Federal Court inTulsa Shafts Workers Re:Guns

Federal Court inTulsa Shafts Workers Re:Guns

This is a discussion on Federal Court inTulsa Shafts Workers Re:Guns within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; I have been following a case in my local federal court (where I do most of my business, but on entirely unrelated matters). It seems ...

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Thread: Federal Court inTulsa Shafts Workers Re:Guns

  1. #1
    Distinguished Member Array randytulsa2's Avatar
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    Federal Court inTulsa Shafts Workers Re:Guns

    I have been following a case in my local federal court (where I do most of my business, but on entirely unrelated matters). It seems that a few years ago a bunch of guys down at a paper plant in the SE part of the Sooner State got fired 'cause they had guns in their cars and the cars were in a parking lot owned (or rented?) by the company.

    Those guys sued for wrongful discharge, claiming that being fired for having those guns in their cars violated Oklahoma's "public policy" exception to the "at will" employment doctrine. "At will," for those who don't know, means you can get fired at any time, for any reason or no reason. The "public policy" exception excludes things that are explicitly set forth in statutes. The employees' argument was the Oklahoma Self Defense Act, etc., provided just that sort of explicitly delineated excpetion.

    They lost, IIRC, in part because the Oklahoma Self Defense Act didn't expressly provide protection for employees having guns in their cars. If it wasn't that it was some other closely-related results-oriented legal gobbledey-****.

    Those guys appealed, and I watched the oral argument at the court of appeals in Denver (I was there arguing in another case). They lost.

    In the meantime, the Oklahoma Legislature, an august body if ever there was one , decided to close up that loophole and ensure that your right to keep a gun in your car was crystal-clearly protected even though you happened to have a job and parked your car in your employer's parking lot. It didn't dawn on the legislature that it really didn't matter what they did, 'cause the nation's (as opposed to the State's) power structure (esp. the fed. judiciary), is just pretty much hostile to the idea of "the masses" ("them asses") a totin' shootin' arns. If it wasn't that "nothing in the statute about guns in the employer's parking lot" business, it would have been something else.

    What I might loosely refer to as a coalition of large, corporate employers pretty much went berserk, and filed a declaratory judgment action to prevent the new statute from being enforced.

    Yesterday the Court granted that injunction on the ground that the Oklahoma statute conflicted with the purposes of OSHA and was therefore pre-empted by OSHA. According to the opinion, having a gun in your car poses a danger to your coworkers. Forcing the employer to allow you to keep a gun in your car compels the employer to choose between compliance with the purposes of OSHA and compliance with Oklahoma law.

    The opinion is available online, but I don't have the link. A more computer-savvy person than I will have no trouble finding it.

    The opinion is also pretty remarkable for what all it does away with as far as the employer's "rights". First, it poops all over the notion that the statute in question infringed on the employer's property rights to exclude whomever or whatever it wanted from its property, at least Constitutionally-speaking. The statute doesn't, in other words, effect a "Takings" clause violation.

    The opinion is also very careful to point out that there are two kinds of pre-emption that are pertinent. For lack of a better understanding about the area, I'll call them "direct" and "indirect". According to the opinion, the Oklahoma statute in question doesn't (but comes very close, FWIW) pose a "direct" conflict with OSHA but does pose an "indirect" one, and is, therefore pre-empted by it. An Oklahoma statute that explicitly compelled an action by an employer that was explicitly forbidden by OSHA would be subject to "direct" pre-emption, and one that was inconsistent with OSHA could, upon a consideration of the totality of the circumstances, be subject to "indirect" pre-emption. Our law was found to be indirectly pre-empted by OSHA.

    The opinion parrots some stuff from the Brady Bunch and a former police chief about how dangerous guns are in parking lots.

    Not too much, of course, is mentioned with regard to submissions from the other side (NRA or JPFO, etc.), though I don't know for a fact how much supporting documentation we filed. I'll bet it's more than zero, though.

    As a thumbnail legal analysis, I'd say the opinion is vulnerable on appeal on the ground that it comes close to suggesting that OSHA seems to require a gun-free workplace. While all the corporate folks may feel well and good about keeping the guns out of their parking lots, it could ruffle their feathers to have the OPTION to allow or disallow such things taken away from them. And, make no mistake, control is what it was all about anyway. They don't care about safety, they care about control, and they were seeking to vindicate their unfettered prerogative to control their property and employees.

    It could possibly ruffle their feathers even more to have to take the steps required to ensure a gun-free workplace. It's one thing to have a no-guns in the parking lot policy. It's another one altogether to be forced to conduct regular searches, with an inspector from OSHA nearby, to ensure compliance with OSHA.

