Conservatarian values collide on the question of guns and employment. Specifically, a Tennessee law that would bar employers from taking action against employees who bring a gun to their work place. There was a law passed that allowed people to legally take their guns on to others’ property as long as they kept it in their car. The law was amended to prevent employers from firing employees for doing this.
Dustin Siggins and Doug Mataconis argue that the law goes too far because it infringes on the property rights of the employer. Jazz Shaw argues:
There is also the question of where the employer’s “property” ends, which Dustin correctly notes in his piece. True, the parking lot is the property of the employer, but does that make the employee’s automobile their property as well? You either allow employees to park in your parking lot or you don’t. What they have in their cars – assuming it’s legal – is really their business if it’s not being brought into the workplace and potentially affecting the owners and staff. In a parallel case, many employers with security concerns do not allow workers to bring their cell phones into the office because of the camera and audio recording capabilities of modern phones. But they pretty much universally allow the workers to lock them in their cars while at the office. And most importantly, that scenario applies to a device which isn’t even covered by your constitutional rights.
This law seems to me to have been a good compromise. The employer can bar carrying weapons in the workplace, but the employee’s car is not the workplace. And punishing them for such storage is an unreasonable burden on their constitutional rights.
On the property rights question, I am actually squarely on Shaw’s side. When I was substitute teaching, I was technically violating city law and school policy because brought tobacco on to the premises. However, my belief is that since it stayed in the car, it was more on my own property than theirs until or unless I took it out of the car. (Which, also technically I did, but only to transport it off school grounds so that I could smoke, but we’ll forget that for a moment.)
The conflict to me is not between the Second Amendment and property rights, but the Second Amendment and the right of employers to hire and fire as they please. And here, I actually side with the employers. While I would criticize any employer who refused to hire people who (for instance) own guns at home, I don’t believe that gun ownership should be – at the current time – a protected class. If such policies become sufficiently widespread, then I might reconsider. Such policies are likely to be more widespread when it comes to “No guns in your car” policies, but the rationale for such a policy is notably more acute.
So my split-the-baby solution is that, given that Tennessee is an employment-at-will state, I would allow them to fire employees under the EAW doctrine. However, I would not view that particular reason for doing so as a “For Cause” firing. Meaning, the employee would be eligible for unemployment provided that at no point they presented a danger to anyone else (by either taking the gun out of the car, or threatening to).
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26 Responses to Sittin’ In The Parking Lot, My Finger On the Trigger
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Seems like a rational baby splitting
Providing someone was fired for leaving a firear. in the car, not for owning firearms in general.
Probably once every week or two on average I’ll have a pickup or delivery at some customer where the facility will be posted as a tobacco-free campus. They don’t (can’t) really forbid me from bringing it onto the property but I’m not supposed to smoke at all, even in my truck. If it’s a quick in and out I don’t really care, but if they’re gonna make me sit around and wait on them for a couple hours or more, fuck em. I’ll sneak a smoke in the sleeper. It sort of feels like high school again.
What really annoys me is when the ban extends to vaping. That’s when I know it’s really just about aesthetics.
My campus is going “tobacco free” and I think it’s mostly a bad thing, even though I don’t smoke. I do see an interest in not having cigarette butts littering the walkways, etc., but that doesn’t seem to have been much of a problem before, although I’m not part of the maintenance crew, and they would know better. (Now, by the way, people seem to disregard the rule, either because they don’t care or don’t know the university it “tobacco free.”)
The worst thing about tobacco-free campaign is it seems to be adopting an almost crusade-like approach way beyond the problems it’s supposed to solve. About 1 or 2 months ago, there was some rally, sponsored by the university (IIRC), of people in support of making the campus even more “tobacco free” than it already i, and I’m not sure how much more it could be, unless we start testing employees and students for traces of nicotine in their systems.
Btw, I agree with you (and Oscar) about your baby-splitting. I have to say though, that when some state legislature starts telling business owners, churches, schools, etc that they can’t ban guns on their property it’s moved from protecting the rights of gun owners into full blown gun fetish territory.
I think this can get a bit sticky if it’s a public accommodation situation, for 2 reasons:
1) It is a protected right, so a business that is open to the public should be open to the public. Similar logic as applies to providing service to other races, or LGBT community. Of course, policies like this are perfectly reasonable. Or even insisting that firearms are out of sight, out of mind.
