Property rights vs self-defense rights

The Bitter Bitch questions whether requiring businesses to allow firearms owners who are also employees to lock guns in their cars without risk of being fired is a good thing. The question is, of course, prompted by recent legislation in Oklahoma allowing that very thing. She's got a point, one which I approached slightly in my commentary on Feliciano v 7-11. I think there's a good point of differentiation, though.

There's a good bit of case law establishing the principle that an automobile is a traveling property zone of its owner, not the entity who owns the roads and parking lots on which the vehicle rests. The owner of a road may prohibit a vehicle from driving on the road, and the owner of a parking lot may insist that the vehicle be removed, but neither is justified in arbitrarily searching the vehicle or removing what it contains, insofar as the cargo is lawful.

Firearms carried properly in a vehicle are, of course, lawful. That means that their mere presence does not justify the road or parking lot owner violating the property rights of the vehicle owner. In effect, the firearm is not in the parking lot or roadway; it is in the vehicle.

As such, the employer has no more right to object to the firearm than he would if it was possessed in the employee's own home. But as soon as the employee steps out into the parking lot, he's on the employer's property and subject to the requirements of the property owner with regard to firearms -- including a requirement that they not be possessed on the property.

Making that distinction frames the question more clearly. Should an employer be able to require his or her employees to forswear any and all possession and ownership of firearms on pain of termination?

This is a case where two Constitutionally-protected rights (the right to keep and bear arms, and the right to freedom of association) come into conflict. The question is complicated by the lack of a government actor; private entities traditionally are not bound by the restrictions placed upon government, at least as most First-Amendment law has held. As if that was not enough confusion, the First Amendment states "Congress shall pass no law..." (implying a restriction only upon government) versus the Second Amendment's blunter "... shall not be infringed."

What requirements can a private employer place upon their employees regarding their legal off-work behavior and possessions? How do those requirements differ for employers that are not entirely private -- eg, publically-traded or limited-liability corporations?

I'm no expert, so I'm going to present the question to people who are:

Clayton Cramer: Historically, are there examples of employers regulating firearms ownership and possession by employees? (Answered, sort of)
Professor Bainbridge: What are the differences between the various types of employers (eg, private, small business, large business, limited-liability corporation, publically-traded corporation, government contractor or employer) with regard to the restrictions they can impose on Constitutionally-protected activities as a condition of employment? (Answered, sort of; I will additionally note that the Feliciano v 7-11 decision involved an unarmed employee resisting a robbery, not one armed with a firearm)
Eugene Volokh: To what extent are employers able to restrict their employee's speech as a condition of employment? To what extent is the ability to legally limit speech as a condition of employment dependent upon the narrow "Congress shall make no law..." phrasing within the First Amendment, as contrasted with "... shall not be infringed"?

UPDATE: Bainbridge notes a government study suggesting that employee resistance is "strongly associated" with risk of injury. I'd say this is a classic case where the direction of causality is not readily determined from a statistical study. An employee who is harmed will naturally resist if at all possible, whether or not they were inclined to do so before being harmed. The exception is an attacker armed with overwhelming force (eg, a firearm), and another of the heightened-risk-of-injury factors is "robberies without firearms".

Off-the-cuff, I'd expect the "resist-if-harmed" effect to have a significant influence on the results of the study, especially in light of other studies suggesting that resistance with a firearm is the safest course of action. In addition, the factors correlating with high risk of injury are also highly intercorrelated (meaning, they tend to occur in clusters, with multiple risk factors often present). This makes it difficult to separate out causal relationships between the various factors.

Finally, Bainbridge's study appears in the American Journal of Industrial Medicine, and was conducted by the National Institute for Occupational Safety and Health. The anti-gun bias of the medical community, exceptions notwithstanding, is well known, and I am inclined to take a close look at studies originating from a medical source on the topic of crime generally and firearms or resistance to criminal behavior especially.

I'll respond further in a separate post.

UPDATE: Slithery D, Nyartholep and Xlrq weigh in.

Posted on 2005-06-12 19:04:15.0 by matthew@triggerfinger.org

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Carnival of the Capitalists at Blog Business World

by Blog Business World

It's Carnival time again! Grab your popcorn and cotton candy and sit back and enjoy Carnival of the Capitalists: The Greatest Business Show in the Blogosphere. That was a little long for a tag line. I'll have to work on improving that one.

ET TU, STEPHEN?

by Stop the Bleating!

Professor Bainbridge expresses the same concern about the West Virginia Supreme Court's decision in Feliciano v. 7-Eleven that I mentioned when I blogged it, but in far greater detail.

No comments have been posted so far.