Bearing Arms in the Workplace
In District of Columbia v. Heller, the U.S. Supreme Court was presented with the question of whether the Second Amendment to the U.S. Constitution protects only the right to possess and carry a firearm in connection with military service or protects an individual’s right to possess and carry a firearm for his/her own lawful purposes, such as self-defense. In a 5-4 decision with enormous implications for our society as well as the workplace, the Court ruled that the Second Amendment protects an individual’s right to bear arms, irrespective of the military. This long-awaited decision has received extensive media coverage. (Click here, here, and here.) I’ll give my take on what this means for employers and the workplace a little later in this necessarily longer-than-usual post.
In issuing its decision, the Court interpreted a District of Columbia law that prohibited a person from carrying a handgun without a license and required DC residents to keep their lawfully owned firearms “unloaded and dissembled or bound by a trigger lock or similar device” unless they were located in a place of business or were being used for lawful recreational activities. It was one of the most restrictive gun laws in the country, enacted to combat a rising rate of violent crime in the DC area.
The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The question decided by the Court in the Heller case has been debated during the 200 years since the Second Amendment was approved. Arguably, the question was decided in precisely the opposite way of the Court’s Heller decision when the Court decided United States v. Miller in 1939. Whether it was or not, it has now been decided in a way that gives supremacy to individual rights when it comes to gun ownership.
Though certainly not a constitutional scholar, I’ve always found the Second Amendment to be confusing. It clearly speaks of the militia, in today’s parlance the military, and then with no segue moves to the right of the people to bear arms. Justice Scalia, who wrote the majority opinion in Heller, found no confusion in the Second Amendment’s language. Although Justice Scalia admitted that the language of the Second Amendment is unique when compared with the language of other amendments, he and his four concurring colleagues in the majority divined the founders’ “original understanding of the Second Amendment: it was clearly an individual right, having nothing whatever to do with the service in a militia.”
In reaching this conclusion, Justice Scalia said that in interpreting the Second Amendment, the Court was guided by this principle: “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” In the next sentence (and I’m not making this up), Justice Scalia illuminated this guiding principle of constitutional interpretation by writing: ”Normal meaning may of course include an idiomatic meaning.” Let’s stop for a moment. How many voters (I suppose voter is a “common man or woman”) use the term “idiomatic”? How many know what “idiomatic” means? In explaining why the Second Amendment is so clear that it can’t possibly be subject to more than one interpretation, Justice Scalia (in a 64 page opinion) used language most voters would have to look up in the dictionary. Regardless of whether the majority of the Court got it right, Justice Scalia’s language demonstrates a striking disconnect between Supreme Court justices and “voters.”
The only way the majority of the Court could reach its decision in Heller was to ignore or offer a strained interpretation of the founders’ opening phrase of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State.” Despite this opening phrase, the Court determined that the right to bear arms is an individual right, having nothing to do with the military. The Court’s majority didn’t, of course, ignore the opening phrase. Indeed, it strained mightily and used the machinations of the most expert magician to reach its result. As to the 1939 case of United States v. Miller, it didn’t address the meaning of the Second Amendment, said the Court’s majority, which would undoubtedly come as a surprise to the justices on the Court in 1939, but they’re dead.
The four dissenting justices issued two opinions of their own. The opinion written by Justice Stevens (46 pages in length) focused on the meaning of the Second Amendment. The opinion written by Justice Breyer (44 pages in length) focused on the Second Amendment’s application to the DC law. If a 5-4 decision with three opinions totaling 154 pages indicates anything, it’s that the Second Amendment’s meaning is far from clear.
Justice Stevens seemed to write about anything he could think of, including the vision of James Madison (who probably had more to do with writing the Second Amendment than any of the founders), the views of the Quakers in the early days of our republic, and the violence of the Ku Klux Klan in our country’s history of gun use. Predictably, he wrote extensively about United States v. Miller, since he thought that case had already settled the meaning of the Second Amendment. As one of the justices on the losing side of Heller, he concluded: “Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding.” The Court’s majority didn’t believe that it announced a new constitutional right at all, of course. It merely recognized a right that has existed since the Second Amendment came into existence.
Justice Breyer, in his dissenting opinion, asserted that the Second Amendment “protects militia-related, not self-defense related, interests.” Concentrating on that principle, Justice Breyer wrote somewhat unrealistically that governments can regulate the private use of firearms however governments please. Thus, the DC law was fine, particularly given its intent to deal with handguns in a high-crime urban area. Justice Scalia’s majority opinion expressed amazement that any government would attempt to control an individual’s right to use a handgun, since handguns have always been an individual’s weapon of choice when it comes to self-defense. Justice Breyer responded that every government should be able to regulate handguns, since handguns are primary weapon of choice of criminals.
Two things are clear. First, no one knows what the founders intended when they authored the Second Amendment. This amendment to our Constitution is particularly inscrutable. Every year, legislators write laws that, only a few months later, are confusing to the public and even to the writers of the law. It shouldn’t be surprising, therefore, that something written 200 years ago is difficult to understand. The founders were wise but not infallible. Next, we now know, more or less, what the Second Amendment means for us. That’s been settled by the Supreme Court in Heller. Even though the Second Amendment speaks in terms of the militia and bearing arms, it has nothing to do with the militia–the military. It only applies to an individual’s right to bear arms.
