18 U.S.C. § 922(h) provides that “It shall be unlawful for any individual, who to that individual’s knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment” to possess a gun. (It also requires a supposed connection to interstate or foreign commerce, but that’s almost always satisfied.) Subsection (g) bars gun possession by, among others, felons, fugitives from justice, illegal aliens, violent misdemeanants, and people under domestic restraining orders. But it also covers people admitted to the U.S. under a nonimmigrant visa — for instance, foreign rock stars or businessmen who visit for work — as well as unlawful users of controlled substances and people who have “been committed to a mental institution.”
So say that a foreign rock star, or an American rock star who you know uses drugs, or some rich or famous person who has been in a mental institution, or for that matter some rich or famous person who is under a domestic restraining order wants you to be his armed bodyguard. Assume that you would otherwise be legally allowed to be armed, and to be a bodyguard. What do you have to do to avoid violating § 922(h)?
Would it suffice for you to go to work for a bodyguard agency that assigns you to protect the person, or would you still be “employed for” that person (emphasis added)? [Sentence added:] Or what if you work for the rock star’s managers, but you go where the rock star goes and follow ordinary day-to-day instructions from the rock star; are you still “employed for” that person even if you aren’t formally employed by the person?
What if you are working as a security guard or a bodyguard for a corporation that is solely owned by a foreigner who is in the country on a nonimmigrant visa, or by someone who has been in a mental institution, or by someone who is subject to a domestic restraining order. Are you then “employed for” the owner, or are you not treated that way because you’re just employed by the owner’s corporation?
I understand the value of the statute in prosecutions of members of organized criminal gangs; the government has been using it to prosecute members of the Pagans Motorcycle Club, who were apparently employed by the PMC’s “national vice-president,” a convicted felon (though of course, if there’s enough evidence, those people could be prosecuted for their other crimes and for conspiracy to commit crimes). I just wonder to what extent it also precludes much more innocent — and valuable — arrangements as well.
Roger McCandypants says:
Prosecutors: “Don’t worry. We’re great people who always exercise our discretion reasonably and fairly.”
July 13, 2010, 4:28 pmKharn says:
ATF has busted UN bodyguards in NYC for unregistered machine guns when they were caught off the compound. I forget the resolution, but I bet new body guards with more weapons under diplomatic seal were on a plane to NYC later that week.
July 13, 2010, 4:31 pmSt. Aquinas says:
whoa… never read it that carefully before. I didn’t realize, and I would bet most armed security doesn’t realize, that not only can’t people as described in 922(g) poses a firearm… they can’t hire someone else to carry one either? even a fully certified and licensed bodyguard?
Hell, it gets better… anyone who is a bodyguard or armed security guard , or even just carries their own personal weapon while working for someone who:
– has a medical marijuana card
– is attending treatment for addiction to an illegal drug
– has ever had been in a mental institution
– has ever been convicted of DV
– has a restraining order against them
– has ever been convicted of a felony
The fact that is covers employees/contractors/etc for any of those people makes it amazingly broad. In fact, under the Heller/McDonald rulings, it would seem even more problematic, since you would be affecting an individual right of the employee.
July 13, 2010, 4:33 pmcboldt says:
– What do you have to do to avoid violating S: 922(h)? –
July 13, 2010, 4:33 pmLaw enforcement, whether on or off duty, is exempted. See Section 925(a)(1) of Title 18, and remarks at section 1116 of the DOJ Criminal Resource Manual.
Otherwise, this seems to be a handy prosecutorial cudgel to apply selectively.
Adam Berkowicz says:
I can’t speak for all of the titles you listed, but when it comes to working for rock stars, this can easily be bypassed by technically working with the band’s management.
July 13, 2010, 4:37 pmwfjag says:
Do you really want Charlie Sheen, or Mel Gibson, or someone who would work for either of them, to carry a gun?
July 13, 2010, 4:38 pmSt. Aquinas says:
Someone who works for one of them? I would have no problem with it. Hell, I’d have no problem with them carrying either, but I’m radical that way; and I’d make sure their spouses had guns as well.
Here is an interesting conundrum though…
July 13, 2010, 4:49 pmSince corporations are treated as people, is it illegal to work as an armed security guard for a corporation that has been convicted of a felony?
Roger McCandypants says:
The federal government wants us to know that people who were ever in mental institutions don’t deserve to be protected.
July 13, 2010, 5:07 pmAnonymous says:
I have a question. Regarding someone who was in a mental institution, would this restriction be for life? It certainly reads that way to me.
If so, would it stand up to judicial scrutiny? It seems they could very well take away your rights for a lifetime based upon a few days in an institution that happened twenty plus years ago, with nothing like it happening since.
Also, assume said institutionalization happened in a state where such matters are routinely handled in the juvenile courts? The juvenile court records are automatically sealed, and possibly automatically expunged after a certain amount of time.
July 13, 2010, 5:10 pmSt. Aquinas says:
Since the statute says “adjudicated” I would think it you would actually have to be committed – not just an observational hold. Even still, you can be committed much easier than you could be convicted of a crime.
Anyone have a more accurate idea of what it takes to satisfy the “adjudicated” part?
July 13, 2010, 5:15 pmcboldt says:
– Regarding someone who was in a mental institution, would this restriction be for life? –
July 13, 2010, 5:17 pmThe operative language is “who has been adjudicated as a mental defective or who has been committed to a mental institution,” which is a subset of all who have been in a mental institution.
