The Volokh Conspiracy

That turns out to be an important legal question, at least in New York. Here's the text of N.Y. Labor Law § 201-d:

1.... “Political activities” shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group ....

“Recreational activities” shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ....

2.... [I]t shall be unlawful for any employer [to discriminate against an employee or prospective employee] because of ...

[a] an individual’s [legal] political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal statutory bans on politicking by government employees] ... [or]

[b] an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property ....

3. [This section] ... shall not be deemed to protect activity which ... creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest .... [Exceptions related to some government employment, and a minor exception related to private employment, omitted.]

So can a New York employer fire an employee for offensive statements on the employee's blog (assuming the blog doesn't carry any advertising, the employee blogs from home, and the blogger doesn't reveal any trade secrets or confidential information)? The protection for political activities is quite narrow -- general statements on public issues wouldn't qualify, unless they're said in the context of a candidate campaign or fundarising activity for a candidate, party, or advocacy group.

But the protection for recreational activities seems quite broad: It covers a wide range of "lawful, leisure-time activity" (so far blogging qualifies) "for which the employee receives no compensation" (that's why we're assuming there's no advertising) "and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material."

So is blogging "engaged in for recreational purposes," as a sort of "hobb[y]," or the flip side of the "reading and the viewing of" media material? Or is blogging for the purpose of expressing your views something other than recreation -- perhaps a form of ideological advocacy that's deliberately excluded from the narrow "political activities" provision, and thus not meant to be included in the "recreational activities" provision?

No cases that I know of so far on this subject in New York; but it still struck me as an interesting item to air. (I have a problem on the subject in the second edition of my The First Amendment and Related Statutes casebook, and I'm writing the Teacher's Edition discussion of that problem right now.)

after all; and it looks like I erroneously failed to recognize just how likely this was to be an error.

Here's what I wrote on the subject when I first dealt with it last year:

[The] Sex Bias in the U.S. Code [report] was prepared for the Commission by former ACLU lawyer Brenda Feigen-Fasteau, then-professor Ruth Bader Ginsburg, and 15 Columbia Law School students working under their supervision. The reporters went through federal statutes, identified various sex-based classifications and terms, and suggested ways to eliminate them. In the process, here's what the report said on p. 95 about the relevant statu[t]e, 18 U.S.C. § 2032:

Under 18 U.S.C. §§1153 and 2032, it is a crime for a person to have carnal knowledge of a female not his wife who has not reached 16 years of age. "Rape" is defined [as limited to female victims]. . . . The "statutory rape" offense is defined in these sections in much the same way: the victim must be a female and the offender a male . . . .

These provisions clearly fail to comply with the equal rights principle. They fail to recognize that women of all ages are not the only targets of sexual assault; men and boys can also be the victims of rape. In the case of statutory rape, the immaturity and vul[n]erability of young people of both sexes could be protected through appropriately drawn, sex-neutral proscriptions. The Model Penal Code and S. 1400 §1633 require a substantial age differental between the offender and victim, thus declaring criminal only those situations in which overbearing or coercion may play a part.

So far, not a proposal to generally lower the age of consent — it's a call for sex-neutral statutes, and for making the statutory rape rules turn on the difference in age between the parties. One can argue against this on various grounds, and it's not clear why the age differential vs. clear cutoff issue is relevant to the "Sex Bias in the U.S. Code" issue. Moreover, S. 1400 §1633 provided (at least in the version that I could find), that "sexual abuse of a minor" (essentially statutory rape) be limited to victims who are under 16, and who are "at least five years younger than" the defendant. This could be criticized, since it would allow 17-year-olds to have sex with 12-year-olds, which many people would treat as child molestation and not just young love. But at least it doesn't make 12-year-olds fair game for adults.

But here's the suggestion [given under the heading "Recommendations"] on p. 102:

18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

Under this proposal, it seems to me that sex with 12-year-olds and older would be legalized in the federal territorial and maritime jurisdiction, regardless of the age of the other party. This wouldn't be a "Romeo-and-Juliet" law aimed at preventing prosecution of young lovers — it would equally be a dirty-old-man-and-Juliet law. And while there are plausible debates about what the age of consent should be, it seems to me that simply lowering it to 12 would be quite a striking and unjustified change.

