On a day that students walked out across the country to demonstrate against the legal use of high-powered automatic rifles like the one used to kill 17 students and teachers at a Parkland, Florida, high school, the Georgia Court of Appeals took a stand against carrying guns.

The timing appeared to be coincidental. Still, the court turned down a gun rights group's challenge to the Atlanta Botanical Garden's no weapons policy.

Even in agreeing with a panel of three colleagues ruling against GeorgiaCarry.org in seeking to pack pistols into the garden, Chief Judge Stephen Dillard paid homage to the Second Amendment and called the losing argument “attractive.”

“The right of Americans to 'keep and bear arms' has 'justly been considered,
as the palladium of the liberties of a republic,'” Dillard wrote in the opening of his special and full concurrence. “And the private property rights we enjoy as free citizens are 'among the most basic of human rights.'”

Thus Dillard set up the heart of the dispute as the lawyers framed it: the right to bear arms v. the right to control private property. “The General Assembly sought to balance these sacrosanct rights in OCGA § 16-11-127 (c),” Dillard said.

The law at the center of the decision permits those authorized to carry a weapon to do so “in every location in this state” not otherwise excluded by law—with an important “provided, however.” The exception is for private property owners or those in legal control of property through a lease.

GeorgiaCarry.org based its challenge on the fact that the city of Atlanta owns the land where the Atlanta Botanical Garden sits in Piedmont Park. But the court determined that the garden's 50-year lease puts the private nonprofit organization in legal control of the property.

GeorgiaCarry.org was represented by Roswell attorney John Monroe, who said Thursday he will appeal.

“We respect the hard work the court did on the case, but we are nonetheless disappointed in the result,” Monroe said by email. “After careful consideration, we have decided to petition the Supreme Court of Georgia for certiorari.”

The garden was represented by Michael Brown, who was with Alston & Bird as he argued the case but is now a newly-confirmed judge on the U.S. District Court for the Northern District of Georgia. Brown could not be reached immediately.

“So, under the plain meaning of the statute's text, the Garden appears, at first blush, to be prohibited from excluding authorized individuals carrying weapons on its premises because it does not own and is not in legal control of private property,” Dillard said. “But having carefully considered the longstanding Supreme Court of Georgia precedent relied upon by the majority, I am persuaded that the reasoning contained in those decisions applies with equal force in this statutory context, and, therefore, the trial court's judgment should be affirmed.”

The panel affirmed Fulton County Superior Court Judge Gail Tusan's grant of summary judgment in favor of the garden on GeorgiaCarry.org's petition for declaratory and injunctive relief.

Writing for the majority, Judge Brian Rickman said, “The plain and unambiguous language of OCGA § 16-11-127 (c) grants persons in legal control of private property through a lease the right to exclude individuals carrying weapons, and well established authority from the Supreme Court of Georgia designates the land leased by the Garden as private property.”

Rickman relied heavily on a 1963 Supreme Court decision in Delta Air Lines Inc. v. Coleman, 219 Ga. 12 (131 SE2d 768). “Delta argued that it was exempt from paying ad valorem tax on the land because the land was public property,” Rickman said. “The Court disagreed, holding that, “[w]hen any estate in public property is disposed of, it loses its identity of being public property and is subject to taxes while in private ownership just as any other privately owned property.”

Dillard underscored the point in his concurrence, joined by the other member of the panel, Presiding Judge John Ellington. As Dillard put it, “Indeed, it would be a
curious thing to deny an entity leasing public property the benefit of the City's tax
exempt status while simultaneously requiring that lessee to permit gun owners on its property without consent.”

The case is GeorgiaCarry.org v. Atlanta Botanical Garden Inc., No. A17A1639.