However, we have learned that Congress can change the law, and make it so just being a patient is sufficient. E.g., ever sign up for dry-up? Banned from the RKBA. This can, of course, be applied retroactively. I think the safe assumption is that any reach-out for help put one at risk of losing the right to keep and bear arms.
Yes, the ban is a lifetime ban.
cboldt says:
– Anyone have a more accurate idea of what it takes to satisfy the “adjudicated” part? –
July 13, 2010, 5:21 pmThat just means a judge has to make the finding of “mental defect.”
Glen says:
Yep, this is the kind of stuff that passes Congress (and state legislatures) on virtually unanimous votes. One would hope now that a fundamental right is involved there would be more “debate.””
July 13, 2010, 5:31 pmPeteP says:
And if so employed, assuming that you as a private individual have a legal firearm, and your own personal legal CCW permit, what exactly happened to YOUR rights, that they disappeared when you went to work ??? You lost your 2nd amendent ( and state CCW ) rights because of who your employer is ???
July 13, 2010, 5:39 pmCassandra says:
The first sentence of the post:
18 U.S.C. § 922(h) provides that “It shall be unlawful for any individual, who to that individual’s knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment” to possess a gun.
must be written using some kind of descriptivist grammar, because it makes no sense.
July 13, 2010, 5:42 pmcboldt says:
– You lost your 2nd amendent ( and state CCW ) rights because of who your employer is ??? –
July 13, 2010, 5:49 pmYou are committing a felony, which, if charged, can result in 10 years imprisonment. Either be exempt, or don’t take the assignment.
Roger McCandypants says:
That can’t be the right result. Rights would be worthless if they could be stripped by simply making their otherwise permissible exercise a felony.
July 13, 2010, 5:52 pmcboldt says:
– Rights would be worthless if they could be stripped by simply making their otherwise permissible exercise a felony. –
July 13, 2010, 6:03 pmThe question is what actions mark the “otherwise permissible” line.
I would wager that the way this broad statute is handled in practice is “prosecutorial discretion.” The offense comes out when the prosecutor feels like it, most offenses are overlooked. Either that, or off duty cops are using the law as a marketing tool – they are exempt.
Chem_Geek says:
Well, heck, this is even an employer who wants an armed employee.
July 13, 2010, 6:05 pmMost of us have to choose between exercising our rights and receiving our paycheck. I’m sure it’s happened that people have been fired for having an Obama/Biden (or McCain/Palin) bumpersticker on their personal commuting vehicle…and we all know about the employers who search employees’ commuting vehicles on opening day of hunting season…
Bruce says:
The BG’s work for an AGENCY – not the protectee – so none of this makes any difference at all. Were they hired as “personal” BG’s by the celebrity as an “employee” … different story.
July 13, 2010, 6:06 pmSt. Aquinas says:
That is not always true by a long shot. Anyway, as has been pointed out, the statute says “employed for” not “employed by”.
July 13, 2010, 6:09 pmwfjag says:
P [eople]
A [gainst]
G [oodness]
A [nd]
N [ormalcy]
as in Hanks & Akyrod, Dragnet the movie?
Actually, St. Aquinas, esentially, I agree with you. In addtion to believing that the 2d Amendment means what it says, and was intended to ensure that all able-bodied persons were available and armed to serve whenever local officials called upon them, it’s amazing how polite people are when there’s a significant possibility that the person being spoken to is armed and able to defend him or herself. Granted, that may not be true when dealing with drunks who have an affinity for falling off the wagon, like Sheen and Gibson. However, perhaps acting like an ass should be allowed to carry consequences. Still, in order for them to face the consequences of their behavior, prohibiting them from hiring armed body-guards isn’t such a bad idea.
July 13, 2010, 6:18 pmOrenWithAnE says:
I’m confused, everything that is a felony is “otherwise permissible”.
If you live in AK you have the right to CCW.
You also have the right to visit the local bar and have a drink.
It is not, however, permissible to do both concurrently.
This logic is repeated in every instance in which the legislature defines crimes with multiple components. It is legal to give money a hooker, it is legal to have sex with a hooker; it’s not legal to do both of those “otherwise permissible” activities at the same time.
July 13, 2010, 6:33 pmSt. Aquinas says:
offtopic, but makes me wonder what time period the courts would consider long enough between the two events to make them unconnected. a month? 3 months? could you just pay a year in advance? *grin*
July 13, 2010, 6:35 pmDuffy Pratt says:
It’s going to depend on what “being employed for” means within the context of this statute. It’s not clear to me that hiring a bodyguard through an agency would be enough. I hate to say it, but my guess is that the question would be very factual and not subject to bright lines. If this seems odd, just think of how hard it is to distinguish between an employee and an independent contractor under the tax code.
Suppose in one case that an ex-felon, drug addled rock star creates a shell corporation that he solely owns, and that corporation hires the BG. Is the BG employed by the rock star? Probably so. But if the rock star gets hired by a management company to play at a concert, and that same management hires security for the star while he’s in town? Probably not. But what about the millions of other business relationships that might end up with the BG at the side of the star? It’s going to depend.
Is this really a problem? Or is this just another hypothetical to get people worked up over the violation of rights that haven’t actually been violated yet. (The passage of a statute, by itself, doesn’t violate anyone’s right to do anything.)
July 13, 2010, 6:42 pmSt. Aquinas says:
It may not violate it, but it does infringe upon it, since as long as a law is on the books, you can be arrested and charged – and that possibility will limit a “normal” person’s behavior.
