By Dave Kopel
America's 1st Freedom, Nov. 2009. More by Kopel on Obama administration and its appointments.
Should your right to defend yourself vanish when you drive to work?
Soon it could, thanks to President Obama's nominee to head the Occupational Safety and Health Administration.
Plenty of Obama's administration appointees have a longer record of anti-gun activism than David Michaels, but perhaps none of them have the ability to make such a dramatic, instant change in the lives of law-abiding gun owners.
OSHA, which is part of the Department of Labor, is in charge of setting workplace safety standards throughout the United States. By its own fiat, OSHA could outlaw the possession of firearms in every workplace and every employee parking lot in the United States.
That David Michaels is anti-gun is undisputed. On his weblog, he celebrated the defeat of bills in Georgia and Florida in 2007 that would have prevented businesses from firing any employee who kept a lawfully owned firearm in a work parking lot. (The bills were enacted in subsequent legislative sessions.)
The blog post, entitled "It Takes a Tragedy," suggested that the very recent mass murder at Virginia Tech University had led to the defeat of the Georgia and Florida bills. Michaels obviously drew no lesson from the fact that Virginia Tech's administration had made the campus a pretend "gun-free zone.
Michaels said that such a massacre "reawakens the public and strengthens public health advocates who are attempting to prevent gun violence." (April 20, 2007, entry on "The Pump Handle" weblog.) Michaels warned: "the NRA will no doubt be back, pushing legislation that stands in the way of preventing gun violence."
Walter Olson, a scholar at the Manhattan Institute in New York City has long been one of America's leading voices for sensible reforms to stop abusive lawsuits. He has been a strong critic of the anti-gun lawsuits cooked up by gun-ban groups and the big city mayors who love them.
Olson warned about the danger that Michaels poses to the Second Amendment: "Once you start viewing private gun ownership as a public health menace, it begins to seem logical to use the powers of government to urge or even require employers to forbid workers from possessing guns on company premises, up to and including parking lots, ostensibly for the protection of co-workers."
Could Michaels really do so?
Probably. OSHA, created by Congress in 1970, sets workplace safety laws for the entire country. The OSHA statute is extremely general, and gives the administration broad discretion in determining workplace safety rules.
The Supremacy Clause of the U.S. Constitution means that a valid federal law or regulation wins in any conflict with a state law. Many states have laws that protect the rights of employees to store lawful firearms in parking lots at work. If an OSHA regulation prohibiting such storage existed, the federal regulation would trump state law.
So far, OSHA has not gotten into the gun-ban business. OSHA very briefly touched on the issue of workplace violence in a case in which a psychiatric hospital was found liable for not protecting employees from attacks by violent patients.
Obviously, there's an immense difference between ordinary Americans and those who have been confined to an institution for the violently insane. The gun banners, however, don't think people without serious mental health problems can be trusted with guns.
Since OSHA requires employers to maintain a safe workplace, and since preventing workplace violence is part of workplace safety, the prohibitionists have argued that the federal Occupational Safety and Health Act (OSHA) implicitly bans all guns in the workplace, or in all workplace parking lots. That might strike you as an absurd argument, but that just means you're not an anti-gun federal judge.
Before I explain, let's take a step back to look at the kind of big business abuse that has made parking lot protection necessary. Let's go back to the beginning of the Oklahoma hunting season in October 2002. It was a time when people all over the state would be especially likely to have firearms in their vehicles.
At the Weyerhaeuser paper mill in Valliant, Okla., the mill's security staff obtained the assistance of the local sheriff to use trained detection dogs for mass, warrantless searches of employee cars. The cars were in a company parking lot, which was also open to the public and which was used by customers of a nearby Wal-Mart and golf course.
A dozen employees had guns in their cars. There was no dispute that the guns were owned for lawful purposes, such as hunting after work, or for protection while traveling to and from work.
Still, all twelve employees were fired.
The people of Oklahoma and their legislators were outraged. The Oklahoma legislature promptly passed--by a vote of 92-4 in the House and 41-0 in the Senate--a statute that prohibited employers from banning guns in employee cars in company parking lots.
Similarly abusive conduct by America Online led the Utah state legislature to enact a parking lot protection statute as well.
Several big corporations sued to prevent the Oklahoma law from going into effect. Most of them, however, dropped out of the case after the National Rifle Association announced a boycott of Conoco Phillips, which was one of the plaintiffs.
The heart of the lawsuit was the claim that the Oklahoma law was pre-empted by the federal Occupational Safety and Health Act because the Act has a general requirement that employers maintain a safe workplace. Amazingly, this claim succeeded in federal district court.
Of course, the lawsuit was assisted by the Brady Center, which suddenly became so devoted to the private property rights of big corporations that you would think the ghost of Ayn Rand had taken over the organization.