What does Heller have to do with employers–the workplace? Can you continue to ban guns and other weapons from your workplace? Can you ban guns from any part of workplace property like parking lots? Can an individual employee bring a gun to work, carry it around with him/her all day, and clean it on break? The Court didn’t answer these questions or address workplace concerns. It did, however, use language that could mean employer weapons policies are still valid.
After proclaiming that the Second Amendment’s purpose is to protect the individual’s right to bear arms, Justice Scalia in the Court’s majority opinion said this: ”Of course the right was not unlimited, just as the First Amendment’s right of free speech was not . . . . Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” No surprise there. But then the Court, presumably in an effort to provide clarity, did just the opposite.
“[Nineteenth century cases, commentators and courts] routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . For example, the majority of the 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”
Then the Court became even more confusing, perhaps bizarre: ”Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” While we can be grateful that the Court spared us an exhaustive historical analysis of the full scope of the Second Amendment, the Court was far from done with its commentary that’s useful to employers.
“[Another limitation we recognize is] that the sorts of weapons protected [by the Second Amendment] were those ‘in common use at the time’ [when the Second Amendment was approved, so that] ‘dangerous and unusual weapons’ [aren't protected]. . . . [W]eapons that are most useful in military service–M-16 rifles and the like–may be banned [presumably without violating the Second Amendment].”
Justice Scalia’s majority opinion went on to acknowledge that because handgun violence is a problem in our country, the Second Amendment leaves the government “a variety of tools for combating that problem, including some measures regulating handguns.” However, the majority opinion made it clear that a government regulation denying a “law-abiding, responsible citizen” the right to keep and use weapons in the home for self-defense is “off the table.” The DC handgun regulation had obviously gone too far, but somewhere out there is presumably a measure that doesn’t go too far.
Justice Stevens was grim in his assessment of the future in light of the majority’s ruling. “Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that [the DC handgun law] may well be just the first of an unknown number of dominoes to be knocked of the table.”
I’m not so grim in my outlook. The majority opinion clearly says that guns can be regulated. In fact, the majority of the Court seemed to find no problem with the DC law’s application to businesses, only to an individual’s home. The majority makes it clear that the Second Amendment, as now interpreted, isn’t absolute–that exceptions are in order as is the case with the First Amendment. The Court seems to say that regulating concealed weapons is appropriate. Certain classes of individuals can be prohibited from carrying any kind of weapon. Individuals can be barred from carrying weapons in certain types of places, buildings, and businesses. Dangerous and unusual weapons can be regulated. All of this sounds to me like the employer policies banning guns from the workplace are ok.
Big caveat. As I’ve previously noted, state legislatures are considering and passing laws that restrict an employer’s right to control weapons in the workplace and on workplace property. It’s likely that the Heller decision will encourage the introduction of more legislation like this. Hopefully, however, as the meaning of Heller sinks in, state legislatures will recognize that the Supreme Court has said that the Second Amendment allows the regulation of guns, particularly outside the home. Hopefully, instead of passing more laws that restrict employers’ rights to control weapons at work, state legislatures will enact legislation giving employers the right to keep guns off the premises if that’s what employers want to do. Under the Court’s ruling in Heller, an employer’s decision to ban guns doesn’t conflict with the Second Amendment.
If you’re an employer in a state that already has a law purporting to impair your right to control weapons at work, you should check with your lawyer about the impact of Heller on that law. It seems to me that the meaning of any of these previously passed state laws are now straight up in the air until the highest courts in the affected states consider the meaning of these laws in light of Heller. Indeed, it’s likely that some of these laws will end up in the U.S. Supreme Court for additional clarification of Heller. If your state doesn’t have such a law or has a law giving you the right as an employer to ban weapons from your workplace, it’s my opinion that you can keep the policy you have or implement one if you haven’t done so yet. In light of last week’s workplace killing of six employees in Kentucky with one handgun, I hope I’m right.
Some will say that the group rejoicing most over the Supreme Court’s recent Second Amendment decision is the so-called gun rights group. They’re wrong. The group rejoicing most is the legal profession. Lawyers have been given a new line of work that will run for decades, maybe another 200 years. I’ve always had the highest respect for the U.S. Supreme Court.
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Monday, June 30th, 2008 at 3:08 am under
I I have yet to see any legislation that said that employers had to allow employee’s guns in the workplace. The laws address the issue of the employer inability to regulate or prohibit what is in the private property (car) of the employee. In other words an employee or customers car is private property and like any police there is no authority to search without a warrant.
June 30th, 2008 at 3:47 pmAn employer cannot prohibit if I carried a bible in my car. Therefore they can not prohibit if I have gun stored in my car for self defense when I leave work or going to a range for shooting after work.
First things first: Please don’t randomly comment on my blog. Though we disagree I do not randomly post links to my blog in your comments. I post comments to your blog on-topic, and without gratuitous links.
Assuring a right to arm the military is just plain stupid. Can you find anywhere else in the constitution where a reference to “the people” means something other than the individual rights of citizens?
Simply put, you are still operating under the belief that gun control somehow impacts criminals and crazies rather than impacting the good citizens that try to comply with the law.
The “militia” in any parlance has never meant the military, and the term predates the national guard. The militia has always been the able bodied citizenry taking up arms.
We all read the decision, and various forms of gun control will be tested in the courts in short order.
The part that you never seem to get is that employers have *never* been able to control weapons in the workplace. You can write company policy, and I can put a pistol in my briefcase. If I believe there is a credible threat to my safety, I am going to ignore your policy and risk getting fired. The disgruntled employee that decides to shoot up the office is unimpressed with the corporate edict. Perhaps he will be more impressed with someone returning fire.
