In the litigation, the botanical garden has argued that because it is a private entity, its lease with the city makes its grounds private property. Although a Fulton judge and the state Court of Appeals agreed with that reasoning in prior decisions, Bethel wrote that the state high court rejects those interpretations of the law.
Instead, there are two types of property rights at play here, Bethel said. One involves a lease that allows a tenant such as the botanical garden to simply possess and enjoy the use of the property. If that’s the case, it cannot prohibit visitors from carrying handguns on the grounds.
On the other hand, if the lease treats the botanical garden as the owner of the property in what’s legally called an “estate for years,” then the botanical garden can restrict the carrying of handguns on its premises, Bethel said.
A Fulton judge must now make such a determination, the court said.
In a concurring opinion, Justice Nels Peterson said the 2014 amendment may be in peril no matter how the botanical garden case plays out. When lawmakers passed the law, it retroactively destroyed the rights of those who held leases to property and who could previously exclude people carrying firearms, the justice said.
Justice Nels Peterson asks question during recent arguments before the Georgia Supreme Court. (HYOSUB SHIN / HSHIN@AJC.COM)
“Our Constitution forbids statutes that apply retroactively so as to injuriously affect the vested rights of citizens,” Peterson wrote.
For this reason, Peterson said, “(T)he amendment likely was unconstitutional in almost all of its applications when it first became effective, and probably in some that still remain.”