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
I'll respond further in a separate post.
UPDATE: Slithery D