You certainly wouldn’t quibble with a police officer carrying a firearm into your office. What makes that so different? Training? Authority? Why do you have more reason to trust a police officer than you do an employee that you know to be honest and hard working?
June 30th, 2008 at 4:29 pmThe only way the majority of the Court could reach its decision in Heller was to ignore or offer a strained interpretation of the founders’ opening phrase of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State.” Despite this opening phrase, the Court determined that the right to bear arms is an individual right, having nothing to do with the military.
How much “straining” do you have to do to understand plain English, sir? I direct your attention to this article, where the construction of that sentence is dissected and explained:
http://www.firearmsandliberty.com/unabridged.2nd.html
From this it is obvious that a “strained interpretation” is what is offered by those who claim the 2nd Amendment “grants” a “collective right”. Furthermore, Rights are inherently individual. No group has a Right that its individual members do not separately possess.
As your article is about the legal aspects of bearing arms in the workplace, it is incomplete without a discussion of the liability that an employer assumes when they interfere with the ability of their employees to act in their own self defense by bearing arms. Are you going to cover that aspect of this topic? Or do you believe that an employer has no liability when they create an environment full of helpless victims?
Do you know whether or not the Kentucky firm had such a firearms policy in place already? If so, what is your response to the obvious failure of that policy to prevent a multiple murder using a firearm? How would such an employment policy at any other company stop someone who is bent on murder?
June 30th, 2008 at 5:46 pm[...] doesn’t appear, first appearances aside, to interfere with an employer’s right to prohibit guns in the workplace or the right to regulate unusual or dangerous weapons. Which is a damned shame really because there [...]
June 30th, 2008 at 8:27 pmRAH,
Thanks for your comments. With the exception of Alaska, I know of no laws that permit employees to bring guns to work. Alaska is probably not clear, but there’s an argument that employees have the right to bring guns into the workplace.
The other state laws of which I’m aware fall into two categories: (1) laws that permit employers to ban weapons from the workplace and (2) laws that restrict employers from banning weapons in employee vehicles parked in the parking lots of employers.
As I read Heller, the Supreme Court says nothing about a person’s having an individual right to carry a gun in his/her car. That will be an argument for another day. The only thing Heller does is permit an individual to have a gun in his/her home for purposes of self-defense. Even then, not everyone has that right, e.g., felons and the mentally ill. Heller also doesn’t give an individual the right to possess
“dangerous and unusual weapons” even in his/her home.
Finally, an employer could prevent you from keeping a bible in your car if you were using it to hold religious services out in the company’s parking lot. It will be interesting to see what the Supreme Court eventually says about guns in cars, the privacy of cars, etc., but so far, it has said nothing.
Thanks again for weighing in.
July 1st, 2008 at 11:49 amMostly Genius,
I’m always glad when you weigh in on this issue, because I know you feel strongly about it, and I value your opinion.
As to first things first, I’m sorry for the breach of blogging protocol. My fault.
As I noted in my post, I’m not a constitutinal scholar. Neither am I a scholar of military history. Thus, what I say may be wrong or questionable when it comes to the intracacies of the constitution and the military. I’m mainly concerned about the impact of this issue on the workplace and employment law.
When the constitution was written during the formative years of our republic, I would think that assuring the right to arm the military wouldn’t have been stupid at all. It would have been imperative. At that point in our history, we were trying to figure a lot of things out in terms of our government and the people’s rights. Since the constitution’s preamble begins with “We the people,” it seems to me that “the people” applies to everything in the constitution. Many of the consitution’s articles as well as its amendments guarantee rights to both the federal and state governments. The people have rights as individuals and as citizens of the governments. Even the rights considered to be most individual in nature (as in speech, religion, assembly and press under the First Amendment) are practiced individually and collectively. Ideally, all constitutional rights belong to the people, but there is nothing I can find in the constitution that says with the kind of certainty you assert that whenver “the people” is used, it means individual rights and only individual rights.
Gun control impacts everyone. That would include law-abiding citizens and criminals.
It’s incomprehensible to me that when the constitution and its amendments were written that militia and military weren’t used interchangeably. References to those who served in the organized army and navy during the Revolutionary War were often called militiamen. Today, the two terms are used to have different meanings. I don’t know for sure what the founders menat when they said anything, just as no one knows what they meant, but I don’t think I’m too far out on a limb to believe that when Madison used militia, he wasn’t splitting hairs between what we call the militia and the military today. I just don’t think he was that prescient.
I don’t think that various questions unanswered by Heller will be resolved in short order, unless by short order you mean decades. Rightly or wrongly, our system doesn’t work that way. It’s fine to blame the lawyers for that, but it’s a fact.
You are correct that there’s a limit on what employers can do to control weapons and violence in the workplace. Because the workplace belongs to the employer, however, the employer should have the right to determine how the attempt will be made to control weapons and violence in the workplace. Believe it or not, workplace policies do work sometimes. I know full well that an employee can bring a gun to work, regardless of what a policy says, and kill a few people. With all due respect, the percentages are pretty low that you, as a law-abiding citizen, would prevent that from happening just because you happen to have a gun in your briefcase.
As to police officers, they carry guns because they’re authorized to do so. It’s part of their job description. Although cops aren’t perfect, I place a lot of trust in them everyday to keep me safe. When it comes to the average workplace, police officers have almost nothing to do with preventing violence. That’s between an employer and its employees. As I said earlier, it’s the employer’s workplace, and the employer should have the right to set the rules of who brings what to work.