    So, if you work in Oklahoma, and you are not self-employed, prepare to buy some walking shoes and park far awaaaaaaaay from your cube, place on the shop floor, spot on the line, etc.

    Or carry it on your person and don't get freaking caught unless you want to find a new job.
    "...bad decisions that turn out well often make heroes."


    Gary D. Mitchell, A Sniper's Journey: The Truth About the Man and the Rifle, P. 103, NAL Caliber books, 2006, 1st Ed.


  2. #2
    Senior Member Array jeephipwr's Avatar
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    OSHA?

    OSHA does not have any statue or regulation dealing with firearms in the workplace. They do discuss companies having a Workplace Violence Program that might address weapons brought on the property however they do not exclude the legal ownership or use of firearms.

    A prime example here in Little Rock is the Remington Arms Ammunition factory that has a range to used not only allows firearms on site but will provide them if you dont have one, for trap and skeet shooting.

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    Awful if true; I'd like to see the opinion

    Quote Originally Posted by randytulsa2 View Post
    Yesterday the Court granted that injunction on the ground that the Oklahoma statute conflicted with the purposes of OSHA and was therefore pre-empted by OSHA. According to the opinion, having a gun in your car poses a danger to your coworkers. Forcing the employer to allow you to keep a gun in your car compels the employer to choose between compliance with the purposes of OSHA and compliance with Oklahoma law.

    The opinion is available online, but I don't have the link. A more computer-savvy person than I will have no trouble finding it.

    The opinion is also pretty remarkable for what all it does away with as far as the employer's "rights". First, it poops all over the notion that the statute in question infringed on the employer's property rights to exclude whomever or whatever it wanted from its property, at least Constitutionally-speaking. The statute doesn't, in other words, effect a "Takings" clause violation.

    The opinion is also very careful to point out that there are two kinds of pre-emption that are pertinent. For lack of a better understanding about the area, I'll call them "direct" and "indirect". According to the opinion, the Oklahoma statute in question doesn't (but comes very close, FWIW) pose a "direct" conflict with OSHA but does pose an "indirect" one, and is, therefore pre-empted by it. An Oklahoma statute that explicitly compelled an action by an employer that was explicitly forbidden by OSHA would be subject to "direct" pre-emption, and one that was inconsistent with OSHA could, upon a consideration of the totality of the circumstances, be subject to "indirect" pre-emption. Our law was found to be indirectly pre-empted by OSHA.
    Awful if true. But, the second poster in this thread stated that OSHA has no such regulation. So, if the above is true, it is a legal opinion based on an entirely false premise that OSHA regulations pre-empted the state legislation when there may be no such OSHA regulation.

    Strange stuff. Strange ruling. I'd like to see the opinion myself.
    Can you try to find it and post a url

    Again, it just goes to show what a crap shoot going to court can become.

    What I also find weird is the fact that in many places customers and employees share a parking lot. How in the world could OSHA impose a requirement on employers that they prohibit their employees from having a gun in the car without also attempting to "protect" from the customers? Could OSHA perhaps use their rule making to keep non-employee license holders out of a parking lot; thus forcing employers to post (for example in Texas) a 30.06 sign?

    This is truly weird.
    Last edited by Hopyard; October 5th, 2007 at 10:16 PM. Reason: misquote

  4. #4
    Distinguished Member Array randytulsa2's Avatar
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    I'll do what I can here...

    https://ecf.oknd.uscourts.gov/cgi-bi...2362,,,1093030

    Not sure where that gets us, but it's a start. I tried to upload the PDF version, but the file was too big (the opinion is 93 pages long).

    There may be another way to get a hold of it, but I sure don't know it. Anyone who feels up to the challenge of educating a technology- challenged individual here please PM me on how to do it.

    An alternative route that might work is to hit the court's website: it's the United States District Court for the Northern District of Oklahoma. The case number is 04-CV-820. The opinion is docket number 142.

    I couldn't tell you what OSHA has in it and what it doesn't, but I'm willing to assume OSHA doesn't say squat about guns.

    That isn't what the Court was basing it's decision on- it was ruling that the far more general goal of workplace safety is somehow implicated rather than there being something in OSHA that addresses guns.

    Yeah, very weird.
    "...bad decisions that turn out well often make heroes."


    Gary D. Mitchell, A Sniper's Journey: The Truth About the Man and the Rifle, P. 103, NAL Caliber books, 2006, 1st Ed.