July 13, 2010, 6:46 pmG.R. Mead says:
At early law, the usual penalty for felony was death — the lesser penalty was outlawry, and later trasnportation under pain of death to return. In terms of outlawry (which is what this harks back to) — it simply makes it unlawful for a felon to defend himself with a firearm –OR FOR ANYONE ELSE SO TO DEFEND HIM.
In that light it is perfectly sensible — though perhaps overly broad in its disabling condition — it simply makes the price of being a bodyguard for a convicted felon the surrender of your own right of armed defense — further discouraging the protection of felons from physical disdain or social abuses — completely consistent with the penalty of outlawry.
July 13, 2010, 7:08 pmOrenWithAnE says:
The essential element of the charge is a quid-pro-quo: the money has to be exchanged for sex. The only relevance of any time between the events is evidentiary — that is, what does the jury require to show the transaction.
And it’s not offtopic, it utterly obliterates any bizarre pretension that the legislature cannot criminalize the concurrent commission of two “otherwise permissible” activities.
July 13, 2010, 7:25 pmSt. Aquinas says:
Actually, it really doesn’t, since there is no such thing as a federal law against prostitution (afaik). As well, and more seriously, the argument is when that criminalization becomes unconstitutional interference with a protected right.
July 13, 2010, 7:27 pmPeteP says:
GR Mead – I’m not sure exactly WTH that all means, but it’s a pretty nifty citation ;-) I’d like to see someone try it on a judge sometime ;-)
Is that 1911 ( non-Colt type ) book online anywhere ?
July 13, 2010, 7:32 pmmarkm says:
It doesn’t worry me as much as that people who are willing to work for Mayor Daley carry guns – and badges.
July 13, 2010, 8:16 pmAJK says:
On the other hand, I’m quite sure that no federal law makes it felony for people to have Obama/Biden bumperstickers because of their employer’s past.
July 13, 2010, 8:23 pmRoger McCandypants says:
What constitutional rights are you talking about?
July 13, 2010, 8:56 pmDavid Schwartz says:
If it’s the quid pro quo that’s criminal, then this doesn’t show that the legislature can criminalize the concurrent commission of two otherwise permissible activities. It shows the legislature can criminalize a particular relationship between otherwise permissible activities. That relationship is a thing itself — distinct from either action and even distinct from their concurrent commission.
July 13, 2010, 9:03 pmLaura(southernxyl) says:
So instead of faces slapped and teeth broken, we’d have Shootout at the OK Corral. Not seeing the improvement.
July 13, 2010, 9:25 pmBama 1L says:
That doesn’t matter. It says that a conviction in any court counts. That has been held in very similar contexts to mean not only a state-court conviction but foreign ones as well if minimal standards were met.
July 13, 2010, 9:36 pmRicardo says:
I wonder how this affects the case of Ayaan Hirsi Ali. As I recall, she was protected by private security guards in the U.S. I don’t believe she had an immigrant visa at the time yet it seems to have been conscious U.S. policy to provide her a safe haven. If the foreign rock star is guilty of violating the law, Hirsi Ali would have been in technical violation as well. Which is silly, of course. Some high-profile foreigners have come to the U.S. because they are no longer safe from threats in their own countries and require bodyguards.
July 13, 2010, 10:08 pmcboldt says:
– I wonder how this affects the case of Ayaan Hirsi Ali. –
July 13, 2010, 10:31 pmThe prosecutor exercises discretion and looks the other way. The law is intended to be applied selectively.
Thumbcruncher says:
I’m surprised that no one has noted that bodyguards,or celebrity security, and bank guards in heavy gun control areas are usually off duty police. Because of the need to carry a weapon these types of positions require a certification and in many gun control cities like Chicago the law insured the only people who could do that are cops. The Police unions then support gun control because it insures these kind of moonlighting jobs for the Police Union members.
And of course media types, who for various reasons are barred from having a gun can still be protected by Uzi toting bodyguards.
July 13, 2010, 10:32 pmPraetorius says:
You’re right. The NFA and GCA and FOPA are all unconstitutional.
July 13, 2010, 10:42 pmDuffy Pratt says:
You can be arrested and/or charged with or without a law. The possibility of being arrested might limit some normal people’s behavior in some circumstances. But how many normal people even know about a law like this one? Probably very few. How many normal people fall under the prohibited classes in this law? How many normal people go about hiring bodyguards? Any that you know about?
The question still remains: what kind of impact is this law actually having? Is it a real problem, or are people just imagining worst case scenarios in a near vacuum?
July 13, 2010, 10:43 pmPraetorius says:
They also nominally work for someone else…a Corporation, etc. Not the primary.
July 13, 2010, 10:43 pmcboldt says:
– I’m surprised that no one has noted that bodyguards,or celebrity security, and bank guards in heavy gun control areas are usually off duty police. –
July 13, 2010, 10:55 pmI don’t know the statistics, but I alluded to this possibility at #4 (cops, on and off duty, are exempt, so can’t run afoul of the law), and at #19 where I mocked the exemption as giving cops a marketing advantage for such security details.
Michelle Dulak Thomson says:
cboldt,
The prosecutor exercises discretion and looks the other way. The law is intended to be applied selectively.
I don’t know about you, but I’m very uncomfortable with laws so overbroad that the class of violations that would ever conceivably be prosecuted is a small fraction of the things the letter of the law criminalizes. I realize that there are genuine hard cases where literal application of even a carefully-drafted law results in obvious absurdities; there’s a need for prosecutorial discretion. But this is more in the nature of handing the authorities a whopping great blunderbuss and trusting them to use it only on people who deserve it.