Thanks again for weighing in. You always make me think.
July 1st, 2008 at 12:55 pmJohn H,
Thanks very much for your point of view. You obviously feel strongly about what you’ve said, and I respect that.
Being a lawyer, I make my living disagreeing with other people about what “plain English” supposedly says or means. When it comes to arguing about something written 200 years ago, I’m just not smart enough to figure out what it means in “plain English.”
Thanks for sending me the article. It was interesting, but as you know, there are articles explaining what all kinds of things mean. There are, of course, articles that disagree with the interpretation of the article you included in your comment.
In your comment, you say: “No group has a Right that its individual members do not separately possess.” Not according to the Heller opinion. Justice Scalia says in the majority opinion that an individual wouldn’t have the right to possess “dangerous and unusual” weapons which the military possesses, like M-16’s. Heller says an individual can keep a handgun at home for purposes of self-defense, and that’s all Heller says.
An employer adopts weapons policies in an attempt to prevent its employees from being helpless victims. Sometimes they work. Sometimes they don’t. But it’s the employer who should set the rules for its workplace.
The question on employer liability when a workplace shooting occurs is very much up in the air. In my opinion, an employer lessens its liability by having a policy banning guns from the workplace. As a practical matter, when there’s a shooting at work, no matter what the policy says or doesn’t say and no matter how many law-abiding citizens come to work armed or unarmed, the employer will be sued for multiple millions of dollars. Most of these cases tend to be settled, so courts don’t get to decide the liability issue that often.
I don’t know whether the Kentucky company had a policy on guns in the workplace, but it wouldn’t have mattered. Under Kentucky law, an individual has the right to keep a lawfully registered gun in his/her vehicle. It appears that the Kentucky shooter left his employer’s facility, retrieved his gun from his vehicle, came back to the workplace and killed five people, then himself.
Thanks again for your thoughts.
July 1st, 2008 at 1:17 pmGeekLawyer,
Thanks for injecting some humor, albeit dark, into this discussion. If you ever need a place to hang out in the states and discuss this issue at length, let me know. I’ll find someone for you. Just kidding.
I can’t think of anything more meaningful than a discussion about the Second Amendment between an employment law and an IP lawyer.
July 1st, 2008 at 1:27 pmWhy would the government need a constitutional authority to secure the rights of the military to be armed? Under what circumstance would the government confiscate the arms of federal troops? The 2nd Amendment is to make sure the government can’t disarm the military? You cannot be serious.
By your argument then the 4th Amendment (”The right of the people to be secure in their persons, houses, papers, and effects…”) means that society in general should be secure, and there is no 4th Amendment protection for the individual? Clearly SCOTUS believes differently.
By procuring my firearms from illegal sources I bypass all legal controls. All of the paperwork schemes that law abiding citizens have to navigate simply disappear. The point is the people who are “controlled” by this extra regulation are not the source of the problem. The people who are the problem simply opt-out of the system and get their guns through other channels. Thus we continue to see multiple felons with multiple charges of firearms possession and battered women clutching restraining orders while going through their background checks and mandatory waiting periods.
The militia is ABSOLUTELY NOT a standing army of federal troops, and the terms are not, and have never been interchangeable. Please reread your Federalist Papers. The dictionary definition:
“a military force that is raised from the civil population to supplement a regular army in an emergency.
• a military force that engages in rebel or terrorist activities, typically in opposition to a regular army.
• all able-bodied civilians eligible by law for military service.”
The framers fought long and hard to determine if the US would even have a standing army. They had just experienced the tyranny of a government that used it’s standing army against it’s people.
The legal challenges against other pieces of gun control have already begun. Some jurisdictions are simply rolling over without a challenge because there is no way to defend some of the existing laws in the face of Heller. I don’t know how long it will ultimately take, but the next decade will be full of changes.
The percentages might very well be pretty low, but some of that is because the populace of the workplace has been disarmed. According to the FBI crime statistics people who defend themselves with firearms (which may or may not include actually shooting) have drastically improved chances of not being victimized or injured. Saying that the number of people who defend themselves with firearms is pretty low is only accurate if you take it as a percentage of total victimizations. Armed people defend themselves much more successfully and frequently than unarmed defenders. There are relatively few people who are armed at the time they need to defend themselves, but that is more of an indictment of gun control than of guns.
My question is that when the disgruntled gunman is walking down the hall shooting the people who are hiding under their desks what are your options? Run, Fight, or Die. Because of a whimsical corporate policy that has no foundation in the realities of the situation one of those options has been greatly diminished.
Please consider:
http://en.wikipedia.org/wiki/George_Hennard
and contrast this with the New Life Church Shooting:
http://en.wikipedia.org/wiki/2007_Colorado_YWAM_and_New_Life_shootings
The police have the “authority” that is granted to them by the people. The police carry firearms for exactly the same reasons that private citizens do, and use them under the same circumstances: self-defense, or the defense of a third party. The police do not “shoot criminals” in the normal course of police work. The police shoot criminals who are an immediate threat to the officer or third parties. The police deal with criminals on a daily basis, so it makes sense for them to take the precaution of being armed. You know who else deals with criminals? The victims.
I am not disputing the right of an employer to set the rules in the workplace. The employer is well within his rights to create dangerous, stupid, and capricious rules. Good citizens (and employees) are never going to be the problem. While I am sure that no employer wants a dangerous work environment, and certainly no employer wants to have a workplace shooting an employment policy of disarmament does nothing to secure a safe work environment beyond providing some legal protection for the employer should an incident occur.
