Restrictions cannot contravene the Constitution

The Star-Telegram ^ | Mar. 12, 2007 | MARION P. HAMMER

[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.

---

Marion P. Hammer is a past president of the National Rifle Association. www.nra.org

[Abogado]

Utter nonsense. Why would the Second Amendment work differently than the First? My right to free speech is seriously curtailed while I'm at work. I could go to the mall and use abusive language or bad-mouth my company's products. Can't do that at work and remain employed. It's that simple.

Unless your employer is the government, your argument is absurd. Its not a government curtailing your right to speak out at work, but rather a fellow citizen.

[Ronaldus Magnus]

My right to free speech is seriously curtailed while I'm at work.

But you freedom of speech is generally not restricted when you are in your company's parking lot. Business parking lots are considered part of the public sphere.

[FreedomCalls]

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.

Yes, they can. A non-disclosure agreement -- a condition of many jobs -- asks you to waive your right to speak freely. A government security clearance does the same. A binding arbitration agreement waives your right to a trial by jury. Certain jobs require you to submit to a search without a warrant to access the workspace such as airline pilot. And so forth.

[FreedomCalls]

You are dead wrong. Try firing all women, because they are women.

Are there any Catholic women priests? Any male waiters at Hooter's?

[tpaine]

A [constitutionally based] 'public policy' compromise has been made [in the workplace] between an absolute personal right to be armed, and a business owners right to control employees behavior on the job.

Employees can carry ~to~ the job, and leave their arms locked in their vehicles while working.

Why is this compromise opposed? Who benefits by restricting the individuals right to carry?

An employers 'conditions' cannot deprive his employees of their constitutional rights.

Where does the constitution guarantee you a parking spot? Or a job?

It doesn't, and that's not the issue here.
Guns are beyond question an enumerated right, and 'businessmen' are infringing on our right to carry them.

So are property rights.

Gun owners are not infringing on property rights by carrying arms in their vehicles.

Rather than address the real issue, which is a conflict between two rights of two people, you would rather continue to demagogue.

Bull. The real issue is a conflict between two types of people, -- gun owners & those who would 'boss' them. -- 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?

I'd bet they would still throw you out of court.
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.

How does your employees gun in his locked car affect your right to be "secure in our property"? -- Get real..

< 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.

You are free to do business in a 'gun free' country. -- If you don't like our way, you are free to go elsewhere. England would welcome you.

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.

If its "just another possession". why are you banning it?

[tpaine]

Jim Noble claimed

"-- The rights referred to in the Constitution do not exist in transactions between businesses and individuals, --"

Wrong, -- and this judge explains why:

In Plona v. United Parcel Service, 2007, -- 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."

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.

Freedom Calls:
Yes, they can. A non-disclosure agreement -- a condition of many jobs -- asks you to waive your right to speak freely. A government security clearance does the same. A binding arbitration agreement waives your right to a trial by jury.

You have waivered a specific work related right for a compensation. -- Banning guns from employees vehicles is simply an uncompensated infringement of a basic right.

Certain jobs require you to submit to a search without a warrant to access the workspace such as airline pilot. And so forth.

Reasonable regulations in the workplace are understandable. -- What 'reason' is behind the banning of guns in parking lots? -- Only Ms Brady knows.

[marktwain]

"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."

Your actions are to be commended. Thank God for patriots and freedom fighters such as you. That is why we are winning. I have stood up for the right to be armed many times. I was once demoted because of it, and it took several years to get promoted back to where I had been. I lost tens of thousands of dollars, but I won a significant victory. It was worth it.

[KrisKrinkle]

"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."

Apparently it's not all that clear.

"Simply put, business property rights do not trump the Constitution or the law."

Some might argue that businesses don't have rights, property or otherwise, anymore than governments have rights and there are some on FR who argue that governments have powers not rights.  In any case, businesses don't do anything on their own.  They are artificial constructs, which can be considered a form of property and are owned and operated by people.  At bottom it's a matter of the rights of some people against the rights of other people. That at least one set of people owns a business is not necessarily central.

"Nor can employers require you to waive your protected rights."

If true that would mean an employer could not require a level of silence (total or about certain subjects) even if work conditions required it.  On the other hand, I can't think of a reason to include in such a requirement a prohibition on calling for an ambulance in the event of a heart attack.

This article appeals to the emotions, but that's about it.

[KrisKrinkle]

"My right to free speech is seriously curtailed while I'm at work."

I don't think your analogy works. Your natural right to speak may be curtailed at work (rightly so if such speech interfers with the work) but it's not eliminated. For instance you still have a right to say "Don't! Stop!" if someone gets sexually frisky. You can even put the first exclamation point beside the second if so inclined. But that "curtailment" ends when you leave work to go home or elsewhere. That "curtailment" does not extend beyond the workplace.

[KrisKrinkle]

"...all men...are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men..."

So say the Founders.

"...if you are in somebody's business, their rules trump your rights..."

So say some other people.

Whose words have more credibility?

[KrisKrinkle]

"Guns don't kill -- people do."

"Pornography doesn't rape people -- people do"

And for clarity:

Businesses don't restrict rights -- people (who own businesses) do.

It's important to remember that the problem may not reside at the local property but with an owner who lives a thousand miles away in Chicago where he supports Mayor Daley and all Daley stands for, and claims an ability to restrict the rights of others in communities around the nation because he owns a few square feet of real estate in each such community.

