According to gun-rights attorney Tom Grieve, a former Wisconsin prosecutor who now runs a large defense firm, a quiet legal trend is rolling across the country: the private-property default rule. In his view, five states have already embraced some version of it and more are lining up. Grieve argues this isn’t just another skirmish over signage or technical compliance – it’s a structural attack on everyday carry that flips centuries of American practice on its head. I tend to agree: if the rule stands, it effectively makes “no carry” the default everywhere the public goes, without owners ever having to say a word.
What the Private-Property Default Rule Actually Does
As Grieve explains it, American custom has long been simple: if private property is open to the public – a store, an office lobby, a gas station – you can carry there unless the owner objects. Owners have many ways to object: a posted sign, a verbal request, a policy communicated by staff. The new default rule inverts that. Now, carry is illegal unless the owner explicitly opts in. Think of it as forcing a “guns allowed” sign for you to exercise a constitutional right. Grieve’s blunt assessment is that this takes a presumption of liberty and replaces it with a presumption of prohibition.
Hawaii’s Act 52 as the Template
Grieve points to Hawaii’s Act 52 as the cleanest example. Under that law, the government effectively decides that property owners do not want armed, law-abiding citizens on premises open to the public – unless the owner takes affirmative steps to say otherwise. It’s the state telling you what your property preference is until you jump through hoops to contradict it. My take: that’s not just anti-gun; it’s anti-property-owner. We’ve gone from “my castle, my rules” to “the state’s castle, your compliance.”
Why Grieve Says It’s Unconstitutional Under Bruen
The post-Bruen landscape (the Supreme Court’s 2022 decision) is clear on one core point: when the government burdens Second Amendment conduct like carry, it must show historical tradition for the regulation. Grieve says this default rule has no such pedigree. For generations, property owners could exclude firearms, yes – but the government never presumed a universal exclusion for everyone, everywhere, unless owners posted special permission. That’s new. And under Bruen, “new” without historical roots is a constitutional dead end.
The DOJ’s Amicus Brief – And Why It Matters
Grieve highlights something you don’t see every day: an amicus curiae filing from the Department of Justice arguing this scheme “defies, indeed effectively nullifies, the general right to publicly carry arms that Bruen recognized.” He emphasizes that the DOJ isn’t a party in the case; it volunteered that position because the issue is nationally significant. It’s a rare moment where even the federal government is telling states: you can’t destroy a right by flipping default settings.
Not Just a Regulation – A Functional Ban
One of Grieve’s most compelling points is practical: most owners don’t post signs about anything – no umbrellas, no dogs, no megaphones – and they’re certainly unlikely to post “guns welcome” placards that invite political blowback. If carry is illegal unless an owner opts in with conspicuous signage or unambiguous permission, then carry becomes illegal in most places by default. That’s not a “time, place, manner” restriction. As Grieve puts it, it’s a functional ban on daily life: gas stations, big-box stores, restaurants, parking lots – off limits unless the owner performs a government-defined ritual.
The Discriminatory Burden on Property Owners
Grieve also flags the rule’s lopsided burden on owners who want to allow carry. To comply, they must decipher posting requirements, craft precise language, and train staff on giving “unambiguous” permission – because a nod, a wink, or silence doesn’t count. Meanwhile, owners who prefer to exclude everyone don’t have to do a thing. In effect, the state punishes one side of a policy choice (respecting constitutional carry) while rewarding the other (banning it), using administrative friction as a cudgel. That’s not neutral governance; that’s outcome engineering.
The Circuit Split That Dragged the Supreme Court In
Per Grieve, the rule is already producing conflicting appellate decisions. In the Second Circuit, judges struck down New York’s version in Antonyuk v. James. In the Ninth Circuit, by contrast, judges upheld the opposite approach. This is the classic recipe for Supreme Court review: same federal Constitution, different results coast to coast. Grieve believes the justices took the bait precisely because this isn’t a niche island issue – he notes that more than one-fifth of Americans now live under regimes adopting Hawaii’s logic. When a constitutional right evaporates for 20% of the country on a technical “default,” the Court tends to notice.
Property Rights and the First Amendment Thought Experiment
Grieve offers a simple thought experiment: imagine if your right to free speech disappeared by default the moment you walked onto private property open to the public unless the owner posted “Free Speech Allowed” signs. We’d call that preposterous – and rightly so. Yet with the Second Amendment, some states insist that’s just fine. My view: if we wouldn’t tolerate default suppression of other enumerated rights on private property open to the public, we shouldn’t tolerate it here. Let owners decide. Don’t let the state pretend to be every owner’s spokesman.
Why “Quiet Adoption” Is the Danger
When a legislature passes an outright ban, voters notice. When a state shifts a default, most people don’t. Grieve warns that five states have already crossed this Rubicon without the fanfare an explicit ban would trigger. That’s the strategic genius of the rule: it looks like process, not prohibition. But if your carry permit or constitutional carry status becomes meaningless at almost every door you walk through, the right survives on paper and dies in practice.
Real-World Consequences for the Law-Abiding
Grieve’s bottom line is brutally pragmatic: this policy criminalizes ordinary behavior by ordinary people. You can’t fill your tank, grab lunch, pick up prescriptions, or park in a private garage while carrying – unless you’ve scouted every location for an opt-in sign or negotiated permission in advance. Meanwhile, criminals, by definition, aren’t seeking permission. The effect is predictable: the conscientious disarm; the ruthless don’t. That is not public safety – that’s disempowerment.
What the Supreme Court Should – and Likely Will – Say
Grieve expects the Supreme Court to “drop the hammer.” Under Bruen, the state bears the burden to justify a restriction with robust historical analogues, not modern policy preferences dressed up as defaults. There isn’t a serious historical tradition of government-imposed universal exclusion on private property open to the public. There is a long tradition of owner choice. The Court can preserve both: reaffirm carry as the rule in public-facing spaces unless and until owners say otherwise. That’s how America has worked for generations. It’s how it should continue to work.
A Better Path: Owner Choice, Clear Signals, No State Ventriloquism
Here’s my suggestion, consistent with Grieve’s core point: keep the presumption of liberty; keep owner sovereignty. If an owner wants to exclude guns, the state can define simple, content-neutral signage rules and trespass penalties for ignoring them. If an owner wants to allow carry, they can do nothing – just as they’ve always done. The state should stop pretending to speak for every owner who hasn’t spoken. Rights shouldn’t hinge on government-mandated opt-ins, especially when the default chills the right into irrelevance.
UP NEXT: “Heavily Armed” — See Which States Are The Most Strapped
Image Credit: Survival World
Americans have long debated the role of firearms, but one thing is sure — some states are far more armed than others. See where your state ranks in this new report on firearm ownership across the U.S.
Mark grew up in the heart of Texas, where tornadoes and extreme weather were a part of life. His early experiences sparked a fascination with emergency preparedness and homesteading. A father of three, Mark is dedicated to teaching families how to be self-sufficient, with a focus on food storage, DIY projects, and energy independence. His writing empowers everyday people to take small steps toward greater self-reliance without feeling overwhelmed.