Now this all happened nearly 30 years ago; but I'm still curious about what was happening here. Am I misreading the proposal? Am I missing some important statutory context, such as other federal statutes that would have banned sex by adults with 12-year-olds even when this statute had been relaxed to allow it?

If I'm not mistaken or reading this out of context, then were many in the late 1970s feminist movement really in favor of lowering the age of consent to 12? Did Justice Ginsburg hold this view? Or was this something that was added by an overzealous student and not caught by her (of course she had the responsibility of checking everything produced by the people she was supervising or even by her coauthor, but mistakes happen)? Might it even have been an inadvertent drafting error? (As to 18 U.S.C. §1153 — which applied to Indian country — the other section mentioned alongside §2032 on p. 95, the report on p. 103 simply suggests that it be changed to the S. 1400, §1633 version.)

On reconsidering the matter, I now think there's very strong evidence that there was indeed an inadvertent drafting error. The error is not, as I thought some had suggested, a reference to "12" instead of "16." Rather, the error is that the report quite likely was intended to quote the Romeo-and-Juliet language from §1633 (the provision it cited in the "Recommendations"), and instead inadvertently quoted the flat-age-12 age-of-consent language from §1631. I think this because the report did indeed cite §1633 in the recommendations; because it had discussed it earlier in the text; because it called for sex-neutralizing the rape definition elsewhere in the Recommendations (see item 1 below); and because the report (as I pointed aut above) suggested that §1153, governing Indian territory, borrow the language from §1633, and there's little reason why it would have a different recognition for §1153 and for §2032, the provision that governs federal enclaves.

Here's what I now think the report was probably intending to recommend:

(1) Elsewhere in the recommendations, the report would have sex-neutralized the definition of rape ("A sex-neutral definition of rape, such as the one set forth in S. 1400 §1631 should be added to Title 18 or Title 10 and referred to throughout for the definition of the offense.").

(2) The recommendation as to "carnal knowledge" was not intended just to sex-neutralize the definition of rape or carnal knowledge, but rather to replace the flat age of consent of 16 with the more complex "Romeo-and-Juliet scheme" (under which sex with under-16-year-olds was legal for people who were less than 5 years older, a misdemeanor for under-21-year-olds who were more than 5 years older than the victim, and a felony punishable by at most 3 years in prison for adults). This is consistent with the earlier discussion in the report, where the report praises Romeo-and-Juliet laws, and consistent with the fact that it had already recommended that rape be sex-neutralized (see item 1 above).

(3) The recommendation correctly cited §1633 but erroneously quoted the text from §1631; it should have read "patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person who is not his spouse, who is less than sixteen years old, and who is at least five years younger than the actor. . . ."

(4) The recommendations were also intended to make sure that any sex with under-12-year-olds, regardless of the age of the other party, would be illegal; but that would have been accomplished through the recommendation that "A sex-neutral definition of rape, such as the one set forth in S. 1400 §1631 should be added to Title 18 or Title 10 and referred to throughout for the definition of the offense." That definition would have included a flat ban on sex with under-12-year-olds.

So a person who was just reading the report would have rightly inferred, I think, that the report was meaning to change the age of consent. (That's why it recommends including §1633, the main purpose of which is to change the age of consent, not to sex-neutralize the offense.) A casual reader might also have inferred that the report was meaning to change the age of consent to 12, period, which is what the text says.

But the careful reader — which I, unfortunately, was not (especially in my more recent post on the subject here) — should have realized that the report was likely intending to recommend replacing the "carnal knowledge" ban not with a flat age of consent of 12 (what the text said) but rather with a graduated Romeo-and-Juliet age of consent that would have been set at 16 for adults (what the §1633 that the text cited said).

So while I still disagree in some measure with some of Tim Noah's analysis in Slate (I think the report was endorsing a change in the age of consent, and not just talking about sex-neutralization, and I think Ginsburg's critics' views may well have been just a reasonable mistake and not a deliberate smear), and while I stand by my points about the report's recommendation to decriminalize prostitution and its likely recommendation to decriminalize polygamy, I now find it highly unlikely that the authors of the report really did intend to recommend that the age of consent be generally lowered to 12. Rather, the recommendations cited the right subsection but quoted the wrong one; and the intended purpose was to decriminalize sex between 12-year-olds and up-to-16/17-year-olds and substantially lower the maximum penalties for sex between 12-year-olds and older partners (from 15 years to 3 years) — a scheme that is probably still less restrictive than many (including me) would endorse, but that makes much more sense than a flat age of consent of 12.

