Guns are not allowed in Restaurants: The forensic examination of the anti-gun claims

by Ken Hanson, Esq.

Ohio has now passed bills in the House and Senate that would allow concealed carry licensees to carry firearms in liquor facilities. Since this legislative action is contrary to the editorial position of Ohio's major newspapers, and since editors such as The Columbus Dispatch's Joe Hallett cannot allow facts to interfere with their own biases, it is left to Buckeye Firearms' volunteers to refute the idiocy.

Yesterday we received several frantic phone calls asking for articles, links etc. backing up our claims that most states allow carry of firearms into restaurants that serve alcohol. These calls, of course, came after hours, so that we got to spend time away from our families to address the calls.

During the debate over the House and Senate versions of these bills, those opposed to the bills (i.e. the Fraternal Order of Police, the Ohio Association of Chiefs of Police, the Toledo Blade, the Cleveland Plain Dealer, The Columbus Dispatch etc. etc.) tried to paint gun owners as liars for claiming that 42 states allowed carry of firearms in restaurants that served alcohol.

Please note that I do not include the Ohio Restaurant Association among those opposed to the bills. They were thrown out as a red herring earlier in the debate, and were all but ignored from Day One by Buckeye Firearms Association. A group like the ORA, that makes no donations, puts up no yard signs and makes no phone calls is not a legitimate source of opposition to your rights.

Unfortunately, those testifying, and those editorializing in opposition to these bills fell into the trap that most anti-gun groups set – their statistics are hyper-technical and don't withstand any serious scrutiny. Those who rely on statistics from groups like Brady, Violence Policy Center or Legal Community Against Violence are often ashamed when they are called out on their sources.

Numerous newspaper reports and editorials fell into this trap, disputing the pro-gun group claims that 42 states allowed carry of firearms in restaurants.

Please allow me to walk you through the genesis of this trap. It is really quite simple. The antis use the word "bar" and we use the word "restaurant."

Circa 2009, the State of New York attempted to make the possession of a firearm while under the influence of alcohol a crime. Unfortunately, the study the New York General Assembly commissioned concluded that only 18 states had a law on the books making possession of a firearm while intoxicated a crime. The legislative service preparing this report attempted to cover this embarrassment by pointing back to a Tennessee attorney's website that documented how almost no state allowed carry in a bar. This attorney, of course, was on the front line of opposing Tennessee's battle against their own restaurant carry bill. He lost.

This attorney, clearly an ambulance-chasing personal injury attorney, played fast and loose with the facts and the "lingo" used in the debate. (i.e. they say "bar," we say "restaurant.") Unfortunately, the clear intent of this attorney's website is to imply that few, if any, states allow carry in a restaurant. However, by focusing on the semantic differences, "bar" versus "restaurant," rational people can easily set aside the claims on this website. This was clearly born out by Tennessee subsequently overriding his court objections with a new law, allowing restaurant carry.

Let's examine his clear, unambiguous claim that "...carrying loaded guns is expressly prohibited by law in bars, nightclubs or bar areas serving alcohol in 24 states." Case closed, clearly Ohio gun owners are lying when they claim that 42 of the 50 states allow carry in restaurants that serve alcohol.

An excellent illustration of this is his anti-gun claim is that Alaska does not allow bar carry, and citing to Alaska Statute 11.61.220 in support of this fact. To add extra credibility to his sleight of hand, the attorney even cites to the Alaska administrative code section that defines restaurants. The attorney's specific claim is that "...carrying loaded guns is expressly prohibited by law in bars, nightclubs or bar areas serving alcohol...."