July 1st, 2008 at 5:39 pmMr. Phillips:
Please forgive me if I was a little … energetic … in my initial comment.
There are, of course, articles that disagree with the interpretation of the article you included in your comment.
How many of those articles were written in consultation with someone who is “on the usage panel of the American Heritage Dictionary,” and who is “a retired professor of journalism at the University of Southern California and the author of ‘American Usage and Style: The Consensus.’”? Not all opinions are of equal value. This one is more valuable than most, when it comes to the structure of a sentence in English.
To me, though, it is quite clear even without that explanation. The sentence has two clauses, a primary clause and a dependent clause. It is simple English sentence structure that if a dependent clause is removed from a sentence, a properly-formed and complete sentence remains. Which of these is a properly formed and complete sentence?
(1) A well regulated Militia, being necessary to the security of a free State.
(2) The right of the people to keep and bear Arms, shall not be infringed.
Your response to my “no group has a Right…” comment seems, to me, a non-sequitur. How does what you said defend the idea that groups may have Rights that their individual members do not? Please try to to use something outside the context of the 2nd Amendment.
Further, while I have not read the dissenting opinions myself yet, I have heard that in fact all of the justices agreed - 9-0 - that the Right protected by the 2nd Amendment is an individual Right; the dissenting justices disagreed on other matters.
I suggest you re-read the majority opinion. “Heller says an individual can keep a handgun at home for purposes of self-defense, and that’s all Heller says” is incorrect. The majority opinion actually says:
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Nothing there restricts the Right to only self defense at home, or puts self-defense at the place of work off limits.
An employer adopts weapons policies in an attempt to prevent its employees from being helpless victims.
It is truly sad that such policies have the opposite effect in practice.
Sometimes they work. Sometimes they don’t.
It is messily obvious when they don’t work. Helpless people die. Can you possibly offer any evidence that they do work? Has anyone who contemplated an act of mayhem at a workplace ever said it didn’t happen because of a no-firearms policy?
Note that pointing out that workplace shootings are rare does not support the contention that workplace no-firearms policies have any causal effect.
In my opinion, an employer lessens its liability by having a policy banning guns from the workplace.
Ah, the appearance of doing something is more important than actually reducing the body count. I see.
(Sorry. I seem to be getting energetic again…)
As a practical matter, when there’s a shooting at work, no matter what the policy says or doesn’t say and no matter how many law-abiding citizens come to work armed or unarmed, the employer will be sued for multiple millions of dollars.
If that is truly the case, then why not adopt the policy that will likely reduce the number of people who will be wounded or killed should such an event occur? That strikes me as the most practical solution - it will reduce the number of grieving relatives suing the company.
July 2nd, 2008 at 10:33 pmMostly Genius,
Thanks for weighing back in. Thanks also for your post on Brillianter.com.
When the Second Amendment was approved, the government was just getting organized, so it’s not surprising that it would make sure that the military had all it needed, including arms, particularly since, as you note in your comment, there was considerable debate as to whether we would even have a standing army.
The Fourth Amendment protects individuals and society, as SCOTUS has long recognized.
I don’t disagree with your lament about criminals obtaining firearms illegally. People also drive without licenses, hunt without licenses, practice law without licenses, practice medicine without licenses, do electrical and plumbing work without licenses, etc. That’s no reason not to have laws governing all of these things.
How anyone can deny that the meaning of militia was uncertain around the time of the Second Amendment’s approval is beyond me. If anything, the Federalist Papers support my view on this. The dictionary definition you give is modern, not 18th century.
You’re no doubt right about changes that will occur as a result of Heller. It’s just hard to know what they will be and how quickly they will occur.
As you correctly note, I have no idea how many armed law-abiding citizens successfully defend themselves or others. While I’m inclined to thing that not many do, I don’t know.
If a deranged employee is walking around the workplace randomly shooting co-workers, I don’t think having the entire workplace armed would be that helpful. It might very well result in more people being shot. Having armed, trained security persons, as a few employers have, would help a lot. Perhaps you feel comfortable working in a place where everyone is packing heat, but I don’t. And I don’t think most of our citizens/employees do. All Heller does is allow a person to have a handgun in his home for purposes of self-defense. That’s a long way from arming all employees in all workplaces. It may happen, but I won’t be around to see it.
Comparing the Hennard and New Life Church shootings is interesting, but I think we’d need to look at all shootings like this that have occurred in last 10-20 years, let’s say, to have enough information to draw valid conclusions. For example, I’d like to know how many armed law-abiding citizens have been killed while trying try prevent a Hennard situation.
Your view, if I’m interpreting what you say correctly, that citizens should have the right to carry guns in the same way that police officers carry them is novel. Maybe Heller will lead us there, but again, I won’t be around to see it.
I’m glad you agree that employers have the right to set their own rules. We disagree about how useful workplace weapons policies are. Sometimes they are. Sometimes not. In my opinion, they’re no more useful or non-useful than having an army of armed workers.
I don’t think you belive me when I say this, but I don’t have a dog in the Second Amendment hunt. If the Supreme Court says one of these days that the Second Amendment gives us the right to carry machine guns down the street, then so be it. I would still think that employers should have the right to keep the maching gun-bearing employee out of the workplace.
Thanks again for your heartfelt thoughts.
July 3rd, 2008 at 8:18 amJohn H,
Thanks for your additional comments. No worries about being energetic.