Ginsburg's critics were led astray by this error, which suggests that their characterization of Ginsburg's views was likely a mistake of their own, rather than a deliberate "smear." But I now do think that the critics' assertions — and my own past assertions — were indeed likely mistaken.

UPDATE: I've updated the text above to reflect the punishment that S. 1400 §1633 would have authorized for sex between adults (over age 21) and 12-year-olds -- it would have been at most 3 years in prison.

People sometimes argue that others — usually conservatives who have expressed some support for federalism — are being inconsistent: How can you argue for leaving topic X to state-level decision, but favor federal authority over topic Y? Such arguments can of course sometimes be apt. But often they seem to me overstated, (1) because they conflate different kinds of criticism of state action, and (2) because they mistake federalism (support for leaving many things at the state level, but deciding many others at the federal level) for a more categorical localism (support for leaving everything at the state level).

1. Let me begin by laying out several different kinds of questions that people can ask about whether something — and especially some matter of ostensible individual right — should be decided at the national level as opposed to the local level. (By local I'll usually mean "state," but similar questions can sometimes arise as to city/county-state relations.)

a. Should the federal Supreme Court protect a certain ostensible right throughout the nation, displacing contrary federal and state decisions? The answer here will often turn on how one reads the Constitutional text. Most federalists acknowledge that there are at least some such rights that are constitutionally protected, but they may legitimately disagree among themselves (and with those who don't much care about constitutional federalism) about which are protected, and how much.

b. Does Congress have the constitutional authority to protect a certain ostensible right by federal statute throughout the nation, displacing contrary state decisions? The answer here will turn on how one reads the grants of federal power in the Constitution, both the Enforcement Clause of the Fourteenth Amendment, and the provisions (especially broader ones, such as the Commerce Clause) of article I, section 8 of the Constitution. (A related question: Should the Commerce Clause be interpreted as presumptively prohibiting states from doing certain things that have an effect on interstate or foreign commerce, absent specific Congressional authorization?)

c. Should Congress exercise its authority to protect a certain ostensible right by federal statute? The answer here may turn on whether you think the claimed right really is morally proper (e.g., Congress shouldn't enact a statute giving parents the right to beat their children, even if it's within Congress's power to do this). It may also turn on whether you think there are practical or democratic theory reasons for resolving certain matters at the state level (e.g., the right solution may be different depending on different local conditions, the right solution will only be reached through state-level experiments, or there are special dangers in federal authority in this area) or at the national level (e.g., the actions of one state will substantially affect behavior in another state, or the claimed right is so morally imperative that we must protect it as broadly as possible).

d. Even if the federal government shouldn't step in, should people nonetheless urge all states to protect a certain ostensible right? One might, for instance, think that states have the constitutional power to restrict guns, punish various sexual practices, engage in religious speech, regulate economic activity in certain ways, and the like — but one might think that such actions improperly interfere with people's moral rights (even if not their federal constitutional rights), or yield various inefficiencies. As to other matters, one might think that states really should do their own thing, especially when one thinks there aren't really genuine claims of moral right involved, or if one thinks that diversity among states is helpful.

It's therefore important, when analyzing someone's arguments for consistency, to understand which argument they're making. There might be inconsistency in arguing for federal constitutional protection for sexual autonomy but arguing that gun rights questions should be left at the state level (though even there one can of course explain why one thinks that the Constitution should be understood as protecting one sort of individual right and not the other). But it's hard to see the inconsistency in arguing that there should be no federal constitutional protection for sexual autonomy (a level (a) argument), but that it's wrong for states to ban handguns (a level (d) argument) and that such handgun ban proposals should therefore be defeated in state legislatures.

2. More broadly, it's important to remember that few people are complete localists in the sense of believing that everything should be done at the local level, or even complete nationalists in the sense of believing that everything should be done at the national level. (Some people believe that federal courts shouldn't enforce any constitutional federalism-based constraints on what the federal government may do, which is to say that the federal government may nationalize all issues, subject only to individual rights objections; but even they don't generally think that the federal government in fact should nationalize all issues.)

