The United States District Court for the Southern District of West Virginia ruled in United States v. Weaver yesterday that an employee is prohibited from carrying a gun while working for a felon. Eugene Volokh of The Volokh Conspiracy reports “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.) Brief excerpt from the ruling after the jump . . .

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.


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26 Responses to Court Bars Carrying a Gun While Working for a Felon Posessing Guns

  1. Hmm… So after I have completed my background check for employment I will then need to have my employer complete one too?

    Gun possession by association. Next there will be a law to maintain a minimum safe distance from a felon while carrying…

    • Volokh comments that this might not be the case if the bodyguard worked for a company, and was sent by the company to protect someone who was a felon. The court apparently did not address it (according to Volokh’s comment–I haven’t read the case yet). His reasoning is something like this: the bodyguard woudn’t be working “for” the felon in that case, they are still working for the bodyguard company who pays their check.

      I do think the statute would apply if you directly hired a bodyguard who worked for themselves, and didn’t go through a company to have a guard assigned to you. Direct employer/employee relationship.

      • An independent contractor should not be considered as “working for” anyone except himself. There’s a big difference in law and fact between an independent contractor and an employee. I think contract bodyguards are unaffected by this ruling if they’re not contracted by a criminal organization. Criminal orgs have a different command structure.

  2. So felons are not allowed to even hire someone to protect them?

    Martha Stewart can’t have a bodyguard in that District?

    What if the employer is not a felon, but hires the gun toting person to be someone else’s bodyguard?

    Sounds like a court out of control to me.

    • Martha Stewart – that’s a great example. How about some of these “Rap artists” who have guards, they brag about their criminal records so it’s common knowledge they can’t possess. No armed guards for them.

  3. Very glad to see Eugene Volokh quoted here. He and his blog are informative and objective about many legal issues, particularly gun control. (He wrote a scholarly paper on the subject that has been quoted by many courts, including The Platonic Nine.) His blog is overall of libertarian persuasion, though ymmv. A good place for the armed intelligentsia to carouse, and I highly recommend it.

  4. With the whole “tough on crime” B.S. so many things are low level felonies these days. If you happen to work for a schlub who did his time you’re screwed. Call me cynical, but I fully expect subsequent court rulings will find even owning firarms while employed by a felon, even when not at work, is illegal.

    • It’s even worse than that. Many of the so-called felons are not felons at all, but low or mid-level state misdemeanors: The law actually specifies the length of maximum sentence which could have been applied. So, for example, if you are in a strict DUI state and get two of them while in college, you are a felon for the purposes of §922. This even though the second DUI is categorized as a misdemeanor by the state. That issue, with a different underlying offense, is on appeal from US District Court in MD, I believe.

  5. Oh good, another ridiculous and unconstitutional way to have my rights restricted because someone else was irresponsible and stupid. Even better, I could have no way of knowing I’m in violation of the law unless an employer wants to share his criminal history with me.

  6. So, not only do we take away people’s rights to self-defense even after they’ve done their time, but we take away their only other option for self-defense?

  7. So let’s see here….
    If a waitress in a bar doesn’t smoke the state has a right to force a no smoking rule on the business because the waitress can’t be expected to quit.
    But if you want your 2A rights back you are expected to quit to regain them because the boss can’t handle a gun legally.

    So an unwritten right to work in a smoke free environment is protected while a 2A right is not. Maybe this isn’t a great comparison but since one circumstance is considered an appropriate use of the government why is the other now?

  8. “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.”

    This looks like yet another paving of the road to Hell. The intention was good. The execution, particularly the punishment of the (lawful) employee instead of the (prohibited) employer, was as misdirected as laws restricting weapons instead of criminals.

  9. Good thing for politicians that they’re above the law, or the entirety of the Secret Service would be out of a job.

  10. When will the court extended this rule to the spouses of prohibited persons? Or their children? This is a chilling development.

    • In NY a pistol permit will not be granted for possessing a handgun if a spouse is a felon. You might not even get the long guns.

  11. I think the issue is a person who is a convicted felon hires a proxy to carry a firearm so that the felon can have ready access to the firearm without actually carrying or owning the firearm.

    • How is this intent proven? As written it can be interpreted beyond the good intention it was intended for?

  12. “and he is free to regain his right to possess firearms by simply parting with the employment relationship.”

    I’m glad the court pointed out how I could “regain” a fundamental human right inherent to all people on earth. That sure was nice of them.

    Also, when did we bring slavery back? Last time I checked my employer didn’t “possess” me, so IDK how my having a gun could count as them possessing it.

  13. So what about the Political elite?
    Any Congressman, or Senator who is a convicted Felon cannot have a guard.

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