I don’t doubt that your expert on the structure of a sentence is a smart person. I have no doubt whatsover that there’s just as smart an expert on the other side of this issue. It reminds me of a lawsuit. One side gets the best expert he/she can find. The other side gets the best expert he/she can find. The experts go at it. Each side tries to discredit the other side’s expert. A jury ultimately decides who is more credible. The jury may or may not be right, but the dispute is resolved.
Your explanation of the meaning of the Second Amendment’s language is a tenable argument. After all, the majority of the Supreme Court in Heller adopted that argument. That resolves the dispute. It doesn’t mean that that’s what the founders meant by the language.
There are group, as well as individual, rights guaranteed by the First Amendment: speech, religion, assembly and press. To say these are only individual rights is counter to the way these rights work every day.
In my opinion, you’re wrong about what the dissent said in Heller. There is no 9-0 on anything in that case.
Heller involved a single individual in DC who wanted to have a handgun to keep in his home for self-defense. That’s what the case was about. The Court said he had the right to have a handgun in his home for self-defense. The Court does make the comment about self-defense for traditionally lawful purposes. I would argue that there is no traditionally lawful purpose in bringing a gun to work. In any event, the Court said nothing about what traditionally lawful purposes are–other than self-defense at home–so that decision is left for another day.
As to the efficacy of workplace weapons policies, why doesn’t the rare nature of workplace shootings support the proposition that these policies work? In fact, one could argue they work pretty well on that basis.
How many people say that they didn’t commit a murder because there was a law against it? I don’t know, but I believe that such laws prevent murders, just like workplace weapons policies prevent workplace violence. If that’ s not the case, then let’s abolish laws that deal with violent crimes at the same time we abolish workplace policies banning weapoins from work.
As to employer liability, there is an appearance aspect to a workplace violence policy, but as noted above, I believe these policies have the intended effect. Not always, but enough to keep them in place, while giving the employer some protection from liability.
You conclude your comments by asking why not adopt a policy that really works–that really prevents violence from happening in the workplace. What would that policy be? Giving everyone a gun when they enter the workplace? I don’t want to work in a place like that, and I don’t think most citizens/employees want to work in a place like that. I also know that having that kind of policy wouldn’t always prevent workplace violence just like current workplace policies don’t always prevent violence. I prefer the latter, and if that’s what an employer prefers for his/her/its workplace, then the employer should have the right to make that decision.
Thanks again for weighing in energetically.
July 3rd, 2008 at 8:58 amMr. Phillips:
What would that policy be? Giving everyone a gun when they enter the workplace?
Sigh.
It seems that those who advocate gun control always seem to degenerate into (intentionally?) mischaracterizing firearms rights advocates’ position as “forcing everyone to have a gun”. This is not the case. If you do not wish to carry a firearm, we have no desire to force you to do so. We simply do not agree that your decision to be defenseless should be forced upon us as well.
What would that policy be? I would love to see a common workplace firearms policy that states employees in possession of a valid state-issued concealed weapons license (which generally include criminal background checks and often include training requirements) would be allowed to carry concealed at work without risk of discipline or termination.
I don’t propose that such a policy would prevent acts of workplace violence. No responsible firearms rights advocate suggests that is the case. What we recognize, though, is that it would limit the scope of the carnage - which, in lieu of armed opposition, is decided solely by the spree shooter.
July 3rd, 2008 at 3:23 pmLet me amend that: I don’t propose a permissive workplace firearms policy would prevent all acts of workplace violence. But it would act as a deterrent: the possibility of an armed response would certainly deter some percent of those planning such an act.
July 3rd, 2008 at 4:57 pmMost proponents of gun control don’t realize that the gun advocates are the middle ground. The extremes are either mandatory disarmament or forcing people to be armed (conscription.) The middle ground is carry a gun if you want to.
I am amused that the police officers get a pass on carrying firearms because of their superior training and official status. Not arming the police would be crazy. However if I am a new hire to the IT department I need to be disarmed, despite having spent the last 10 years training private citizens, police, and the military to operate firearms. I can’t be trusted with a gun, but I can be trusted with all of the corporate data. I get the keys to the kingdom, but no sword?
My question is what is the liability of simply not having a “no weapons” policy? Not an endorsement, but simply taking no position. Has there ever been a case where a company was penalized for not having any policy on weapons at all? Does this prohibition actually protect the company from an actual legal threat or is it simply a protection against a hypothetical threat?
According the concealed carry laws in my state so long as I am not in a prohibited (by statute) location I am legally allowed to carry my firearm. My employer can fire me for a violation of policy, but I have not broken any laws.
July 5th, 2008 at 1:14 amJohn H,
Double sigh.
It seems to me that the effect of your policy proposal would be to cause a lot of people who would not otherwise carry a weapon to do so. I would like to be a fly on the wall when HR or whoever announces to groups of employees that the company’s new weapons policy allows anyone with a registered gun to bring it to work. I don’t know for sure what would happen, but it seems to me that a lot of non-gun owners would become gun owners so they would be in the hunt, so to speak, once the shooting started.
But let me be clear. If an employer desires that to be the policy for his/her/its workplace, then the employer should be able to do that. The employer should be able to try to control the workplace as the employer sees fit.
I don’t know of an employment lawyer who would advise an employer to have such a policy because of liability concerns, but clients frequently don’t follow their lawyers’ advice.
Thanks for your continuing thoughts on this subject.