Certainly "federalism" has always been understood as a commitment to preserving zones of authority for both the federal government and state governments (and likely partly overlapping zones to boot). At times federalists have stressed federal power more (consider most of the 1780s federalists) and at times state power more (consider most of the modern federalists), but that simply flows from the different issues involved at the time: Federalists arguing against supporters of very broad state power will take the more-federal-power side; federalists arguing against supporters of very broad federal power will take the less-federal-power side.

In fact, today's federalists probably have a broader view of the proper scope of federal power than most of the 1780s federalists had. They just tend to talk more about state power because today they think matters have swung too far in the direction of federal power.

So again one can't just say "If you're such a federalist on the Violence Against Women Act, why are you in favor of national rules governing gun manufacturer liability?" Federalist theory does support national rules in some areas (for instance, regulations of commerce that substantially affect the national economy) and local rules in other areas (for instance, punishment of noncommercial criminal activity).

One can certainly argue that federalists are mistaken about where the line should be drawn, or even inconsistent in drawing that line. But one needs to do that by concretely explaining why the line should be drawn in a particular place, or why two things must in any event be on the same side of the line — one can't just point to the federalist's supporting national solutions in some situations and state solutions in others and say "Aha! Inconsistency!" Federalism is all about supporting national solutions in some situations and state solutions in others. More broadly, I suspect that good judgment, left, right, center, or libertarian is all about supporting national solutions in some situations and state solutions in others.

3. All this may be obvious — but it's the sort of obvious that people miss. Pointing out supposed inconsistencies in others' positions is such fun that people tend to do it a bit too promiscuously. And sometimes, of course, pointing out inconsistencies is helpful: It may help persuade some people that their own philosophies should lead them to a particular result; or it may persuade others that a particular kind of position is inconsistent and thus shouldn't be given credence.

But we need to be careful in allegations of inconsistency (and especially of hypocrisy). Often the inconsistency is more illusory than real, or at least demonstrating it requires a lot more argument than critics actually provide.

UPDATE: My colleague Professor Bainbridge posts his take on a related issue. Quick excerpt: "I am an unabashed proponent of competitive federalism – i.e., the idea that having corporate law regulated at the state level promotes competition between states seeking to attract corporations to incorporate in their state, which competition tends to lead to efficient legal rules. Does this mean I am ideologically constrained to support Spitzer’s crusade even if I think he is more concerned with raising his profile for a widely-predicted future gubernatorial campaign than cleaning up the corporate swamp exposed by Enron et al.? I’ve been puzzling about that question for a while, and have finally concluded I can be a competitive federalist and still want Spitzer to shut down."

on the Roberts Memorandum.

from Getting Generally Available FEMA Funds: Cathy Young comments on these.

I should say that under a plausible reading of current Establishment Clause doctrine (see the Mitchell v. Helms case from 2000, and Justice O'Connor's controlling concurrence there), the government indeed must discriminatorily exclude religious institutions from FEMA benefits programs, including programs aimed at repairing damage incurred when the institution was trying to help disaster victims: The theory would be that in such "direct aid" (as opposed to private-choice voucher) programs, no government money — even money that's distributed evenhandedly to all property owners damaged in a disaster — may flow to religious institutions unless there are up-front controls instituted to make sure that the money couldn't be used for religious purposes. I suspect there are no such controls on FEMA money, given that FEMA programs weren't designed with this in mind.

But that, it seems to me, just shows how wrong current Establishment Clause doctrine is on this score — and how much better current Establishment Clause doctrine is when it comes to private-choice vouchers, where the law now recognizes that equal treatment is not establishment. For more on this, see my Equal Treatment Is Not Establishment piece (which was written before Mitchell v. Helms and Locke v. Davey, but which is in a sense a prospective criticism of those decisions, as well as a prospective defense of Zelman v. Simmons-Harris, the private-choice voucher case).