  5. #5
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    Still, very strange reasoning

    Quote Originally Posted by randytulsa2 View Post
    I'll do what I can here...

    https://ecf.oknd.uscourts.gov/cgi-bi...2362,,,1093030

    I couldn't tell you what OSHA has in it and what it doesn't, but I'm willing to assume OSHA doesn't say squat about guns.

    That isn't what the Court was basing it's decision on- it was ruling that the far more general goal of workplace safety is somehow implicated rather than there being something in OSHA that addresses guns.

    Yeah, very weird.

    Yes, but I don't see how that leads to a conclusion that there is an OSHA pre-emption over OK statute. Very strange.

    Regardless, I hope the OK Atty General appeals. He needs to protect the OK legislature from improper interference with their sovereign right to legislate.

  6. #6
    Member Array Protect's Avatar
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    If this stands, since it was in federal court, would this also apply to other states?

    Randy, do you ever post on OSA?
    "When a man attempts to deal with me by force, I answer himóby force.
    "... No, I do not share his evil or sink to his concept of morality: I merely grant him his choice, destruction, the only destruction he had the right to choose: his own." -John Galt, Atlas Shrugged

  7. #7
    New Member Array F4GIB's Avatar
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    See also Tulsa World news story at: http://www.tulsaworld.com/news/artic..._A1_hHeis85083

  8. #8
    Distinguished Member Array randytulsa2's Avatar
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    Folks:

    Sorry to have taken so long to get this done (get the link up); I'm out of town.

    Bumper (who is also a fine man; he couldn't be otherwise with a "real" name like "Randy") graciously supplied me with a link to the doggoned opinion:

    http://www.defensivecarry.com/misc/WilliamsOpinion.pdf


    WARNING: It's long and it'll put a lawyer to sleep. It might make a normal person go blind.
    "...bad decisions that turn out well often make heroes."


    Gary D. Mitchell, A Sniper's Journey: The Truth About the Man and the Rifle, P. 103, NAL Caliber books, 2006, 1st Ed.

  9. #9
    VIP Member Array MitchellCT's Avatar
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    Quote Originally Posted by randytulsa2 View Post

    http://www.defensivecarry.com/misc/WilliamsOpinion.pdf


    WARNING: It's long and it'll put a lawyer to sleep. It might make a normal person go blind.
    Actually, I found it very interesting.

    Long story short, I think the OK state legislature needs to do a better job drafting this law and needs to take into account this decision, but they can try again, and likely will.

  10. #10
    VIP Member Array SammyIamToday's Avatar
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    I wonder how its not an OSHA violation in KY...

    Heck, if an employer fires you for that here, the Attorney General of the state has to take the case for you.
    ...He suggested that "every American citizen" should own a rifle and train with it on firing ranges "at every courthouse." -Chesty Puller

  11. #11
    New Member Array txgho1911's Avatar
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    An essay I found posted on another RKBA resource. This does not contain links to original location. Citations are included.

    THE UNABRIDGED SECOND AMENDMENT
    by J. Neil Schulman
    If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right ? And if you wanted to know about desert warfare, the man to call would be Norman Schwarzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution ?

    That was the question I asked A.C. Brocki, editorial coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus."

    A little research lent support to Brocki's opinion of Professor Copperud's expertise.

    Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a a distinguished 17-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field.

    He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, "American Usage and Style: The Consensus," has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publisher's Humanities Award.

    That sounds like an expert to me.

    After a brief telephone call to Professor Copperud in which I introduced myself but did not give him any indication of why I was interested, I sent the following letter:


    "I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

    "The text of the Second Amendment is, 'A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.'

    "The debate over this amendment has been whether the first part of the sentence, 'A well-regulated Militia, being necessary to the security of a free State', is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, 'the right of the people to keep and bear Arms, shall not be infringed.'

    "I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."


    My letter framed several questions about the test of the Second Amendment, then concluded:


    "I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance."


    After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the follow analysis (into which I have inserted my questions for the sake of clarity):



    --------------------------------------------------------------------------------

    [Copperud:] "The words 'A well-regulated militia, being necessary to the security of a free state,' contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). The to keep and bear arms is asserted as an essential for maintaining a militia.

    "In reply to your numbered questions:

    [Schulman:] "(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well-regulated militia'?"

    [Copperud:] "(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."

    [Schulman:] "(2) Is 'the right of the people to keep and bear arms' granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right 'shall not be infringed'?"

    [Copperud:] "(2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia."

    [Schulman:] "(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement 'the right of the people to keep and bear Arms, shall not be infringed' null and void?"