July 13, 2010, 10:59 pmOrenWithAnE says:
Is it your position that 18USC922(h) would be permissible as a State law but not a Federal one?
And whether the legislation comports with the relevant constitutional commands is unrelated to whether the activities were otherwise permissible.
That is a serious piece of analysis that is not easily disposed of with Roger’s assertion (5:52) that no crime can have, as an element, a liberty protected by the Constitution.
Possession of a handgun is a Constitutional Right (McDonald) and even moreso under the AK Constitution, which is written in much stronger language.
The possession and use of small amounts of of marijuana is a right under the Alaska Constitution (Noy v. State, AKCA 2003).
Doing both at the same time is criminal and I don’t think you could get anyone to buy the argument that since each is protected in isolation they ought to be protected in conjunction.
Then 18USC922(H) can be recast as criminalizing a relationship (employer-employee) distinct from the act of carrying a gun or being a felon.
Employed by the AEI, no doubt.
July 13, 2010, 11:03 pmThumbcruncher says:
To mock is one thing, to state is another. You suggested the possibility, but I’ve known of this as being the case for a decade. And its not an marketing advantage, its a monopoly.
July 13, 2010, 11:07 pmMatthew Carberry says:
The Privileges and Immunities of American citizens?
I think another example would be: You have the right to loudly shout “fire!”. You have the right (assembly/commerce?) to stand in a crowded theatre not currently on fire. You don’t have the right to do both concurrently without committing a felony.
Interesting factoid based on the precise wording of the applicable Alaska statutes. You can carry an unloaded firearm, concealed or not, into a place that serves alcohol for consumption on the premises. You can be in possession of a firearm, loaded or not, if you are not impaired.
In theory, though I’m not gonna test it in a town of any size, you can carry an unloaded firearm into an Alaskan bar and have a drink or two without breaking any laws.
July 13, 2010, 11:07 pmLou Gots says:
Back to the topic–gasp! This is a pig statute, written by pig prosecutors and their tame congressional flunkies to reach some narrow situation in which they once suffered the embarassment of not being able to do what they wanted.
Armed security guards are closely regulated in most states, with licensing and training requirements. If, say, Michael Corleone wants to hire licensed private armed guards to protect his dad, there is no logical reason why he should not be allowed to do so.
The way the subsection is written, to forbid employment not merely by, but also, for, 922 ineligible persons exposes to vice of the subsection. That we can torture the facts to come up with instances in which the statue might be reasonable applied does not save it.
July 13, 2010, 11:32 pmElliot says:
Was Bill Clinton convicted in his perjury problem with Paula? Felony? Misdeameanor? Something else?
July 13, 2010, 11:44 pmG.R. Mead says:
It means that old patterns always reassert themselves.
Judges hate history that they don’t write.
Non-Colt? What are ya — prejudiced?
Somebody has wikified it: http://www.1911encyclopedia.org/Main_Page
July 13, 2010, 11:46 pmcboldt says:
– Was Bill Clinton convicted in his perjury problem with Paula? –
July 14, 2010, 12:13 amNot charged. http://en.wikipedia.org/wiki/Clinton_v._Jones
disintelligentsia says:
Well, if government can legislate around our rights by creating “zones” for either expression (free speech zones for protest) or restriction (floating free-of-speech bubble zones for people going to abortion providers), why can’t these body guards just create a legal fiction by contract – they’re not protecting the felon drug-addled alien rock star, just a floating moving space about him.
July 14, 2010, 12:18 amRoger McCandypants says:
I don’t think that’s an apt analogy. The law at issue strips one’s RKBA rights because of the existence of an agency relationship. A better analogy would be a law prohibiting you from talking about Glenn Beck while you’re at work.
July 14, 2010, 12:35 amLarryA says:
In Texas a person primarily working security can’t carry with a CHL. The idea is that if you are employed to protect others (or their stuff) you need to be trained and commissioned as a security officer to be armed. You also fall under security officer rules and procedures, not CHL rules. The CHL class doesn’t cover the same subjects. (Like the law under discussion.)
Cynics might also consider it to be commissioned officer employment protection.
July 14, 2010, 12:41 amwhit says:
who cares? the law should not be about what i WANT
i don’t want fat people in spandex or smoking in any private business i frequent.
neither is imo the place of govt. to prohibit.
July 14, 2010, 1:32 amOrenWithAnE says:
A very interesting factoid, one that I was not aware of. Out of curiosity, does Alaska have any definition (such as that in CA) that considers a weapon loaded if the individual has appropriate ammunition “readily accessible”?
I can think of at least 3 reasons off the top of my head.
I don’t think you understand how facial/as-applied challenges work.
July 14, 2010, 1:39 amOrenWithAnE says:
Just like AK strips your right to RKBA because you got high.
Or every State strips your right to engage in consensual sexual relations because of an agency relationship.
Or every State strips you of the right to demonstrate against the government when done concurrently with exercising your right to a jury trial. Or demonstrations inside a polling place.
Or really any one of a thousand different that the syllogism A is legal and B is legal therefore AB is legal is simply not a principle of law.
July 14, 2010, 1:50 amRicardo says:
It’s not clear the language of the statute makes this a meaningful distinction as others have already pointed out. It says “employed for” and not “employed by.” So if the foreign rock star is guilty even if his American promoter is the one who hired security, the same statute would apply to someone like Hirsi Ali regardless of who is paying the bodyguards’ salaries.