2) A firearm stored in a car in a public lot is not as secure as one stored in a retention holster on the owner. Even if the car is fitted with a lock box.
That said, it is one of those places where competing rights are at play and it’s a tough needle to thread. Also, my points above would only apply to customers of a business, not the employees.
Oscar, I have to strongly disagree with your first point. Yes, “keeping and bearing” arms is indeed a protected right under the second amendment, but that just limits the authority and powers of the legislature and other government actors. It says nothing of what people may or may not do in their capacity as private citizens on private property. It’s not even really logically possible for a private citizen to violate the constitution since its purpose is to be a law about Law; what statutes may or may not be enacted and how government agents must conduct their duties.
Your comparison to anti-discrimination protections is specious. First, since they arise from statutory law; rather than directly from the Constitution, law which itself is subject to, and has passed, constitutional review. Second, because anti-discrimination laws are about identity, who you are, as opposed to actions, what you are doing. You aren’t genetically predetermined to be a gun owner and you weren’t born with a gun growing from your hip. You may not like it, but you actually can leave your gun at home or locked in your car. That option isn’t available for the guy with black skin, the woman with ladyparts, or the person with homosexual orientation. Anti-discrimination laws don’t actually create rights for the protected classes, rather, what they do is restrict the actions of certain private and public actors.
If you wanted to complain about a prohibition against guns in a government building or on government land you could make a colorable argument based on the second amendment. But the situation I’m describing cuts exactly the opposite direction for you since the law in question reatricts the rights of private property owners.
I’m perfectly willing to respect, and even defend (remember, I was in the military, took an oath and everything) your rights under the second amendment. But the second isn’t some super-special amendment that trumps any and all other considerations or supersedes other constitutionally protected rights or, as you’re attempting to assert, applies to private actors in a way no other constitutional provision does.
As to your second point, whatever. But it would seem to depend a great deal on who’s carrying the gun.
Hindus may not like it but they are not genetically pre-disposed to be Hindus. They don’t have to like it, but they can eat beef/ join in Christian prayers in the classroom/workplace.
Sikhs may not like it but they can leave their knife and turban at home.
And so we go on. The question is whether being forbidden to carry fire-arms is an unreasonable burden to impose. I happen to think that its not. But then I’m in favour of repealing the 2nd amendment anyway. But, it seems that given that you do accept the 2nd amendment, you do regard depriving people of that liberty arbitrarily (even by non-state actors) as unreasonable.
Mural, uhhh, no. If we’re gonna play a game of “One of these things is not like the others, one of these things just doesn’t belong” then in the standard EEOC list of protected classes, religion is clearly the outlier but we’ve still decided to protect it as if it’s an immutable trait.
But now you’re comparing gun ownership with a religion? That’s… an interesting move. Or maybe it’s more like sexual orientation. Ammosexuals.
But I guess you don’t understand the difference between a law limiting the actions of individuals vs a constitutional provision limiting the power of government to enact certain kinds of legislation either.
No, I get the difference. Since I endorse thin liberalism and am in principle committed to at least saying that there is nothing unjust if patriarchy or other oppressive norms remain so long as the formal liberties are protected, I’m clean. But, at least the last time I checked you were not a thin liberal. If you believe that the liberties ought to be substantively protected and not just formally so and you think that the right to carry fire arms is an important liberty, then it seems inconsistent of you to be fine with private infringements of said liberty.
But let me push you in a particular direction. I’ll admit, I’m not that thin a liberal. Consider. I believe that freedom of association is a fundamental liberty. Thus, in addition to thinking that governments ought not to arbitrarily (without due process and good reason) prevent people from associating, I also think that individuals should not arbitrarily (without good reason)should not prevent others from associating. i.e. A government which fails to criminalise kidnapping and imprisonment does not protect the right to association adequately. Plausibly also, a government which allows contracts like in Jim Crow which prevented home owners from re-selling to minorities does not adequately preserve freedom of contract.
Leave aside what the law actually requires and ask what the law ought to require.
And yes, you Americans do seem to have an almost religious attachment to their guns.
*your* guns
Another difference, Murali, is that an employer can establish at least a rational basis* for believing that banning guns on the premises will make the place safer. I can think of arguments for why a ban wouldn’t necessarily make the workplace safer, but it’s not really an arbitrary decision by the employer.