Finally, just to make clear the current legal rule (to the extent that one can make it clear), here's a summary from my Religion Clauses textbook:

1. Evenhanded “private choice” funding programs — in which funds are routed by private individuals to institutions of their choice — are generally permissible even when these funds end up being used for religious purposes. See Zelman v. Simmons-Harris (2002).
2. Evenhanded “direct aid” programs — in which benefits are given directly to religious institutions — are
   1. Permissible if and only if there’s some assurance that the funds will not be used for religious purposes.
      • Thus, a program that funds new buildings in all universities, and then lets the universities use those buildings for religious purposes, is forbidden. Tilton v. Richardson, 403 U.S. 672 (1971).
      • The program in Mitchell v. Helms (2000), or a program that gives schools secular equipment, such as secular books, Board of Ed. v. Allen, 392 U.S. 236 (1968), is permitted.
      • This is the result of Mitchell, in which the two swing Justices (O’Connor and Breyer) took this view. Four other Justices (Rehnquist, Scalia, Kennedy, and Thomas) take the view that there is no Establishment Clause problem with religious institutions participating in any evenhanded benefit programs, so long as the benefits are not themselves religious (i.e., so long as the benefits are money or secular books or supplies).
      • This is also pretty much the rule for direct-aid “charitable choice” programs, in which the government subsidizes a range of public service programs (for instance, alcohol and drug abuse rehabilitation programs), some of which are run by religious organizations. See Bowen v. Kendrick, 487 U.S. 589 (1988).
   2. Justice O’Connor also voted to uphold the program in Rosenberger, even though it was not a “private choice” program — religious newspapers were directly subsidized, rather than getting funds through the private choices of individual students — and even though the funds were certain to be used for religious purposes. Query how this can be reconciled with her position in Mitchell.

UPDATE: I originally wrote "per-capita voucher" where I meant to say "private-choice voucher"; silly mental crossed wires on my part — "private-choice voucher" is the Establishment Clause term of art. Thanks to Marty Lederman for correcting me on this.

I've long been struck by attempts to paint gun rights activists as paranoid. "[N]o one is seriously proposing to ban or confiscate all guns. You hear that only from the gun lobby itself, which whistles up this bogeyman whenever some reasonable regulation is proposed." Just modest, reasonable regulations, folks, that's all that it's about; and you must be an extremist or irrational if you're worried about more.

In response, I put up a Web page documenting all the groups and commentators that have urged total or near-total handgun bans (and in some instances bans on all guns); and, of course, those jurisdictions that have in fact implemented such bans. It hardly seems paranoid to worry about proposals that have been made by Senators, Representatives, mayors, editorial boards of the L.A. Times and the Washington Post, leading opinion journalists, and leaders of prominent gun control groups — and that have been in fact enacted in some places (including our nation's capital).

Still, sometimes even I am surprised by the breadth of the proposals that I hear, and the attitude they bespeak towards guns and gun policy issues. Here's one from lawprof and legal blogger Kaimi Wenger, prompted by a recent workplace shooting:

Here's a question, perhaps a suggestion: Should companies, as a condition of employment, start requiring workers to sign an agreement of non-gun-ownership? This would require an employee to state that she does not own any guns, and that she will not purchase any guns during her employment. It seems that if an employer required an employee to agree to non-gun-ownership, the likelihood of a workplace killing by that employee would be lessened.

Such a change wouldn't altogther end workplace killings. There's the possibility that the employee would lie on her application, or would simply acquire a gun after being fired and use it to attack her workplace. On the other hand, it is all but certain that there is some population of unstable, disgruntled employees who own guns, and that for some of those employees, their easy access to currently-owned guns is an important enabling factor that facilitates a decision to transfer their anger into actual killing of their co-workers.

Would a requirement of non-gun-ownership be legal or enforceable? I'm not sure. (Do we have any employment law people here?) A while ago, Eugene Volokh blogged about a court upholding a ban on gun ownership by public housing residents — apparently that kind of restriction on gun ownership is allowed. On the other hand, there is (at least in one state) a self-defense exception to the at-will employment doctrine.

If this kind of provision is legal, then perhaps it is something employers (and their insurers) should start looking into. . . .

Now as it happens, I'm libertarian enough to think that such a proposal should be legal; a private employer should generally be free not to employ people whom it doesn't want to employ. Some laws restrict this in some measure, for instance as to race or sex discrimination, but I don't support expanding those laws. A few states already ban discrimination based on lawful off-the-job behavior, and gun ownership may be one such example, but I think that this should be left to the market and social norms, not to legal constraint.

