Posted on 03/13/2007 11:26:20 PM PDT by neverdem
The U.S. Constitution and most state constitutions guarantee the right to keep and bear arms. Transporting a firearm in your vehicle for protection while traveling to and from work, grocery shopping, to the doctor's office, to a shopping center or anywhere else people commonly travel is central to that right.
In Plona v. United Parcel Service, 2007 (U.S. District Court, N.D. Ohio), UPS fired an employee for having a firearm stored in his vehicle in a public-access parking lot used by UPS employees and customers. The court found that "the right to keep and bear arms" is enough to form the basis of a wrongful termination. Further, U.S. District Judge Ann Aldrich found that "allowing an employer to terminate an employee for exercising a clearly established constitutional right jeopardizes that right, even if no state action is involved."
Businesses are prohibited from discriminating because of race, age, sex, religion, nationality, etc. And clearly they are also prohibited from discriminating against those who exercise their right to keep and bear arms for personal protection and other lawful purposes like hunting and target shooting.
Individual constitutional and legal rights do not end when we drive onto a business parking lot. Simply put, business property rights do not trump the Constitution or the law.
State legislatures have a duty to protect the constitutional rights of individuals from abuses. They must act as a shield to protect constitutional rights of the people; they also must act as the point of a sword to punish those who violate our inalienable rights. That is at the heart of this debate.
Businesses cannot substitute their own political philosophies for constitutional rights. And nowhere in the Constitution are businesses given any authority to prohibit rights in their parking lots. Businesses have no more right to ban firearms in private vehicles than they do to ban books. Businesses may impose only restrictions that do not rise to the level of contravening protected rights.
Nor can employers require you to waive your protected rights. They cannot, as a condition of employment, require you to give up your right to vote; neither can they require you to give up your right of self-protection or your right to keep and bear arms.
On the common-sense side, think about a mom who doesn't get off work until midnight. She may drive 30 or 40 miles over dark, desolate roads to get home to her family. She may stop at a convenience store and pick up bread for school lunches the next day.
Her employer has no right to tell her that she'll be fired if she exercises her right to have a firearm in her vehicle for protection.
Think about women who work late hours as cashiers at supermarkets. And what about employees of all-night pharmacies, or nurses or lab technicians who work late shifts and drive to and from work through dangerous areas late at night?
As one female legislator asked, what about lawmakers who travel their districts at night for speaking engagements? Are they not supposed to park anywhere or stop for a cup of coffee or a soda or a bite to eat because they carry a gun in the car for protection?
A woman who is being stalked or who has obtained a domestic violence injunction against an abuser needs protection. Police often advise these women to buy a gun for protection because police can't be there to protect them. An employer violates her rights if the employer attempts to force her to waive her rights and chose between her life and her job.
The keeping of firearms in a vehicle is a preeminent right that is well-grounded in law and public policy. Legislatures must stop the abuse of our most basic and fundamental Second Amendment rights on the part of corporate giants.
amchugh: "Second amendment rights trump private property rights? I don't think so, but it'd be nice if it were so (for 1st amendment too!)."
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I'm getting tired of explaining that this is a Fourth Amendment issue, but...
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You have this all wrong. It is a private property issue: your car is your private property and (for Fourth Amendment purposes) is considered to be an extension of your home. And like your home, the police must have a warrant to examine (search) what is inside of it.
No private party has any right to define what may be (legally) secured inside your home or your car. The employer's property rights end at the point at which your tires contact his pavement.
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U.S. Constitution: Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The Employer's rights only extend to telling you whether or not your tires are allowed to contact (park on) his pavement -- or whether or not he will employ you.
And if he conditions that permission on what is in your car? Let's take guns out of the equation. Say an employer makes a rule that you cannot leave valuables in your car in his lot, because he believes that would attract thieves. You agree, but decide to leave some jewelry in the car, because your work precludes its wearing during work. Your boss discovers that, and terminates your employment for violating his rules that you agreed to.
Valid or invalid? Is your fundamental right to own property superior to his fundamental right to decide what is allowed on his property?
It is an interesting decision but only a District Court..
Great analogy.
Lex:
And if he conditions that permission on what is in your car?
Your employers 'conditions' cannot deprive his employees of their constitutional rights.
Let's take guns out of the equation.
Lets not. Guns are beyond question an enumerated right.
Say an employer makes a rule that you cannot leave valuables in your car in his lot, because he believes that would attract thieves. You agree, but decide to leave some jewelry in the car, because your work precludes its wearing during work. Your boss discovers that, and terminates your employment for violating his rules that you agreed to.
Your boss made an unreasonable 'rule', coerced your agreement to it, then violated your property [your vehicle] searching to find his 'contraband'. A jury will laugh him out of court.
Valid or invalid? Is your fundamental right to own property superior to his fundamental right to decide what is allowed on his property?
Property owners who do business in the USA are obligated to obey our "Law of the Land". [just as all of us are] -- Our supreme law says we have a right to own & carry arms, which shall not be infringed.
Trying to restrict the carrying of arms to & from work is an infringement, no matter who initiates the 'ban'.