But what would apparently save them is if the guards are off-duty cops, as they often are.
On the other hand, there have been instances when police unions have urged their members not to work as security for certain pop artists — mostly rappers but also Bruce Springsteen because of the anti-police lyrics of one of his songs.
July 14, 2010, 2:18 amNew Criminal says:
This is a terribly dangerous law. We need to challenge it! Someone should tell the defense lawyers for the Pagan motorcycle club!
July 14, 2010, 2:44 amAJK says:
I’m not sure I’d agree with you there. The Alaska Constitution copies the language of the Second Amendment, and adds “The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.” I’m not sure that’s any stronger than the principle announced in McDonald.
July 14, 2010, 3:33 amFredosaurus Rex Friday XIII says:
OrenWithAnE, you’re being deliberately dense.
Why should the following scenario be allowed?
I’d love for you to tell me how that passes 2nd Amendment muster.
July 14, 2010, 4:18 amFredosaurus Rex Friday XIII says:
You’re practicing at the shooting range. Your cell phone rings. Caller ID says its your felon-company calling. Can you answer the phone under 18 U.S.C. § 922?
July 14, 2010, 4:23 amBrett Bellmore says:
This is the kind of stuff that passes a Congress a large majority of whose members don’t like that fundamental right. The fact that most of them can’t politically afford to admit that they don’t like it doesn’t stop them from taking every vaguely defensible opportunity they find to attack it.
July 14, 2010, 7:07 amcboldt says:
– This is the kind of stuff that passes a Congress a large majority of whose members don’t like that fundamental right. –
July 14, 2010, 8:07 amThe vast majority of Courts are hostile to the right, as well. That slim majority of the Supreme Court isn’t exactly keen on the right, either. “Miller was convicted, etc.”
Abdul Abulbul Amir says:
A woman working for either of those two in any capacity would except for this law be very prudent in carrying a gun.
July 14, 2010, 8:24 amwfjag says:
Stand not between a man and his quest for a Darwin award.
I’d rather they settle it at the bar instead of getting into their cars while drunk and mad. Pull a gun and the cops are called. Throw a punch and the bouncer throws them out into the parking lot. It is easier for me to avoid going into a bar than to give up all driving.
Perfect example of assumption of a known risk.
July 14, 2010, 9:21 amPraetorius says:
It’s quite a bit stronger than Heller, though – especially the dicta saying that felons cannot be armed.
July 14, 2010, 9:25 ambhaal says:
Why is there a prohibition on legal aliens having weapons at all? A substantial number of foreign nationals holding perfectly valid VISAs are in the U.S. for months at a time (eg from my own experience, a foreign exchange student) but are absolutely prohibited from buying a gun during that time. By contrast, they can drive, even without passing the State’s own driving test, own property, make contracts and are constitutionally entitled to assert every other limitation in the Bill of Rights that a citizen can, except those which relate to discrimination in relation to sensitive government jobs, voting or participation in elections.
So why is your right to self-defence using a firearm abrogated simply because you’re from another country, even after having gone through the stringent checks to get a foreign student VISA? Is there a catch-all national security exception to the Second Amendment?
July 14, 2010, 9:43 amcboldt says:
– Why is there a prohibition on legal aliens having weapons at all? –
July 14, 2010, 10:01 amDo you mean on those legal aliens who are here on nonimmigrant visas? See 922(y)(2) – if the nonimmigrant alien is here to hunt, or obtains a hunting license, then that person may obtain a firearm. There are other exceptions.
cboldt says:
– So why is your right to self-defence using a firearm abrogated simply because you’re from another country, even after having gone through the stringent checks to get a foreign student VISA? –
July 14, 2010, 10:15 amI’d add that I don’t think this apparent contradiction is unique to the USA. See Switzerland and Israel for examples of “gun friendly” regimes that distinguish between citizens, permanent aliens, and alien visitors.
Turn the issue upside down. What about Americans being denied the use of a personal firearm for self defense in the rest of the world, e.g., UK, Australia, Iran, Uganda, China, etc.
OrenWithAnE says:
The prohibition on possession in the course of employment, not possession concurrently with employment in which the possession is incidental to employment.
Yes, and you really need to actually look up the common construction of the words “in the course of” instead of just coming up with scattershot examples.
Yup, the vast 38 Senator majority.
It’s not abrogated, you don’t have the right in the first instance. See CT’s concurrence in judgment.
July 14, 2010, 10:21 amSammy Finkelman says:
There might be some text in a neighboring section that might make that make sense.
If carried too far, this law might not stand up. What they really use it for to get to is when somebody is acting under somebody else’s direction. I think it is called “constructive possession” of a gun.
Obviously in some cases a person might really be following orders, and might even follow orders to shoot someone and in other cases that’s not true at all.
It might matter if the employer TELLS the possesser of the gun to have a gun wih him, or not.
July 14, 2010, 11:51 ambhaal says:
I don’t know about the constitutional jurisprudence of Switzerland and Israel but I don’t know why the fact that some countries discriminate should make it constitutional for the US to do so.
As for the ‘rest of the world’ – there is no reciprocity requirement for other constitutional rights, nor is there any right to have a firearm in self-defence in the countries you’ve named.
If the US attempted to deny a foreign national, arrested in the US for an ‘ordinary’ crime their Miranda rights, their right to a jury trial, to counsel or protection against cruel and unusual punishment does anyone think that such a law would be constitutional? What about if the government could come up with some plausible justification, such as in cases involving the exclusionary rule?
