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Guns, Wildcats, and at-Will Employment

April 26, 2012

Professor Volokh has an article today about Kentucky’s Supreme Court decision, in which the court concluded that Kentucky statutes prohibit the University of Kentucky from terminating an employee for keeping a firearm in his vehicle on campus.  Professor Bainbridge provides an interesting commentary, criticizing the Kentucky Supreme Court for allegedly undermining the vitality of the employment-at-will doctrine.

Professor Bainbridge is off-target here, because UK is a public employer.  The employee in question was a grad student, and therefore he did not enjoy any of the tenure or “property interest” protections that accrue to most public employees, including Professor Bainbridge.  Still, he was an employee of UK, an institution that was created by the Kentucky legislature and presumably is still funded, to a large extent, by the same legislature.  Why is it objectionable for the Kentucky legislature to make rules that govern employment relationships for an entity that was created and funded by the same legislature?  Besides, a public employer should set the example when it comes to defending Constitutional rights.

Professor Bainbridge engages in dubious moral equivalence by asserting that “both right and left are willing to throw at-will employment under the bus to advance policy goals.”  The flaw in this reasoning is that the rights to keep and bear arms are not mere policy goals.  They are fundamental freedoms, protected by the U.S. Constitution.  What if an employer fired employees for keeping “inflammatory” banners or signs concealed in their vehicles, for use at a rally after work?  Would Professor Bainbridge mount a fierce defense of the at-will employment doctrine in these circumstances?  Probably not.  After all, college professors are generally much fonder of talking and demonstrating than shooting.

Granted, the Kentucky statute also applies to private employers, but that’s not what this decision was about.  Unlike the NRA, this weblog does not support statutes that apply to private employers.  We think it is much better public policy to enact statutes that immunize private employers from tort liability if they allow employees to store firearms in their vehicles.  This would eliminate the perverse (tort law driven) incentives for private employers to institute these policies.  However, as we have explained above, the reasoning should be much different for public employers.

By the way, it appears that Mr. Mitchell could have used better judgment in his encounter with the UK campus police:

When questioned, Mitchell denied having a firearm in his locker.  Police and hospital administrators searched Mitchell’s locker with his permission, but found no weapons. Mitchell informed officers that he had a concealed carry license and admitted that he kept a firearm in his vehicle, which was parked on University property at Commonwealth Stadium. … Campus police escorted Mitchell to his car, where he showed them the semiautomatic pistol he had stored in his vehicle.

When the authorities (especially the stooges employed by a far-left institution like a state university) ask you about your weapons ownership, it’s an astonishingly bad idea to volunteer information.

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