private Property from Public Property?
Why Laws Treating Public Property Differently from Private Property are Not Irrational, and Often Completely Justified:

Senior Conspirator Eugene Volokh has done an excellent good job of taking apart three Ohio Supreme Court justices' opinions that claim that claim that state law has no "rational basis" for allowing private owners but not government to ban the carrying of concealed firearms on their land. But, as a property professor, I can't resist the urge to pile on.

In addition to Eugene's well-taken points, there are two other important and relevant distinctions between private and public property. First, most private properties that are accessible to the general public are subject to the constraints of market competition. Privately owned stores, recreation facilities, bars, parks, and the like compete with each other to attract customers. As such, there are likely to be different stores that cater to customers with divergent preferences. If many Ohioans prefer to go to a gun-free bar, it is likely that there will be establishments that are happy to accommodate them. Those who prefer to bring their guns with them when they drink can go to other bars that cater to their preferences.

By contrast, many government buildings carry out functions over which government has a monopoly, or something close to it. Consider court buildings, the registry of motor vehicles, welfare offices, and so on. People who seek to use these public services often have no choice but to go to the government buildings in question, regardless of whether the policies there fit their preferences or not. Basic economic theory suggests that it is often necessary to regulate the policies of a monopolist more tightly than those of participants in competitive markets.

Second, and closely related, market competition gives private owners a stronger incentive to accommodate consumer preferences than government owners have. If a private business allows too many guns on its premises, rendering them unsafe, that will tend to drive customers away and reduce the business' profits. The same thing is likely to happen if the business adopts overly restrictive policies and thereby alienates gun-owners who want to be able to take their concealed firearms with them. Businesses have strong incentives to weigh these considerations against each other and come up with a policy that satisfies the most customers at the least cost. On the other hand, a government office that adopts flawed policies won't lose money as a result. Indeed, the bureaucrats in question might actually benefit from reducing the number of people who seek out their services. They will continue to collect the same pay, while having to do less work.

To be sure, really egregious errors by bureaucrats might eventually be punished at the polls; perhaps the voters will pick new state legislators who might cut the offending bureaucrats' budgets or otherwise force them to change their ways. However, the "rational ignorance" of the electorate ensures that all but the grossest and most highly visible bureaucratic mistakes are likely to pass unnoticed by the public.

Obviously, there are some exceptions to these generalizations. A few private businesses are monopolists, and a few government offices are subject to more rigorous market competition than that generally faced by public sector entities. Nevertheless, these points are valid as a general rule. And that should be more than enough to satisfy the loose standards of the "rational basis" test that, as Eugene explained in his post, applies to this case. Indeed, I think it should be enough to satisfy even significantly more exacting judicial scrutiny. Overall, there are many good reasons to regulate government officials' use of public property more strictly than private owners' use of their own land.

Related Posts (on one page):

  1. Why Laws Treating Public Property Differently from Private Property are Not Irrational, and Often Completely Justified:
  2. Arbitrary and Irrational to Distinguish Private Property from Public Property?