If the US placed heavy content-specific restrictions on freedom of speech, such as selling the Koran to foreign nationals, would it violate the First Amendment or not?
Why is the Second Amendment any different?
July 14, 2010, 12:22 pmcboldt says:
– Why is the Second Amendment any different? –
July 14, 2010, 12:38 pmI’m not entirely unsympathetic to your argument. Heck, I’m a US citizen, and I’m denied the right to a firearm for self defense in quite a few locations in the US.
I hope you enjoyed your visit. Y’all come back now, okay?
Mao says:
I think that there is a much higher level of respect for personal space when the possibility of an armed response is involved.
I would think that would result in fewer broken teeth…
July 14, 2010, 12:45 pmFederale says:
So long as they are employed by a third party, a contract does not make them an employee. That is one of the purposes of using a contracting firm, just like most janitors, they are not employed by whom they clean for, but by a contractor.
In any event, the right to bear arms is held by the bodyguard which would trump 922(h).
July 14, 2010, 1:37 pmSt. Aquinas says:
Did you bother to read the thread? the statute does not say “employed by” – it says “employed for”. There is a large difference, as the term “employed for” under proper english usage, should be read as a much more inclusive set – perhaps think of it as “employed by, on behalf of, or doing work for”.
July 14, 2010, 1:40 pmFredosaurus Rex Friday XIII says:
Your argument is that driving to a work conference is NOT in the course of employment? Your argument is that working FOR YOUR EMPLOYER from home is not in the course of employment?
REALLY? Those are you arguments? Please directly answer instead of snarkily alleging that those scenarios are “scattershot examples.”
And while we’re on “scattershot examples,” what exactly is that supposed to mean in terms of legal consequences? Does “scattershot” mean “wrong”? Enlighten me.
July 14, 2010, 2:28 pmFredosaurus Rex Friday XIII says:
“Employed for” needs a limiting principal. Imagine a common construction project with an owner, a general contractor, subcontractors, and suppliers. Are all of them “employed for” the owner? Unjust enrichment and lien law will often say that is the case.
But that seems like the wrong result in the gun context. The employer’s control over the employee seems like the more important issue. But that leads to all sorts of bad results when the employee is nowhere near the employer (e.g., you can’t possess a gun when you telecommute from home).
July 14, 2010, 2:41 pmFederal Farmer says:
Since the right pre-dates our Constitution and is mentioned in the DoI as stemming from our CREATOR (God or Nature, whichever floats your boat) I don’t see how we can deny the right to non-citizens.
July 14, 2010, 3:08 pmOrenWithAnE says:
Since the RKBA was created, whole cloth, by the Constitution, I don’t see why the Framers could not chose to parcel it out however they please.
[ See, it's really easy to just state a position. You stated yours, I've stated mine. We didn't get anywhere of course. ]
That is correct. It is possession incidental to the course of employment. In order for possession to be in the course of employment there would have to be some logical factor relating the possession to the employment.
For instance, you might note that the title of this thread is about bodyguards. For a bodyguard, possession of a gun concurrent to employment is not incidental but rather it is part of the job.
You seem to have a problem with the concept that “in the course of” is a legal term of art whose meaning is not semantically equivalent to “concurrently”. Please look up the caselaw explaining how the term is normally constructed.
What I mean is that you posit a large number of seemingly random hypotheticals instead of addressing head-on the question of what it means to possess a firearm in the course of employment (as distinct from, say, possessing a firearm concurrent to employment).
July 14, 2010, 3:31 pmFederal Farmer says:
It is true that they created the RKBA, but it recognized the existence of a pre-existing fundamental right to self-defense that is expressed very eloquently in the DoI and is actually the main justification for the existence of government.
July 14, 2010, 3:43 pmDoc Merlin says:
By substantive due process we shouldn’t be able to prevent foreigners from owning arms.
July 14, 2010, 3:46 pmHowever if incorporation is by privileges and immunities in the 14th amendment, we should.
OrenWithAnE says:
The DOI is a political, not legal document. The rhetoric used to convince other European nations of our cause is largely irrelevant to the structure of our government.
I would say, of course, that denying foreigners the common law defense of self-defense (against, say, a charge of assault or battery against an assailant) would violate SDP. But the common law of self-defense is not coterminous with the RKBA as envisioned by the 2A.
Doc, on the merits of incorporating the 2A against the States as pertaining to a foreigner the vote is 4:5.
July 14, 2010, 3:49 pmFederal Farmer says:
Is an Equal Protection claim enforceable for a P+I? I would think so.
July 14, 2010, 3:52 pmFederal Farmer says:
I know it isn’t a legally enforcable document, but it informs us of the intent and in fact then entire reason for the formation of any government.
I guess they had higher expectations of us since they seemed to find it “self-evident”.
July 14, 2010, 3:53 pmMatthew Carberry says:
Oren,
I can’t find any case law on “loaded”. Given how Alaskan state courts read the law in general I’d be willing to risk a jail sentence that if the rounds are not physically in the weapon it is not a “loaded weapon” under any sort of common understanding. They aren’t going to play semantic games about proximity like California.
I think you have the distinction right on the employment nexus. Being armed because of and in the the course of a job, not merely being armed and having a particular job.
I don’t think RKBA would be impacted in that regard, there’s no “right” to hold a particular job. If you don’t like the rules about guns, either the law or the employer’s restrictions, don’t work there.
