Oklahoma & Parking Lot Gun Bans

Oklahoma & Parking Lot Gun Bans

A bit more than a year ago, I mentioned that Oklahoma had passed a law that allowed employees to have a loaded firearm in their car in the parking lot regardless of employer rules. This was in response to an employer that searched employee cars at the start of hunting season, and fired a number of them. The employer sued to have the law overturned--and at federal district court, a judge not only ruled that the employer could do so, in spite of the new law--but even suggested that an employer was required to enforce such rules in the parking lot, to comply with OSHA.

Wiser heads have prevailed on appeal. Arms and the Law provides a link to the decision, which is here. Not surprisingly, America's biggest corporations, lapdogs for the left, filed suit against the Oklahoma law, claiming that OSHA required them to have such rules in the interests of employee safety. The Tenth Circuit's decision points out that while the federal government has put out some policies encouraging workplace regulation of firearms for some industries, they are not mandatory, and therefore the district court judge's decision was wrong. OSHA doesn't require employers to ban guns in the parking lot:

In fact, OSHA declined a request to promulgate a standard banning firearms from the workplace. See Standards Interpretations Letter, September 13, 2006, available at 2006 WL 4093048. In declining this request, OSHA stressed reliance on its voluntary guidelines and deference “to other federal, state, and local law enforcement agencies to regulate workplace homicides.”

Even more interesting is how they dealt with the question of property rights. I confess that I have some serious concerns about such laws (even though I think that employers with such parking lot gun prohibition rules are making a serious mistake) because I do support the right of property owners to control their own property. The Tenth Circuit decision, however, decided that based on existing precedents, the interference with property rights was really not severe enough to qualify as a "taking." They also pointed to Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), a decision that I have long regarded with horror. In that case, a group that wanted to use the shopping center to circulate petitions was told to leave, because the mall was private property. The Tenth Circuit decided that if the First Amendment allowed intrusion on private property rights in that case, the same was true with respect to other amendments:

In addition to the [state law prohibiting such bans] purpose of increasing safety, one could argue that the [state law prohibiting such bans] are simply meant to expand (or secure) the Second Amendment right to bear arms. See Pruneyard, 447 U.S. at 81 (noting that the state may exercise its police power to adopt individual liberties more expansive than those conferred by the Federal Constitution).

As much as I dislike Pruneyard's logic, there is a certain Schadenfreude in seeing a quintessentially liberal decision like Pruneyard used to protect the right to keep and bear arms!

Another interesting aspect of the decision is the question of whether the state law meets the rational basis standard. For those who don't spend their time reading books about constitutional law, the courts have created (largely pulled from where the sun doesn't shine) a series of levels of scrutiny for deciding whether a particular law violates a constitutional right. The lowest level is called "rational basis" and basically means that for the Court to strike down a law for being unconstitutional, the legislature has to be provably insane or lying when they say that the law serves a legitimate governmental purpose. In this case, the Tenth Circuit's decision pointed to the existence of the debate as proving that there was a rational basis for the law:

One professed purpose of the Amendments is the protection of the broader Oklahoma community. We need not decide the long-running debate as to whether allowing individuals to carry firearms enhances or diminishes the overall safety of the community. The very fact that this question is so hotly debated, however, is evidence enough that a rational basis exists for the Amendments.

Oh, and did you notice? The Second Amendment--an individual right! And it's nice to be able to say that I played a part in making that happen!