Wednesday, January 6, 2010

Second Amendment Unemployment Compensation


This is another in a series of posts on First Amendment Unemployment Compensation. The Supreme Court has held that an employee terminated by a private employer for refusing to work on Saturdays (for religious observance) can not be denied unemployment compensation (UC) under the First Amendment.

A recent case applied the same rationale to employees terminated for speech. Essentially, the First Amendment is applied to private employers in UC matters. I warned readers that I would "have some fun with future applications of this legal framework." As luck would have it, Gilbert Arenas has supplied me with the perfect backdrop for one such application!

The National Law Journal (NLJ) writes on Gilbert Arenas, guns, and the Supreme Court. Arenas, a star NBA player for the Washington Wizards, brought some handguns to work in D.C. The NLJ article discusses the Second Amendment and the Arenas situation. A recent Supreme Court case, D.C. v. Heller, was heralded as a landmark Second Amendment decision. Heller established a Second Amendment right to possess a firearm for self-protection in the home in D.C.

Let's go a step beyond Heller; just for the sake of argument let's assume that the Second Amendment also protects a right to possess firearms for self-protection outside of the home. Now, let's say an employee violates his private employer's ban on guns in the workplace and gets terminated as a result.

Under the First Amendment unemployment compensation line of cases, the Second Amendment would prohibit states from denying that individual UC, right? Just as an individual cannot be denied UC when terminated for speech or religious observance, surely an individual cannot be denied UC when terminated for exercising the right to bear arms.

Now, it took over 200 years for the Supreme Court to recognize the most basic right to possess firearms in the home. That right hasn't even been recognized as restricting the States (though an upcoming Supreme Court case may apply the Second Amendment to the states). I don't expect to see a UC application for the Second Amendment happening any time soon. But I think it's possible somewhere down the line.

Image: Handgun Collection by Joshuashearn licensed under Creative Commons Attribution ShareAlike 3.0 License.