The new devotion of the Brady Campaign (and other gun-ban advocates) to private property rights was expedient and hypocritical. After all, these are the same folks who never let property rights get in the way of their campaign to control and ban the possession of privately owned firearms on privately owned property--such as one's home.
If someone thinks that government should have absolutely no role in employer-employee relations (e.g., that an employer should be able to fire an employee for joining a union or for engaging in political activity outside of work) then that person could be consistent in opposing the parking lot protection laws. Yet American law does happen to be well settled that the government can play a role in protecting employee rights--and that such protection is especially appropriate when an employer tries to fire an employee for exercising constitutional rights.
The Oklahoma case went up to the federal 10th Circuit Court of Appeals. As the case was pending before the appellate court, OSHA wrote to the sponsor of the Oklahoma law and affirmed that OSHA had never promulgated any regulation against guns in the workplace, and had no regulation that would preempt the Oklahoma law. Accordingly, the 10th Circuit reversed the district court and upheld the Oklahoma parking lot protection law.
However, the result would have been the opposite if OSHA really did have a regulation against guns in parking lots. That's where David Michaels could come in.
Under Michaels, OSHA could write a regulation stating that it is illegal for any business to allow guns in the workplace or in parking lots. No handgun could be locked in the trunk of a car, even if the owner has a Right-to-Carry license. No rifle could be stored in the car, even if there's no ammunition around and the gun will be dropped off at the gunsmith after work.
While some states protect employee rights in parking lots, most states grant the business unlimited discretion. In such states, there are plenty of businesses that do not mind if an employee has a defensive handgun in his or her desk, or in his or her parked car. Ironically, OSHA could ban guns there, too.
Indeed, since schools and colleges are workplaces, OSHA could also pre-empt state laws that allow firearms on school property under limited circumstances--such as when a parent with a Right-to-Carry permit is dropping a child off in a school parking lot and the gun remains in the car.
People who would object to the OSHA gun ban would point out that there's no good basis for it in social science. People who lawfully possess firearms in their cars are not some great menace to society.
However, OSHA would be able to cite studies from groups like the Brady Center and its academic allies. Michaels' own career reveals his devotion to "public health" studies that are often used to prove the need for more government control over society. He is particularly irked by counter-studies that critique what he sees as the unassailable scientific truth of the pro-statist research.
Courts are unlikely to examine the validity of any social science research that might be cited in support of an OSHA gun ban. Judges are highly deferential to agency "expertise." Even if the weight of the social science evidence sits strongly on the pro-rights side, courts would likely tolerate a gun ban as long as OSHA could cite supporting evidence from these agency "experts."
Note that Michaels has an important patron who might urge him to push the gun ban. As a professor at George Washington University, Michaels runs something called "The Project on Scientific Knowledge and Public Policy" (SKAPP). One of the funders of SKAPP is George Soros's Open Society Institute.
Although Michaels is a member of what The Wall Street Journal calls the "Axis of Soros," Michaels insists that SKAPP donors have no influence on the project's work or its research outcomes. Yet Michaels and SKAPP constantly insist that any study or group that is funded by an industry is nothing more than scientifically useless propaganda.
Michaels considers himself an opponent of "politicized science," but the record shows that he practices it enthusiastically himself--as detailed by Carter Wood in an Aug. 6 article for PointofLaw.com. Indeed, SKAPP also gets a lot of its funding from trial lawyers, who extorted money from industry on scientifically bogus grounds and who are using SKAPP to push for weakening the rules against use of junk science in courtrooms.
Fortunately, there are two ways to stop an OSHA gun ban.
In the short term, as long as the Obama administration perceives that pro-Second Amendment supporters are active and politically engaged, the administration may not want to risk imposing a federal regulation that would take away the rights people exercise on a practical, day-to-day basis in many states.
That political caution, however, could change if another large terrorist attack occurred, or some other infamous crime was committed. As White House Chief of Staff Rahm Emanuel has said: "You don't ever want a crisis to go to waste; it's an opportunity to do important things that you would otherwise avoid."
In the long term, the best approach would be for Congress to amend the OSH Act itself, mandating that nothing in the statute allows OSHA to regulate firearms. Such an amendment would in no way expand gun rights; rather, it would simply maintain the status quo.
From its creation in 1970 until the present, OSHA has not invented gun regulations for the obvious, common-sense reason that guns locked in parked cars, are not a workplace safety hazard. Rather, guns are a social policy issue and Congress, when enacting the OSH Act, never meant for a workplace safety agency to start making rules about social policy.
An amendment to the OSH Act would keep the status quo intact and prevent the Obama administration, or any future administration, from perverting a safety statute into a ban on the one type of safety device that is protected by the United States Constitution.