Nonetheless, while this proposal isn't a government-imposed gun ban, it surely is a suggestion for social and business norms that would dramatically affect people's ability to have guns (whether handguns, rifles, or shotguns) for self-defense, including in their own homes. What's more, it seems to me evidence quite a remarkable attitude towards guns, and towards the cost-benefit calculations to be made when making gun policy.

After all, the proposal would at best prevent a tiny fraction of all workplace shootings: To be affected, the murderer would have to be someone who (1) is sufficiently rule-abiding that he complies with the employer policy, (2) is so staggeringly non-rule-abiding that he's willing to commit murder (lots of us get upset at people, but very few are actually willing to violate the moral and legal norms about murder), and (3) doesn't have the time or the opportunity to buy a gun, or get a gun from a friend or another source, between the time that he decides on murder and the time he commits murder. (Note that the killer in the case that seemingly triggered Prof. Wenger's post was apparently fired in 2004, following an arrest on child pornography charges, though the story is slightly ambiguous on that score.)

There are apparently about 550 workplace homicides per year in the U.S. (2004 data); of those, 7% were committed by coworkers or former coworkers (1993-1999 data). Even if every one of these was committed with a firearm, that would be roughly 40 homicides per year; and even if every employer in the country implemented this policy — a result that would in some ways be similar to, though not identical with, a total gun ban — and 10% of all potential murderers fit within categories 1, 2, and 3, we'd save . . . 4 deaths per year, for a rate of roughly one in 50 million workers. Even if the effectiveness rate were 50% rather than 10%, we'd still save one in 10 million workers. Or if you look at it on an enterprise basis, a company with 10,000 employees would like avoid, on average, one death in 5,000 years (assuming the 10% number).

What about the cost side of the ledger, which isn't even mentioned in the proposal? For starters, 35-50% of all U.S. households contain a gun. Presumably the policy would have to operate on a household basis, since an adult member of a household likely has access to the guns in his household. So to avoid one death in 5,000 years (or one in 1,000 years, if you use the in my view wildly optimistic 50% figure), the company would risk losing 35-50% of its potential workforce. Even if half the workforce cheerfully complies, then the company would still lose 17-25% of its potential workforce. (Of course, more likely the company will lose little of its potential workforce, since no-one would take the contract seriously, but then there'd be no upside to the contract, either.)

And of course if half the workforce does comply, that half of the workforce would be completely disabled from using guns for lawful self-defense, either in the home or in the street (in the majority of states in which any law-abiding adult is entitled to get a license to carry a concealed weapon). Yet the proposal doesn't even mention this loss of self-defense. Is it that the response to losing 20% of your potential employees should be "good riddance"? That loss of people's ability to defend themselves is irrelevant? That it's so obvious that gun ownership doesn't really promote the ability to defend yourself? That workplace shootings are so overcovered by the media, and law-abiding gun ownership is so undercovered, that the benefits of the proposal would loom far larger than reality, and the costs would seem far smaller than they are in reality?

I realize that this is just one proposal by one law professor. If that's the only call I heard for gun bans or something close to them, then indeed this would be nothing to worry about. But, as my calls-for-gun-bans Web page demonstrates, the proposal is just an unusual twist on a longstanding pattern. Given this longstanding pattern, is it any surprise that people who care deeply about self-defense rights worry about even modest proposals? Is it any surprise that they scoff at claims that of course the core of their self-defense rights is secure, and that no one is seriously proposing to ban their guns? Is it any surprise that inside many a gun controller there is a would-be gun banner, whether the ban operates through legal compulsion or through some proposed social norm that would strip those who want to own a gun for self-defense of their livelihoods?

UPDATE: By the way, just to make it clear, I realize that Prof. Wenger's post is phrased as only "perhaps a suggestion" and "perhaps it is something that employers (and their insurers) should start looking into." If this means that the professor is open to persuasion, I certainly hope to persuade him. Yet the other calls for gun bans that I point to are surely not merely "perhaps suggestions." The movement to ban guns is out there, and has some prominent adherents, who aren't just throwing around hypothetical suggestions (which I surely agree is a perfectly laudable use of blogging).