I can see an employer, forbidding a Sikh to carry knives on the premises, too, and remain in compliance with relevant laws against religious discrimination. (Perhaps, though, in that case, a “reasonable accommodation” could be something like Oscar notes below: a weapons check in when the employee enters. Even then, the Sikh would have to part with his/her knife.)
Also, in the US, when it comes to employment, employers can usually fire people for exercising fundamental rights like freedom of speech or association, even if there isn’t a “rational” reason for the employer to do so. (And with guns, as I said above, there is a rational basis.) You could probably counter that consistent with what you’ve just said, they shouldn’t be allowed to do that and that at any rate, the fact that the principle is violated in other realms doesn’t mean violating the principle is therefore a good thing. And you’d be right. But I still return to my “banning guns” can be a rational safety decision.
*I realize I’m invoking a legal-ish term, and perhaps it’s a question-begging term. “Rational basis” is probably the lowest hurdle for action–at least state action–under American jurisprudence. When it comes to most fundamental liberties, courts adopt a more severe test than “is it rationally related to a legitimate goal?” Still, we’re not talking about the state, and non-state employers, I think, should at least have greater latitude when it comes to devising “rational” rules for the workplace. Perhaps not as much as they exercise in practice, but still, they should have more leeway than state actors.
I’m on vacation, so I can’t engage this fully, but let me ask one question.
Would you support a business owner denying entry/service to a person wearing an Obama or Romney shirt? Why or why not?
I’m on vacation, so I can’t engage this fully, but let me ask one question.
Would you support a business owner denying entry/service to a person wearing an Obama or Romney shirt? Why or why not?
That’s a tough one. My first instinct is to concede the prerogative of a business owner to do refuse to do business with anyone for all but the statutorily distinguished reasons (assuming, as I do, that the statutorily distinguished reasons like race, religion, ethnicity, gender, and in some cases now, sexual orientation, are properly designed to fight invidious discrimination).
And yet, I’m reminded of something I read at bleeding heart libertarisn concerning the recent bruhaha over the Indian pizza joint. In that article Mike Munger argued that being open for business implies being open for all comers. (Here he was drawing a distinction between, say, being open to customers and negotiating, say, catering contracts. The latter, for him, implies a broader prerogative to discriminate, even for causes you or I might deem wrong.) When I read it, I said to myself, “that sounds nice. I think I agree.”
How do I, then, still claim that a business owner can forbid its owners from carrying guns when entering the premises? I’ll still rely on my “rational basis” for believing that forbidding guns can help deter violence. Again, I can imagine ways in which such a ban wouldn’t deter violence. But I think it’s at least reasonable to believe that it might.
Now, if we move on to what the discussion of whether an employer can ban employees from bringing in guns, again I’m torn, but for slightly different reasons. I do believe that it would be a better world in which employees did not have to surrender their rights by virtue of being employees. I like the idea of employees being able to do things without sanction from their bosses provided those things don’t harm others and don’t harm their work performance. I think it would be wrong, for example, for an employer to disciplining someone for being an Obama or a Romney supporter (for the more Godwin-esque candidates it’s more complicated, but even then I think I’d like the presumption to be against disciplining for the support for said Godwin-esque candidate per se). In fact, the “for cause” laws I support would (I hope) militate against such disciplining, and I see that as an argument in favor of “for cause” laws.
Still, I fall back on my “rational basis” argument. It seems at least reasonable–it’s not kooky, even if sometimes wrong or not the panacea it’s envisioned as–to state that banning guns from an establishment helps secure safety.
Please forgive my grammar/spelling errors above. I won’t make any admissions, but it’s possible that someone using my computer has been drinking alcoholic beverages.
Murali;
But, at least the last time I checked you were not a thin liberal.
Well I could stand to lose a few pounds, so I’m working on that. 😉 But seriously, I guess I’m not sure exactly what you’re asking. My comment to Oscar was about the legalities of the question as they exist since he chose to draw an equivalence between gun ownership and minority status and invoke anti-discrimination protections/principles. So in that exchange I’m mostly offering a “thin” response to what seemed like a “thin” (i.e., formal) argument.
If you believe that the liberties ought to be substantively protected and not just formally so and you think that the right to carry fire arms is an important liberty, then it seems inconsistent of you to be fine with private infringements of said liberty.