July 6th, 2008 at 9:56 amMostly Genius,
It’s not a question of trust. It’s a question of what the law allows and what applicable policies say if the policies aren’t in violation of any law. A NASCAR driver might ask why he/she can’t be trusted to drive a car 120 mph on the interstate, since he/she can obviously do it on the race track and is a much better driver than most people who operate vehicles on public highways.
Your liability questions are good ones. I’ll look into that further.
I’m fine with what you say in the last paragraph of your latest post. When your outside the workplace, you do as you wish as long as it complies with the law. When you’re at work, you do as your employer requires or be subject to discipline or termination as long as the employer is acting within the law.
Thanks again for weighing in.
July 6th, 2008 at 10:07 amMr. Phillips:
Please reread what I wrote, and reply to what I actually said. I would like to see those who are licensed to carry concealed allowed to carry at work. It has nothing to do with simply having a “registered gun”. The person is licensed, not the firearm. And that licensing generally requires a periodic criminal background check and often requires formal training in safe firearms handling, marksmanship, and the law as it relates to firearms and use of deadly force.
I think your hypothetical scenario is unrealistic in the extreme. I doubt that people who don’t already have such a license would seek one out just because their employer suddenly green-lights lawful concealed carry at work. Someone who wants to accept the responsibility and carry in self defense will already have gone to the effort and expense of obtaining such a license, and is likely leaving their sidearm locked up in their car while at the workplace so that they won’t be rendered defenseless during their commute or while running errands after work.
Rather, I think it highlights a perhaps subconscious irrational distrust of those who carry. Statistically speaking, concealed carry permit holders are very responsible and sober individuals who are much less likely to commit any type of crime than is the general population. They do not have the mindset of “hunting criminals”. They would not “clean [their guns] on break”.
This seems to be another manifestation of the “blood in the streets” fear that is commonly voiced when allowing concealed carry in public is proposed - and which has never come to pass. If responsible concealed carry isn’t causing carnage in public places like shopping malls, why would it do so at work?
I think a more likely result of such an announcement would be great wailing and gnashing of teeth by those who are terrified by the mere idea of firearms, and who cannot view those who possess them as responsible people, and who think words printed on paper will magically shield them from a murderer.
If an employer desires that to be the policy for his/her/its workplace, then the employer should be able to do that. The employer should be able to try to control the workplace as the employer sees fit.
From the point of view of property rights I tend to agree. However, when the employer mandates disarmament without also emplacing any effective security measures, like armed guards and metal detectors, and instead places their faith in an employment policy to prevent violence, they are actively placing their employees’ lives at risk. If the employer simultaneously says “you may not defend yourselves” while saying “I will not defend you”, severe liability must follow. You, as my employer, do not have the right to put my life in that degree of risk.
Also however, I personally have a problem with the property rights of a legal entity (a company, whose personhood is a legal fiction) overriding the right to life and the subsequent right to self-defense of actual, physical people. I believe in this matter the rights of the individual person should be given more weight than the “rights” of a company.
I don’t know of an employment lawyer who would advise an employer to have such a policy because of liability concerns
How many times has a licensed concealed carry holder murdered or attempted to murder coworkers? How many employees have been murdered in a workplace with a no-firearms policy? Given those numbers, which way should greater liability concerns be allocated?
To turn around your comment that “the Supreme Court has said that the Second Amendment allows the regulation of guns”, the courts have also held that employers do not have an absolute right to “control the workplace as the employer sees fit”.
I do not believe that laws should be based on phobias or unreasoning emotional hatreds. I extend that same belief to employment policies. I, as a responsible concealed pistol license holder, do not present a risk to my colleagues. Why should I be treated as though I do?
I believe that my proposal is a reasonable balancing of rights.
Thanks again for your time.
July 7th, 2008 at 11:23 am[...] the time, we really recommend that you review the Word of Employment blog’s take on “Bearing Arms in the Workplace” by John Phillips. He sums it up thusly: Some will say that the group [...]
July 7th, 2008 at 1:42 pm“It’s not a question of trust. It’s a question of what the law allows and what applicable policies say if the policies aren’t in violation of any law…”
This is where you blur the line. I am licensed to carry a firearm, but the hypothetical NASCAR driver doesn’t have the equivalent of a “speeding permit.” It is perfectly legal for me carry a handgun.
For you the question is what is the balance between the rights of the employer and the inalienable rights of the employee. For me the first question is what problems does such a policy try to prevent and how successfully does it do so? For me it is not a matter if an employer “can” but why they would even want to. I think they have been fed bogus information, probably based upon some kind of dogmatic precedent that has been regurgitated so many times that it is now the “common wisdom.”
July 8th, 2008 at 10:14 pmBlawg Review: Independence Day Edition,
Thanks for including this post in your review and for your encouragement of folks to read it.
July 9th, 2008 at 6:18 amJohn H,
Thanks for weighing in again.
I don’t know the answers to many of your questions. I don’t know where one would find those answers. There are a lot of opinions about your questions, but I don’t think there are factual answers. There are phobias on all sides of all issues dealing with guns.
When it comes to rights, there’s usually a balancing of competing rights that must occur. You have a right as an individual to carry a concealed weapon if you have a permit to do so. It’s my opinon that an employer has the right to prevent individuals from bringing weapons onto their property. Even the state laws that have been passed so far allow employers to ban weapons from the workplace, just not to ban employees from keeping weapons in their vehicles parked on employer property.
All employers have rules. In almost every situtation, some employees don’t like them, even though the rules are perfectly legal. If a rule is so onerous to an employee that it offends his/her conscience or moral standards or ethics or whatever, then the employee shouldn’t work for that employer.