That's interesting. What if when you apply for employment initially you are asked to sign a "hold harmless" agreement with the understanding that the workplace is a "gun free" zone and with this clear understanding and agreement you undertake employment. Sign and you can't sue because you knew going IN what the situation is, in that regard. Now what? Do you walk away from a good job? Be realistic. Good job, good perks (medical, dental, etc) THat's my situation. As a teacher I'm already forbidden by law from being armed at work. There is no public school where I could teach where that is not in force. But a private employer? What then?
My concern is the continuing circumcision of our rights (property being the first among them) by the State.
If allowed to continue, we will have no rights to speak of. That's why I brought up what's going on in airports today. A sterling case of BOHICA if i ever saw one.
My point is similar to yours.
Employers can not regulate what publications you have in your car, and to be consistent, can not regulate if you have a firearm in your car. And... I agree that you can not have anything like a gun or a hustler displayed openly.
That said, I do not advocate having a firearm in your car on a military installation, in Massachusetts or any other state that has restrictive 2nd amendment laws.
Well employers certainly have been able to curtail the right of free speech. I think the constitution refers to the government not abridging the rights.
Where does the constitution guarantee you a parking spot? Or a job?
Lets not. Guns are beyond question an enumerated right.
So are property rights. Rather than address the real issue, which is a conflict between two rights of two people, you would rather continue to demagogue.
Your boss made an unreasonable 'rule', coerced your agreement to it, then violated your property [your vehicle] searching to find his 'contraband'. A jury will laugh him out of court.
No, he made a reasonable rule based on local robberies, the worker voluntarily agreed in order to have a convenient parking spot, and left the evidence of noncompliance in plain sight hanging around the rear view mirror. Now that I've stripped away your straw man interpretations of my hypothetical scenario, what should the jury say?
Our supreme law says we have a right to own & carry arms, which shall not be infringed.
It also says that we are to be secure in our property. Your car and all its contents are only on that property by sufferance. If you don't like that, you are free to work or park elsewhere. Secondly, if your gun is in your car and you are not, you cannot be said to truly be "carrying" it. At that time, it is not a defense, it is just another possession. That's why I posed the question in terms of conflicting property rights.
Police make warrantless searches of cars all the time. I agree that it should be an extension of your home, but that is not how the fourth amendment is interpreted in today's legal system. In CA at least, you waive your right to not have your car searched when you sign the little form for your driver's license. Although you should not be able to waive your rights, there it is.
"Second amendment rights trump private property rights? I don't think so, but it'd be nice if it were so (for 1st amendment too!)."
There is some confusion as to the ruling by the court. The court denied the UPS motion to dismiss, meaning that the case may go to trial. The facts were not clear as to whether the parking lot was on UPS property or on property not owned by UPS. For the purpose of the motion, the court is required to assume facts in favor of Plona, so the court assumed that the property was not UPS property.
Thus, the court said that an employee could have a case for wrongful termination if UPS fired the employee for the sole reason that the employee had a firearm [complying with local law] in the car, assuming that the car was not parked on UPS property.
It’s really not a property rights case at this point. We will see what happens as the case continues.
For a copy of the ruling, see:
http://volokh.com/files/plona.pdf
I once turned down a job - one which would have meant a salary increase - just because of this issue.
Sign at the entrance to the parking lot: "No Guns Allowed on Company Property". Hmmm...
So, after my interview, while the HR director was all ready to have me sign on the dotted line, I asked about the sign, and the policy, specifically citing the fact that I lived 35 miles away, that I had a CCW, and that I preferred to be armed while commuting. The issue of my safety to and from work, and whose responsibility it was should I not be allowed to protect myself came up.
The HR director, and ex-Army MP, got his back up right away that I would have the nerve to question this policy, and insisted that it was for the safety of all employees. I pointed out that I was not asking to carry while on the job, only to keep my weapon in my truck while on company property without violating company policy.
After discussing this for a bit, I stood up, told him that I could not accept employment under those conditions, and left. He was incredulous, as were several of my friends.
I'm self-employed, so that makes it easy for me. The reason I'm self-employed is that I won't cotton to someone's else's hare-brained rules for very long, like those regarding firearms. I left a good-paying, secure job at Qualcomm in San Diego over this very thing back in 1998. What a pack of sheep; it was pathetic. And my sudden departure really hosed up the *all important project* that I was main gun on (no pun intended). I still feel sad about that... ! $;-)
Neither circumstance applies here.
This article is arguing in favor of just such legislation.
It addresses the collision of rights, the property rights of the business and those of the individual. If the business prohibits arms in vehicles on their property, they effectively prohibit them in the vehicles on the way to and from work, as well as being armed at necessary stops along the way.
What could be more reasonable as a resolution of those conflicts than to mandate that weapons must be left locked in vehicles, unless the business allows other wise? People have rights, just as businesses do. (And most of the businesses in question are not the individual property of an individuals, those tend to better take the needs of their employees into consideration. They also tend to provide their own security, not depending on armed or unarmed licensed security guards
Thanks for the info. That puts this in a different light.
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