Governments don't restrict rights -- people do.

I just threw that in because so many conservatives are like anti-gunners who blame guns (the tools) instead of the people who operate the tools. Too many Conservatives blame Government (the tool) instead of the people who operate the tool. Conservatives need to stop blaming the tool, and take it for their own to use as they would any dangerous tool -- safely, as intended, without harm to themselves or others.

[Zon]

Businesses don't restrict rights -- people (who own businesses) do.

No person has the right to enter another person's property.  That's the principle that falsifies your premise. No person's rights were restricted. That's all that need be said.

But since you came out to play...

Freedom of association is the root of objective law in society. It takes two people to mutually agree to associate with one another. It takes just one person to refuse to associate with another person -- just say "no". Only when freedom of association is violated does a person have probable need to defend themselves -- such as a business owner defending his business/property against a person that violates store policy/rules.

Ignorance proclaims that an equal man at home becomes a second-class citizen when he goes to his store/business. Or does it include that a person in their home can't make his own gun rules/policy?

Governments don't restrict rights -- people do.

I often use the phrase, "politicians and bureaucrats" rather than "government", when making reference. It differentiates from people. Sometimes I just go with "parasitical elites in government".

[green iguana]

BFOQ - if you don't know what it means, Google it.

[archy]

2) Are you prepared to incur potential liability if anything should occur as a result of your restrictive policies?

It gets just a LITTLE heavier than that. Remember that the federal government has pursued prosecutions of civil rights violations thatr occurred as much as 40 years in the past. And this is the law NOW:

United States Code, U.S. Criminal Code,
Title 18, Part I, Chapter 13, Section 242:

§ 242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

[archy]

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.

Let's say that the employer does not choose to employ Jewish folks, or ones whose skin is darker than his own.

[archy]

My right to free speech is seriously curtailed while I'm at work. I could go to the mall and use abusive language or bad-mouth my company's products. Can't do that at work and remain employed. It's that simple.

And if your employer tells you to kill another employee, do you obey that illegal order and do so?

[Dilbert56]

Not analagous. When I agreed to work for my employer I agreed to follow rules that are more restrictive than what I can do outside of work. That's a legal contract. Telling me to do something illegal is outside the bounds of the contract. I don't think you can even include something illegal in a valid contract.

[archy]

In Plona v. United Parcel Service, 2007 (U.S. District Court, N.D. Ohio),

United States Court of Appeals for the Sixth Circuit

Current composition of the court

As of Susan Bieke Neilson's death on January 25, 2006, the judges on the court are:

#	Title	Judge	Duty station	Born	Term of service			Appointed by
					Active	Chief	Senior
49	Chief Judge	Danny Julian Boggs	Louisville, KY	1944	1986–present	2003–present	—	Reagan
40	Circuit Judge	Boyce F. Martin, Jr.	Louisville, KY	1935	1979–present	1996–2003	—	Carter
53	Circuit Judge	Alice M. Batchelder	Medina, OH	1944	1991–present	—	—	G.H.W. Bush
54	Circuit Judge	Martha Craig Daughtrey	Nashville, TN	1942	1993–present	—	—	Clinton
55	Circuit Judge	Karen Nelson Moore	Cleveland, OH	1948	1995–present	—	—	Clinton
56	Circuit Judge	R. Guy Cole, Jr.	Columbus, OH	1951	1995–present	—	—	Clinton
57	Circuit Judge	Eric L. Clay	Detroit, MI	1948	1997–present	—	—	Clinton
58	Circuit Judge	Ronald Lee Gilman	Memphis, TN	1942	1997–present	—	—	Clinton
59	Circuit Judge	Julia Smith Gibbons	Memphis, TN	1950	2002–present	—	—	G.W. Bush
60	Circuit Judge	John M. Rogers	Lexington, KY	1948	2002–present	—	—	G.W. Bush
61	Circuit Judge	Jeffrey S. Sutton	Columbus, OH	1960	2003–present	—	—	G.W. Bush
62	Circuit Judge	Deborah L. Cook	Akron, OH	1952	2003–present	—	—	G.W. Bush
63	Circuit Judge	David W. McKeague	Lansing, MI	1946	2005–present	—	—	G.W. Bush
64	Circuit Judge	Richard Allen Griffin	Traverse City, MI	1952	2005–present	—	—	G.W. Bush
—	Circuit Judge	(vacant - seat 5)	(n/a)	(n/a)	(n/a)	(n/a)	(n/a)	(n/a)
—	Circuit Judge	(vacant - seat 10)	(n/a)	(n/a)	(n/a)	(n/a)	(n/a)	(n/a)

[archy]

Telling me to do something illegal is outside the bounds of the contract. I don't think you can even include something illegal in a valid contract.

Correct. Now read post #74, above.

[LexBaird]

Let's say that the employer does not choose to employ Jewish folks, or ones whose skin is darker than his own.

Like, for example, the Catholic Arch Diocese of New York, or Steven Spielberg casting Nazis in "Schindler's List"?

I do not believe the Constitution grants the Government the authority to regulate who a private citizen hires or associates with, nor to support members of a particular sect or race; it forbids the Government from doing so. By extension, the Government cannot contract out to businesses which have such practices.

Of course, I am also free to not seek employment with or to patronize businesses with bigoted practices. I'll decide if some store deserves my money, and thank the Govt. to stay out of it.