It’s way too early to tell where we will be on weapons in the workplace eventually. Until that’s clear, I will continue to advise clients to ban weapons from the workplace if that’s what the client wants to do, subject to state laws that might make a policy tweak necessary here and there, e.g., the parking lot exception. As things now stand, if an employee with a license, a permit, or anything else brings a weapon to work and there’s a policy saying he/she can’t, he/she is subject to discipline up to and including termination. You may get your way one of these days, but as I’ve said, it’ll take a while.
Thanks again for your comments.
July 9th, 2008 at 10:36 amMostly Genius,
You’re right about the difference between you as a licensed carrier of a gun and a NASCAR driver. However, you may have a license to carry a gun, but you’re not permitted to carry it anywhere–at least, not yet.
It seems to me that the relatively low number of workplace shootings (when you consider the number of workplaces in this country) indicates that the no weapons policies are working well and accomplishing their purpose. I can’t prove that any more than you can prove that abolishing these policies would make violent events in the workplace even less likely to occur.
Employers are fed a lot of bogus ideas, just like employees are. I personally don’t think that the no weapons at work policy is bogus, but I understand that you do. We disagree, and neither of us can prove the other is wrong.
Common wisdom has a way of changing. It may be that the new state laws reflect that common wisdom about guns in our society is changing. Still way too early to tell, in my opinion.
Thanks again for weighing in.
July 9th, 2008 at 10:48 am“It seems to me that the relatively low number of workplace shootings (when you consider the number of workplaces in this country) indicates that the no weapons policies are working well and accomplishing their purpose.”
So you believe that the number of incidents would be higher except for a line in the employee handbook? To me that seems irrational, and you should read a bit about the people who commit these kinds of crimes.
If such a policy does prevent some incidents, what about the ones that fall through the cracks? It would be fair to say that when the policy fails it fails catastrophically. Workplace shootings end either with a suicide or the violent intervention of a third party.
July 9th, 2008 at 12:44 pmI don’t know if a line in the employee handbook keeps the incidents of violence lower. I think there is an argument to that effect.
If the line in the handbook is eliminated and employees with permits/licenses/whatever are permitted to bring their concealed weapons to work, workplace shootings are still likely to end with a suicide or the violent intervention of someone–perhaps an employee instead of a third party.
July 9th, 2008 at 3:45 pmYay! You are finally coming around!
Workplace shootings tend to end in suicide or violent intervention of a third party. So the response time of that third party has a direct impact on how many people are going to get shot. If the third party was already on site then the number of victims should be lower.
It doesn’t prevent workplace violence, but it sure could mitigate the amount of damage.
July 12th, 2008 at 7:03 pmIt could. It would, of course, depend on how big the place is, how close the third party/employee is at the time of the shooting. It would also depend on whether the third party gets off a shot before he/she is shot.
It should still be up to the employer, not the employee.
July 12th, 2008 at 7:57 pmMr. Phillips:
You have a right as an individual to … if you have a permit to do so.
Erm.
I think you don’t understand what the term “Right” means.
July 13th, 2008 at 8:31 pmThere are a lot of things I don’t understand.
July 14th, 2008 at 9:40 amWhile I am no Constitutional expert, I was hoping to give a slightly different perspective on the Second Amendment.
The entire Bill of Rights is about powers that the people reserve FROM the government, to the government’s limitations. We keep in our own hands the abilities of the government to perform unreasonable searches, or restrictions of speech, etc. indefinitely as per the wording of the Bill of Rights.
Even if we surrender a right (alcohol consumption) to the government, we have a means to retake it through amendments. So if no amendment is offered to revoke our right to have and to hold (firearms) the government has no constitutional say in the matter, and the balance of powers should not allow the Supreme Court to strip the people of their Constitutional reservation of power from the government. IOW, had the SCOTUS vote gone 5-4 against the Second Amendment and individual rights, we would still have needed an Amendment to revoke this right.
As far as the first clause of this amendment, what if the framers were in fact allowing the people exactly the right to arm or disarm the military? (A stretch?) What if the first clause was more of a gentle reminder that they should allow the military its arms most of the time? The very next amendment is the quartering act. There is even a section in the Constitution about standing armies that places severe limits on how large and how long.
In that day, a standing army which the King forced the people to quarter was a great evil. It was a sign of naked force against the people and used to subdue the populace rather than protect them. Could the first clause of the Second Amendment then be invoked to allow for “bloodless revolutions”? There is no right for an army to be armed, unless I’m missing something (re the 1930’s in which much of our army drilled with wooden guns, and dummy tanks etc.)
I have had a concealed carry permit in the past, and have carried my gun around in my car, occasionally to work (if I were going to go shooting after work). However, my company had strict prohibitions against such and most of the time I did obey their wishes.
That said, I still feel relatively safe at work, as I know quite a few people who do bring firearms to work in their vehicles. I feel pretty confident that one or two of them would be able to make it out to their car in time to make short work of a deranged shooter. I also trust these people as I have been shooting with many of them. I feel that an employer can make the rules as they have the property rights of whatever property they lease. But I also feel that anybody that does bring a firearm in defiance of these rules should suffer the consequences should they be caught. Private property rights should have a say in this as well.
July 29th, 2008 at 8:02 amAdam,
Thanks very much for your perspective. You covered ground that hadn’t been previously covered, and I appreciate that. It’ll give all of us something more to think about as we consider this issue further.
July 29th, 2008 at 8:17 am