I guess I’m a thin liberal in some areas and thicker in others. I’m not particularly bothered by accusations of inconsistency from a libertarian/classical liberal perspective since I don’t claim to subscribe to that particular flavor of liberalism anyway. I’m fine with drawing distinctions between the purely private, purely public, and “hybrid” public accommodation spaces. I suspect that hybrid middle ground is more problematic for someone judging from a unidimensional axis of liberty versus the multi-dimensional plane of liberty plus equality/egalitarianism.
To clarify, I have a strong commitment to the rule of law and my commitment to gun rights is almost entirely derivative of that larger commitment vis-a-vis the second amendment as interpreted by SCOTUS. So I think it’s fair to say that my commitment to gun rights as a liberal value is thin. But my commitment to the rights of minorities defined by immutable, inherent traits is thicker. I don’t see a contradiction since they’re entirely different issues.
I think it should also be pointed out that having a “no guns allowed” policy in a workplace/business isn’t the same as discriminating against gun owners qua gun owners. It’s not refusing to hire or do business with you. It’s just saying leave your gun at home or whatever and don’t bring it on my property. If you so intensely identify with your weapon that such a restriction is unacceptable and/or feels personally discriminatory then that sounds like a personal problem to me. As in, your weird personal psychological problem. Ammosexuality nervosa, perhaps.
To clarify, I have a strong commitment to the rule of law and my commitment to gun rights is almost entirely derivative of that larger commitment vis-a-vis the second amendment as interpreted by SCOTUS.
Why? I mean, you don’t support the drug war or anti-ssm statutes or anti-immigrant laws even when they are the law of the land. Why should you support the 2nd amendment just because it happens to be the law. I mean sure, judges have to recognise it, but that is different from thinking that justice is done in them doing so.
Oscar: Would you support a business owner denying entry/service to a person wearing an Obama or Romney shirt? Why or why not?
Well first off, she would be well within her legal rights to do so. Political orientation/affiliation isn’t a protected class and many/most public-facing businesses will typically post a sign reserving the right to refuse service for any reason. I assume this is intended as a CYA to eject obnoxious/intoxicated/unpleasant individuals. Also, such things as dress codes/policies at, for example, restaurants aren’t unheard of.
But more generally, well it depends a lot on the circumstances. I tend to the view that the commercial space of society should be inclusive and, like Mindless Diversions over at O.T., a “no politics” zone.
How that breaks down in practice would be different for employees vs customers. For employees I think a dress code stipulating no printed T-shirts and such is appropriate. For customers, I think the onus of toleration falls to the business owner. So to answer your question, legally yes, in practice not so much.
But there’s exceptions to that. A simple expression of support for a political candidate is one thing, but some political messages can be downright transgressive in tone. Like the guy I saw a few days ago wearing a shirt basically claiming that liberals don’t work for a living and just want everything given to them. Pissed me off given that I do the exact same job he does, 70-80 hours a week,and I do it good enough to be one of the highest ranked drivers in my company. Just your typical, ignorant, deliberately transgressive, TeaBilly bullshit.
I too sign on with this baby splitting. But, in one of the few areas where I don’t go full on business owners rights, I don’t believe a person should be fireable for doing something on their own time if they aren’t representing the company in any way. Unless it is an at will situation.
The thing is, that in most states, it’s going to be an “at will” situation.
It’s almost all at will, as Gabriel says. If the government starts more significantly meddling in who can and cannot be fired, I’d be inclined towards protecting gun owners both with guns in their home and guns securely kept in their cars.
Oh, I agree with that, and I am a big proponent of At Will. But, as I am trying to imply, if it is not an At Will state, then it should default to protecting the individual before protecting the business. In my ideal, the individual is always first, and the gov’t last. Corporations fall in-between, with how much individual control there is determining its place between the two.
Given that this is a post by Will on firing people for a gun related matter in an at will state, I’m surprised no one has made a fire at Will joke yet. Do I have to summon Mike Schilling?
Everybody wants a piece of me…
One other exception to the “For Cause” (in addition to the threatening). If an employer is a high-security facility, with a consistently manned entrance and exit to the parking lot, I think they have made a case that they consider security to be sufficiently important that people who have guns in their cars need to find some place else to park.
Alternatively, a business could have a firearm check option. Courthouses around here do this, where you can check your weapon(s) with the security detail & get them back on your way out the door.