Is it a legal fiction, though?
As I said before, in my mind the correct response depends on the outcome of the analysis: "is it, in fact, tortious to deny the ability to be armed in the event of an attack"? If yes, then it is immoral to deny victims restitution. If no, then it is indeed no business of the state.
I see lots of chest-thumping about what the "correct" "anti-statist" approach is, but I have yet to see any analysis of the only criterion by which that can be determined.
So, you say it's a "legal fiction". OK. I might agree.
Can you argue the case?
I recognize that I myself may seem recalcitrant to make this analysis, but that's only because I'm not yet convinced myself.
tort law is complicated beyond my pay grade, but I've always thought that you're generally not liable for the unforseen and unpreventable violent acts of people outside your control.....
in fact, I'm aware of no court ever ruling such a thing as "prohibiting lawful carry means you're liable for criminal attack on your patrons" I'm aware of no tradition in english common law, or hell even in the civil law systems of continental europe, that confers liablity for criminal acts of third parties not affiliated with you. even Hammurabis code didn't confer such a standard on someone.
to me it's simply silly. and it reeks of people who want to suppress the rights of anti gun business owners to sign their property by conferring a level of liability that's impossible to prevent. If I own a business and the roof collapses, i can be liable because I have a certain duty to ensure a safe environment, and having the building inspected is a reasonable step i can take. but with this idea people have, I would be liable for damages if someone... maybe a disgruntled guy I fired comes into the place shooting and the only way not to be liable is to set my policies to count on someone else who i have no control over having their own gun? it makes no sense to me.... for the record if I owned a business open to the public i would allow carry to the greatest extent possible under state law, but that's another story....
is it tortious to deny someone the ability to defend themselves?
I dunno, but I don't generally consider a private business for profit doing an entirely private function to be in a position to "deny you" anything because you can always choose not to spend your money there.
