By Eugene Volokh
The judge expressly endorsed Judge Niemeyer’s separate opinion in United States v. Masciandaro (4th Cir. 2011) that concluded that the Second Amendment applies outside the home and not just in the home, and that restrictions on gun carrying must be tested under so-called “intermediate scrutiny.”
(For more on the dispute among courts about the right to keep and bear arms outside the home, see this post about yesterday’s district court decision striking down Maryland’s broad gun carry restrictions.)
But the court held that 18 U.S.C. § 922(h), which bars people from knowingly possessing guns “in the course of … employment” “while being employed for any person” who is himself a felon possessing guns. (Here, the defendants were allegedly members of the Pagans Motorcycle Club, and were allegedly taking instructions from a club leader who was a convicted felon.) Among other things, the court held that,
Section 922(h) is … limited in [important] respects: temporally, an individual is only precluded from possessing a firearm while acting in the course of his employment for a prohibited person, and he is free to regain his right to possess firearms by simply parting with the employment relationship. To be quite clear, even an individual who maintains an employment relationship with a prohibited person may lawfully possess firearms, provided he is not acting in the course of employment at the time of the firearm possession. From this discussion, it is clear that Congress tailored the prohibition in § 922(h) to cover only certain individuals at certain times and when they act in certain ways. In other words, the scope of § 922(h) is effectively limited to vicarious possession by prohibited persons, although it penalizes the proxy rather than the prohibited person. It is a commonsense extension of the prohibitions contained in § 922(g). Just as § 922(g) strips firearms from the possession of prohibited persons, § 922(h) effectively strips firearms from their control.
The court does not discuss the situation where someone is employed “for” (the statutory requirement) a person, but whose gun-related actions are not controlled by a person — for instance, if a felon contracts with a security company to provide him with a full-time bodyguard. In that situation, I would think that the bodyguard is “employed for” the felon, though not employed by the felon. Likewise, the court does not discuss what happens when § 922(h) is applied to people who are “employed for” other people who aren’t themselves allowed to possess guns, such as nonresident (but legally admitted) aliens, people who have a history of mental problems, and the like. Section 922(h) applies to anyone who is “employed for” a person who is legally not allowed to possess guns himself, whether because of a felony or some other disqualifying characteristic.
I would think that in many such situations the bodyguard’s own Second Amendment rights — including such rights exercised in a place that the bodyguard and the protected person are using as a temporary home — should prevail, at least if the bodyguard is responsible to a security company even though he is “employed for” the company’s client.
But perhaps that could be avoided by construing “employed for” narrowly; in this case, the government’s claim is that the defendant’s gun use was indeed being controlled by the felon motorcycle club leader.
About Eugene Volokh
Eugene Volokh is a law professor at UCLA, who specializes in free speech, religious freedom, church-state relations, and gun rights; he is the author of two textbooks, over 70 academic articles, and over 80 op-eds, and is the founder of The Volokh Conspiracy blog.