    [Copperud:] "(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence."

    [Schulman:] "(4) Does the clause 'A well-regulated Militia, being necessary to the security of a free State,' grant a right to the government to place conditions on the 'right of the people to keep and bear arms,' or is such right deemed unconditional by the meaning of the entire sentence?"

    [Copperud:] "(4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia."

    [Schulman:] "(5) Which of the following does the phrase 'well-regulated militia' mean: 'well-equipped', 'well-organized,' 'well-drilled,' 'well-educated,' or 'subject to regulations of a superior authority'?"

    [Copperud:] "(5) The phrase means 'subject to regulations of a superior authority;' this accords with the desire of the writers for civilian control over the military."

    [Schulman:] "(6) (If at all possible, I would ask you to take account the changed meanings of words, or usage, since that sentence was written 200 years ago, but not take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated."

    [Copperud:] "To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary tot he security of a free state, the right of the people to keep and bear arms shall not be abridged.'

    [Schulman:] "As a 'scientific control' on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,

    "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.'

    "My questions for the usage analysis of this sentence would be,

    "(1) Is the grammatical structure and usage of this sentence and the way the words modify each other, identical to the Second Amendment's sentence?; and

    "(2) Could this sentence be interpreted to restrict 'the right of the people to keep and read Books' _only_ to 'a well-educated electorate' -- for example, registered voters with a high-school diploma?"

    [Copperud:] "(1) Your 'scientific control' sentence precisely parallels the amendment in grammatical structure.

    "(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation."

    Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."

    So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all governments formed under the Constitution from abridging that right.

    As I write this, the attempted coup against constitutional government in the Soviet Union has failed, apparently because the will of the people in that part of the world to be free from capricious tyranny is stronger than the old guard's desire to maintain a monopoly on dictatorial power.

    And here in the United States, elected lawmakers, judges, and appointed officials who are pledged to defend the Constitution of the United States ignore, marginalize, or prevaricate about the Second Amendment routinely. American citizens are put in American prisons for carrying arms, owning arms of forbidden sorts, or failing to satisfy bureaucratic requirements regarding the owning and carrying of firearms -- all of which is an abridgement of the unconditional right of the people to keep and bear arms, guaranteed by the Constitution.

    And even the American Civil Liberties Union (ACLU), staunch defender of the rest of the Bill of Rights, stands by and does nothing.

    it seems it is up to those who believe in the right to keep and bear arms to preserve that right. no one else will. No one else can. Will we beg our elected representatives not to take away our rights, and continue regarding them as representing us if they do? Will we continue obeying judges who decide that the Second Amendment doesn't mean what it says it means but means whatever they say it means in their Orwellian doublespeak ?

    Or will be simply keep and bear the arms of our choice, as the Constitution of the United States promises us we can, and pledge that we will defend that promise with our lives, our fortuned, and our sacred honor ?

    (C) 1991 by The New Gun Week and Second Amendment Foundation. Informational reproduction of the entire article is hereby authorized provided the author, The New Gun Week and Second Amendment Foundation are credited. All other rights reserved.


    --------------------------------------------------------------------------------


    About the Author

    J. Neil Schulman is the award-winning author of novels endorsed by Anthony Burgess and Nobel-economist Milton Friedman, and writer of the CBS "Twilight Zone" episode in which a time-traveling historian prevents the JFK assassination. He's also the founder and president of SoftServ Publishing, the first publishing company to distribute "paperless books" via personal computers and modems.

    Most recently, Schulman has founded the Committee to Enforce the Second Amendment (CESA), through which he intends to see the individual's right to keep and bear arms recognized as a constitutional protection equal to those afforded in the First, Fourth, Fifth, Ninth and Fourteenth amendments.


    J. Neil Schulman may be reached through:

    The SoftServ Paperless Bookstore, 24-hour bbs: 213-827-3160 (up to 9600 baud).
    Mail address:


    J. Neil Schulman
    PO Box 94, Long
    Beach, CA 90801-0094.

  12. #12
    Distinguished Member Array Bob The Great's Avatar
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    wow. That's not a good precendent to set. OSHA regulations (and their "intent") can invalidate state laws? Don't tell anyone, or it won't be long before the NHTSA invalidates concealed carry laws on roadways.

    I hate activist courts.
    "A well-educated electorate, being necessary to the continuance of a free state, the right of the people to keep and read books shall not be infringed."
    Is this hard to understand? Then why does it get unintelligible to some people when 5 little words are changed?

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