I go back and forth on the guns in parking lots tension due to the reasonability of being able to defend yourself to and from work and the minimal impact on the employer in their publically accessible lot; but I agree, as in the other thread, that a private (vice government) employer or business owner should definitely be able to restrict possession inside their property and I can just choose not to go or work there. Government though should have much less freedom to bar access to the armed public in generally accessible areas.
July 14, 2010, 3:55 pmcboldt says:
– The DOI is a political, not legal document. –
July 14, 2010, 4:00 pmWhat about Supreme Court cases?
Doc Merlin says:
They aren’t actually people, they are groups of people. You could still technically be in trouble if your majority stock holder or a board member was convicted of a felony.
July 14, 2010, 4:02 pmDoc Merlin says:
They aren’t actually people, they are groups of people. You could still technically be in trouble if your majority stock holder or a board member was convicted of a felony.
July 14, 2010, 4:02 pmOrenWithAnE says:
No, it was a convenient rhetorical device to claim is was self-evident. Whenever a lawyer or politician says something is evident, obvious or clear that is usually good sign that it is actually a rather controversial statement.
The DOI occupies the same status as press releases and marketing campaigns — it is a document intended to persuade others, not to define clearly.
I don’t know that it’s a semantic game. Consider, for instance, an unloaded shotgun with a few shells on the stock . I think most reasonable people would consider that the functional equivalent of a loaded gun under some conditions. I would not find it unreasonable for a legislature to deem that an individual carrying that “unloaded” shotgun should not be drinking at a bar.
It would behoove the legislature, of course, to make as clear as possible what is covered and what isn’t.
Which is why the thread was about bodyguards and not telecommuters or conferences.
Eh, I’m willing to accept the “government as landlord” distinction where it’s appropriate. So a government office building can be run under the same rules as a private office building but a National Forest (or similar) cannot.
July 14, 2010, 4:08 pmOrenWithAnE says:
It’s hard to find phrases such as these that are so clearly in conflict with hard fact. Travel to Singapore and you will clearly find that you have no RKBA.
July 14, 2010, 4:10 pmcboldt says:
– It’s hard to find phrases such as these that are so clearly in conflict with hard fact. Travel to Singapore and you will clearly find that you have no RKBA. –
July 14, 2010, 4:22 pmAre Supreme Court cases legal documents?
Nevermind. I’m tired of you.
Federal Farmer says:
We, rightly, don’t run things in Singapore. This is a non-sequitor.
July 14, 2010, 4:28 pmOrenWithAnE says:
And hence the RKBA is dependent on the fact that we are running things. It comes into being from existence of a particular form of government.
Yes. And when reading them, what counts is not the isolated statements here and there but the doctrine underlying the various decisions.
July 14, 2010, 4:41 pmFederal Farmer says:
Nonsense. Of course the RKBA is American only. However, the underlying right recognized, the right of self-defense, is a natural right not dependent upon any government. Of course Singapore might not recognize the right, but it exists nonetheless.
July 14, 2010, 4:47 pmcboldt says:
– However, the underlying right recognized, the right of self-defense, is a natural right not dependent upon any government. –
July 14, 2010, 5:10 pmThe argument just goes in circles when one tries to separate an individual right from how a government approaches, interacts with, enforces, and abrogates that right.
The Courts have been inconsistent in how they approach the individual RKBA, so both sides of “which comes first, the government or the right?” can appear to argue from authority. Pick either Heller or McDonald (not that this case states an answer to “which came first, the RKBA or the US government?” question) and you’ll find arguments on both sides of just about every issue. Heck, the dissent in Heller even claims it finds an individual right, while simultaneous saying the only individuals who have it are those in a state or federal organized militia.
I also think it’s nuts to engage in serious argument with a person who asserts, with a straight face, that most reasonable people will agree an unloaded shotgun with shells on the stock is a loaded shotgun.
Anym_Avey says:
Interestingly, I would think it’s nuts to engage in serious argument with a person who asserts, with a straight face, that a weapon and an accessible store of compatible live ammunition located within its own confines is not reasonably a “loaded weapon” for purposes of interpreting legal statute.
July 14, 2010, 8:47 pmMatthew Carberry says:
Loaded doesn’t mean “handy” or “attached to the firearm” it means in a firing position in the firearm.
That’s been the definition in shooting, military and civilian, since the 16th Century.
If you want controlling authority in the US (and most countries of which I’m aware) it’d be the military.
Having rounds in a magazine or belt, inserted into the weapon but not chambered, is loaded. A full magazine or belt even in your hand, ready to be put into the well or feed tray, is not. Civilian practice in the US for the shooting sports, hunting, etc are identical.
Even California allows a full magazine on the belt right next to an empty weapon.
I’m pretty sure any and all English dictionaries would say much the same, so upon what authority or rationale are you basing your opinion?
July 14, 2010, 9:05 pmcboldt says:
– a weapon and an accessible store of compatible live ammunition located within its own confines is not reasonably a “loaded weapon” for purposes of interpreting legal statute. –
July 14, 2010, 9:13 pmStart with “unloaded weapon” Is the weapon loaded, or unloaded?
Now add ammunition in the next room. No change to the weapon. Is the weapon loaded, or unloaded?
Now move the ammunition from the next room, to your pocket. You are still holding the unloaded weapon. Is the weapon loaded, or unloaded?
Now move the ammunition from your pocket, and secure it to the outside of the weapon with an elastic band, velcro or something. You are now holding the unloaded weapon with some ammunition attached to the outside. Is the weapon loaded, or unloaded?
