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

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).