Wow, case closed, right? Nope. Here is the applicable Alaska code section that specifically allows restaurant carry:

(d) In a prosecution under (a)(2) of this section, it is
(1) an affirmative defense that
(A) [Repealed, Sec. 7 ch 62 SLA 2003].
(B) the loaded firearm was a concealed handgun as defined in AS 18.65.790; and
(C) the possession occurred at a place designated as a restaurant for the purposes of AS 04.16.049 and the defendant did not consume intoxicating liquor at the place;

Huh? What? Weren't we just told specifically by this attorney's website that restaurant carry was prohibited in Alaska? To add a cherry on top, his cite to the definition of restaurant, AK Sec. 04.11.100, does not even correspond with the definition in the relevant statute, i.e. A.S. 04-16-049. This section, unfortunately for the anti-gun attorney, talks about those under 21 years of age getting into bars. No mention is made of those with guns.

Whoops.

Well, I've made lots of mistakes in my legal career, so I decided to move on to his next example, Arizona. Except that he admits within the fine print of his article that Arizona has already changed their law and allows bar carry, but he is including Arizona in his count anyway.

Next:

Arkansas clearly prohibits bar carry, right? Our stalwart anti-gun attorney cites to Arkansas Statute 5-73-306, which clearly prohibits drinking in restaurants. Only it doesn't. Once again, we see that carry in restaurants is fine, so long as the establishments gets 60% of receipts from food:

(8)"Restaurant" means any public or private place, without sleeping accommodations and that place:
(A) Is kept, used, maintained, advertised, and held out to the public or to a private or restricted membership as a place whose primary function and purpose is to take orders for and to serve food and food items;
(B) Actually serves full and complete meals prepared in a fully equipped and sanitary kitchen and prepared from uncooked foods for service to and for consumption by its guests or members on the premises;
(C) Has a seating capacity of at least fifty (50) people;
(D) Has employed a sufficient number and kind of employees to prepare, cook, and serve suitable foods to its guests or members;
(E) On Sundays, serves alcoholic beverages on-premises only, in conjunction with meals;
(F) Serves food on all days of operations;
(G) Maintains separate sales figures for alcoholic beverages; and
(H) Has gross sales of sixty percent (60%) or more from the sale of food, food items, and nonalcoholic beverages or in the case of excursion boats, has gross sales of sixty percent (60%) of their gross income from boat rental fees and sales of food and nonalcoholic beverages;

Man, we aren't even past the first letter of the alphabet. Luckily the anti-gun attorney's next example is Florida, so we have avoided several letters of the alphabet that might be contrary to his position. Unfortunately for him, fortunately for us, Florida does allow carry in restaurants:

Florida Statute 790.06(12):

...any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose...(anecdote: Florida forums have equated this with a 51% sales from alcohol rule.)

Wow, bad luck for our anti-gun attorney. Surely his luck, and those of editorial boards in Ohio, must change.

Moving on in his alphabet...... Georgia. Darn his luck, turns out his citation says that bars are defined as places (16-11-127(a)(1)) where the service of food is only incidental to the consumption of booze, and even then carrying of firearms is only prohibited if the bar owner has not chosen to allow it (16-11-127(b)(6)).

Yes, that is right, you can carry even in a bar, so long as the bar owner allows it in Georgia. Not to mention that all restaurants are clearly O.K. for carry of firearms under Georgia law.

Ladies and gentlemen, I am fond of starting any given answer with "I am not a very good attorney," but even my luck is not this bad. I missed my son's soccer game to knock out letters A-G of this anti-gun hack's alphabet. Indeed, even looking at this attorney's website, he admits that only eight states prohibit carry in bars AND restaurants. This is easily determined by taking the time to look critically at this single-source and determine what is really being said. I took unpaid time away from work and family to do so.

Surely Ohio's editorial boards, who are being paid to be "objective" journalists, could do the same.

Ken Hanson is a gun rights attorney in Ohio. He serves as the Legislative Chair for Buckeye Firearms Association, and is the attorney of record for Buckeye Firearms Foundation, which filed friend-of-the-court briefs in the Heller and McDonald Supreme Court cases. The National Rifle Association's Institute for Legislative Action (NRA-ILA) has awarded him with its 2008 Defender of Justice Award and 2009 Jay M. Littlefield Volunteer of the Year Award. He is the author of The Ohio Guide to Firearm Laws, a certified firearms instructor and holds a Type 01 Federal Firearms License.

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