For what it’s worth, some people will say the unloaded weapon is loaded when the ammunition is in the next room. My remark is that MOST people will not agree, when the premise of the question includes “the weapon is unloaded …”, and the question is “Is the weapon loaded?”
cboldt says:
– I would think it’s nuts to engage in serious argument with a person who asserts, with a straight face, that a [unloaded] weapon and an accessible store of compatible live ammunition located within its own confines is not reasonably a “loaded weapon” for purposes of interpreting legal statute. –
July 14, 2010, 10:24 pmIn addition to the dictionary definition issue (that is, most people agree perfectly on the difference between “loaded” and “unloaded”), this nut (referring to myself, not to you) sees a notice infirmity, if an unloaded weapon is converted into a loaded weapon in the course of interpreting a statute and charging a crime.
David Newton says:
Unless it is defined elsewhere in the legislation the word “unloaded” has its dictionary meaning assumed by courts when interpreting the legislation. According to Dictionary.com unloaded in the context of a firearm means, “To remove the charge from (a firearm).” Again according to Dictionary.com charge in the context of a firearm means, “To load (a gun or other firearm) with a quantity of explosive.”
The only place in modern firearms that explosives are is in the cartridge. Consequently only if a cartridge is physically inserted into a firearm is that firearm loaded. In older firearms the firearm is only loaded if powder has been placed in the barrel.
Consequently unless the statute explicitly defines “loaded” as including having cartridges immediately accessible as well as physically inside the firearm then having a magazine taped to the side of a firearm does not count as having that firearm loaded for the purposes of the statute. Anym_Avey needs a serious amount of legal education judging by that post.
In another area of law there is Fisher v Bell decided by the English Court of Appeal. See that case for an illustration of why exact definitions in statutes are so important.
July 15, 2010, 6:36 amOrenWithAnE says:
I have a hard time finding a real distinction between a right that doesn’t exist (but maybe should) and one that does exist but isn’t actually recognized. It’s a funny kind of existence that — not being anywhere or having any effect on anything.
The term “loaded” can have a different meaning in a statute than it does in normal parlance. This is why statutes have long-winded sections defining the terms as the legislature wishes.
California Penal Code Section 12031(6)(G):
Or CPC12001(j).
Seems crystal clear to me.
Which is why the CA Penal Code does, in fact, define precisely what the legislature intends to denote.
Getting bogged down in the semantics of this is silly. Law is a context-free grammar. You can replace the word “loaded” with the word “renoodified” everywhere in the statute and it still reads fine. “A firearm shall be deemed renoodified …”, “It shall be a crime to carry a renoodified firearm ….”.
July 15, 2010, 9:09 amcboldt says:
– The term “loaded” can have a different meaning in a statute than it does in normal parlance. –
July 15, 2010, 9:50 amNo argument, and appreciate the reproduction of CA statute.
I stand by my contention. MOST reasonable people will not agree “shotgun with shells attached to the stock” is “a functional equivalent of a loaded gun under some conditions.”
And I stand by my contention that serious argument with you is unnecessarily tedious, on account of your “style.”
OrenWithAnE says:
To this I can only add that the various sections of the CPC do not even agree with themselves as to whether this is loaded. See, e.g. People v. Clark [PDF] using the regular (dictionary) definition because the statute in question did not define loaded.
July 15, 2010, 9:56 amBig bill says:
OK, OK, so we DON’T give guns to the wives. Problem solved!
July 15, 2010, 10:39 amcboldt says:
– People v. Clark using the regular (dictionary) definition because the statute in question did not define loaded. –
That case also discusses “loaded” as defined in California Penal Code Section 12031(6)(G), which you referenced above. In other words, People v. Clark isn’t just a “no statutory definition vs. dictionary definition,” it is also “shotgun with rounds in a buttstock storage compartment vs. ‘loaded’ as defined the penal code.”
Feeding the perception that legislatures and courts defy common sense and good judgment, the Court discusses another statutory definition, not applicable here, “that a firearm was loaded if the firearm and unexpended ammunition were in the immediate possession of the same person.”
July 15, 2010, 11:02 amOrenWithAnE says:
Agreed entirely. The art of legislating clearly is in severe disrepair.
[ Of course, I would not object on policy grounds if CA consistently adopted a 'constructive possession' or 'readily accessible' definition of loaded. That they should do so clearly and unambiguously is beyond dispute. ]
July 15, 2010, 11:07 amcboldt says:
– I would not object on policy grounds if CA consistently adopted a `constructive possession’ or `readily accessible’ definition of loaded. –
July 15, 2010, 11:27 amI might or might not object on policy grounds. If the risk isn’t supposed to be present, then deny entry to the firearm. See sterile area of airports, for example.
But if the legislature is determined to admit certain “odd” combinations of firearm and ammunition, they can do so without making a weird definition of “loaded.” For example, forbid the loaded firearm, and the unloaded firearm in combination with accessible ammunition. Shift the argument to the word “accessible.” People are used to arguing about what “accessible” means. IOW, “accessible” inherently has a larger gray area – larger than “loaded” does.
OrenWithAnE says:
Seems fairly cosmetic. If, for the purposes of some chapter, “loaded” is used to mean “accessible” then that’s what it means for the purposes of the statute.
I don’t object to the proposed change but definitions are just definitions. The substantive law interests me more than the particular way the legislature phrases it.
July 15, 2010, 3:40 pmSt. Aquinas says:
So of interest is all the recent convictions (via plea deals) of different airlines. In most cases, the plead guilty to felony conspiracy crimes… so armed guards shouldn’t be able to legally work for them?
July 30, 2010, 10:34 pm