Gun rights advocates are drinking the Kool Aid again, having just sponsored what may be the dumbest bill ever introduced in the Maine Legislature.

The bill, blandly titled “An Act Relating to Firearms Exclusions in Certain Locations,” would, if enacted, turn tort law on its head and probably violate constitutional and common-law protections of private property in the bargain.

The bill would make an owner who prohibits possession of firearms on his property liable in civil suit to anyone “who suffers bodily injury or death or incurs loss or expense … as a result of conduct occurring” on that property.

The owner’s liability could be triggered by harm suffered due to “artificial and natural hazards that are able to be defended against, to the conduct of other invitees, trespasser and employees of the person and to vicious and wild animals.” In other words, it encompasses almost any conceivable injury that could be inflicted by man or beast, whether invited or uninvited.

The legislation doesn’t appear to require proof that the injury or harm would likely have been avoided absent the firearms bar. A plaintiff only has to prove three things: he was legally authorized to possess firearms, the defendant prohibited him from doing so, and the defendant was not barred by federal or state law from allowing firearms on the property.

In effect, to use the statutory terminology, if an owner forbids firearms on his property, he must assume “absolute custodial responsibility for the safety and defense” of any unarmed person present there.

Ironically, Sen Eric Brakey, R-Auburn, a libertarian, is co-sponsor of the bill. Brakey who often sponsors quirky legislation in order to call attention to himself and his expansive view of the rights of individuals versus government, has, in effect, co-authored a measure which would constitute a novel governmental encroachment on individual liberties and property rights.

Apparently, that’s OK with Brakey as long as it serves the purpose of creating a universal gun-toting society.

To understand why this bill is so upside down, it’s necessary to put it into legal context.

Ordinarily, under the Second Amendment of the Constitution, the government can’t prevent citizens from possessing firearms, except for certain categories of people considered dangerous, such as convicted felons and those subject to domestic violence restraining orders, and in certain sensitive locations like schools and courthouses.

But the Second Amendment applies only to government, not to private property owners. The latter, whether homeowners or commercial proprietors, can forbid firearms on their property for any reason, including personal aversion to guns, concerns about safety, avoidance of alarm to other guests, or for no reason at all.

An almost reverential respect for private property is baked into Anglo-American law. It’s best expressed in the influential 18th treatise on English common law, William Blackstone’s Commentaries, which observed that “the law … has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle.”

Protection for private property rights was incorporated into the Fifth Amendment of the Constitution, which provides, in part, that no person can “be deprived of … property, without due process of law” or “just compensation.”

Owners do have to submit to reasonable public regulation of their property rights under what is known as the “police power” of the state in order to protect public health, safety and welfare (as, for instance, through the enactment of building and fire codes). If such regulation becomes too onerous, however, it may cross the line into what is considered an unconstitutional “taking” and become subject to court challenge.

Owners also have a private duty at common law to avoid negligently exposing those on their property to unreasonable hazards they knew or should have known about. This duty of care has been elaborated by judges in carefully crafted decisions spanning centuries. A breach of the duty, might, for instance, allow a person injured falling through a rotten stair or stepping on a protruding nail to successfully sue the property owner. The owner, however, wouldn’t be obliged to pay compensation for a non-negligent mishap merely because the accidental injury occurred on his property.

Brakey’s bill imposes a much more onerous duty on property owners, tantamount to an assault on Blackstone’s castle walls. They would essentially become unconditional insurers of the safety of their guests (and perhaps of trespassers as well). Worse, they could be subject to risk of liability from those injured by the very weapons the bill pressures them to accept.

Imagine, as a hypothetical example, that a July 4th poolside party is held in Turner, where a homeowner invites 50 friends to enjoy beer, grilled hotdogs and corn-on-the-cob. In our hypothetical, Brakey’s bill is now law. The homeowner has two young children and normally keeps no guns on the premises for safety reasons. He grudgingly decides, however, to permit his guests to bring their firearms to the party to avoid potential liability under the new law.

Of the 50 guests, five bring handguns. Suppose that an armed guest becomes intoxicated, gets into a heated altercation with another guest and fires a shot at him, killing or injuring him or a hapless bystander who steps into the line of fire. Or suppose a guest takes a swim, leaving his gun wrapped in a towel on his pool chair, where’s it’s found by a child who accidentally shoots himself playing with it.

Is the property owner liable for allowing a known dangerous condition to exist on his property?

In any event, are such risks worth the benefits of arming guests against the remote possibility that the party will be crashed by armed and dangerous enemies, foreign or domestic?

I suppose anything’s possible, but seriously what are the chances of a home invasion compared with the odds of someone getting shot in a child’s misadventure, a drunken argument or an act of domestic violence?

A legislator is free to introduce any bill that suits his fancy, and sometimes a shiny gold nugget will turn up amidst the dross. Brakey’s bill, however, isn’t a shiny nugget. It’s just junk!

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 10 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer.


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