Legislators Seek to Create New, Unnecessary Protected Class: Gun Owners

by Hans Bader on June 13, 2012 · 9 comments

in Economy, Legal, Personal Liberty, Property Rights

Generally, the Constitution only binds the government, not the private sector. For example, the First Amendment protects speech, and even insults, but that doesn’t mean you can’t kick someone out of your home or business for insulting you. But Missouri legislators have decided to turn gun owners into a protected class, citing the Second Amendment — which only applies against the government — as a reason to restrict private employer policies regarding firearms. As Missouri Freedom Watch notes,

HB 1621, which passed the Missouri House 115-36, makes it unlawful for an employer to fail to hire, discharge, or otherwise discriminate against an employee because that employee “has a concealed carry endorsement or uses his or her firearm for lawful purposes.”  In effect, the bill makes it unlawful for an employer to discriminate against gun owners in the terms and conditions of their employment.

While it is certainly comedic that Missouri Republicans want to attack the non-existant problem of employment discrimination against gun owners, Missourians should be more troubled by Rep. Brown’s justification–the Second Amendment.  The Second Amendment protects a citizen’s right to bear arms from government intrusion.  But it does not impact the ability of private citizens to place restrictions on guns.

Employers have an absolute interest in preventing violence in the workplace.  Indeed, many employers have policies restricting employees from bringing weapons into the workplace–including policies prohibiting workers from storing weapons in their vehicles in the parking lot.  If HB 1621 were to become Missouri law, those legitimate policies could conceivably be used as evidence of an employer’s intent to discriminate against gun owners.

By placing gun-owner “rights” above the rights of property owners to control the manner in which persons enter and interact on their property, HB 1621 makes Missourians less free.

I have nothing against gun owners. I argued that the Second Amendment secures an individual right to bear arms even before the Supreme Court reached that conclusion in District of Columbia v. Heller (2008)But that does not mean that employers should be forced to employ, or associate with, people who “use” a “firearm for” any “lawful” purpose — like firing at a target with the employer’s face on it. Nor should all employers be forbidden to discriminate in “terms or conditions” of employment against gun owners — a phrase that courts, unfortunately, construe expansively as covering workplace comments or conduct that create a “hostile work environment” for members of protected classes. (See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).) Working for an anti-gun group and having to put up with anti-gun tirades on a daily basis might seem like a “hostile work environment” for some gun owners (say, a janitor who owns lots of guns), but that doesn’t mean they should be able to sue over the anti-gun rhetoric.

Law professor Stephen Bainbridge explains how the proliferation of new protected classes (such as gun owners) and creation of new reasons for suing employers reduces economic efficiency and harms labor markets.

There is no reason to apply Second Amendment rights against private entities like employers, since constitutional rights do not, as a rule, apply against private institutions. For example, the Supreme Court has held that the Fourteenth Amendment’s prohibitions against discrimination don’t apply against anybody but the government. See United States v. Morrison, 529 U.S. 598 (2000) (invalidating Subtitle II-C of the Violence Against Women Act); San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522 (1987) (private entity could not be sued under the Constitution for discriminating against gay group).  Similarly, it has held that other constitutional rights, like due process, only apply against the government. See Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). And it ruled that the First Amendment did not apply against a privately owned shopping mall in Hudgens v. NLRB (1976).

Bob June 13, 2012 at 6:16 pm

Yeah, so how come some criminals go to jail for violating someone’s civil rights?

FrankInFL June 14, 2012 at 7:16 am

Well, there’s also nothing in the Constitution that specifically protects blacks or Presbyterians either. If we’re to apply your standard properly, ALL protected classes have to go; segregated lunch counters and inter-city buses should be okay.

Either way, it’s OK with me, but let’s at least be consistent.

BHirsh June 14, 2012 at 10:32 am

Yes, and no.

An employer cannot, for example, violate an applicant’s free and fair access to employment based upon any ethnic, racial or political reason, nor terminate them for same, which would be violations of his/her civil rights.

Keeping and bearing arms is also a civil right, and deserves the same protection.

While property rights can conceivably prevail on this issue viz the interior of businesses not open to public access, they cannot prevail in the parking lot, because such bans impermissably interfere with employees’ civil right to protect themselves in transit to and from that location.

Businesses may not like it, but that’s just too bad. In our nation’s priority of civil rights, the right to life and to protect that life is listed FIRST.

Parks207 June 14, 2012 at 11:50 am

I have to agree with you in principle, property owners shouldn’t have to put up with the government deciding for them who can and cannot enter, exit, employ, service, upon their private property. Although, last time I checked, all branches of government have already decided that we cannot prevent the public’s access to our goods and services. Seeing as public accommodation (civil rights issue) trumps property owners rights. Example: say I own this little bar in NY and the government decided for me that it is best for all mankind that smoking not be allowed on my private property. Or, if I ask someone to leave my restaurant do to the color of their eyes. The issue of guns is no different, it’s a civil right codified within the Second Amendment of The Constitution. Naturally due to space provided I am unable to flesh this out more completely.

doug June 14, 2012 at 1:44 pm

“There is no reason to apply Second Amendment rights against private entities like employers, since constitutional rights do not, as a rule, apply against private institutions.”

Interesting quote. Then substitute “Second Amendment” with “minority”. Then employers can refused to hire a person just because they are black, or brown, or….whatever, then by your logic.

Mike the Limey June 14, 2012 at 2:18 pm

The writer should be more concerned that such discrimination exists, especially when it comes to employment, or does he see discriminatory employment practices as being acceptable?
If discrimination based on race, religion, gender, sexuality or age is seen to be unreasonable, then by what magic is any other discriminatory action different if the matter has no bearing whatsoever on a person’s ability to work?

Mogg June 14, 2012 at 3:07 pm

If you were to do a search and replace on this article,
and change all instances of “gun” or “Gun owner”
with the terms gay, female, christian, immigrant, or black,
You would then see that discrimination is discrimination.

Mike Settles June 14, 2012 at 7:13 pm

The preeminent issue at stake is this:
Do “property rights” trump the right to the means to self-defense? So far, courts have sided with the property owners. I believe this to be inherently wrong.
You ALWAYS have the RESPONSIBILITY of self-defense. 2nd Amendment and 44 state corollaries guarantee you the MEANS to execute that responsibility.
Merely visiting someone elses property doesn’t excuse you from the duty to defend yourself, and thus it must also be guaranteed that no one may prevent you from having the means whereever you might legally be.
If one wishes to argue this from a “property rights” point of view, consider that your body and all that which you have about your person is YOUR property: That doesn’t change just because you enter my store, my factory, or my residence.
Then too, we have a problem in that the Bill of Rights (especially 2A) is not treated as LAW. Were it so, any politician who wrote legislation which abrogated anyone’s right to keep and bear arms would shortly be serving jail time.

JD June 14, 2012 at 7:42 pm


Sgt. forced to sit in jail 2 weeks for unregistered handgun and ammo while real, actual criminals were released from custody for later arraignment.

Because of “Snowmageddon,” Sgt. Corrigan said, most of the other people in police custody were released with an order to come back for arraignment at a later date. He said he asked an officer to check on his case and was told, “You know what you’re in here for; there’s no way you’re being released.”

Police force Attorney General candidate to sit in jail while they determine if home invader really was a home invader.

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