Excerpted From: Raneta Lawson Mack, This Gun for Hire: Concealed Weapons Legislation in the Workplace and Beyond , 30 Creighton Law Review 285 (February, 1997)(168 Footnotes) (Full Document)
During the past decade, the proposed enactment of concealed weapons legislation (“CCW laws”) has sparked heated legislative debate and contentious public discussion in many states. Proponents of the legislation, relying largely upon Second Amendment constitutional guarantees, argue that law-abiding citizens have a right to carry weapons to protect themselves and their families from violent predators. In contrast, opponents of CCW laws raise the specter of an impending return to a “Wild West” mentality which would invariably lead to an increase in gun-related violent crimes. Thus, the pre-enactment debate focuses primarily upon the dichotomous relationship between the right to individual and community protection (individual rights theory) and the state's right to control private weapon ownership (collective rights theory). Once the legislation is enacted, however, and the proverbial “smoke clears,” the debate then shifts to the numerous complex implementation concerns that are the inevitable consequence of such controversial legislation. More specifically, although CCW laws authorize law-abiding citizens to legally carry concealed weapons, many of the statutes fail to explicitly address the rights of employers and business owners in light of this new legislation. Thus, employers and business owners are left in a quandary concerning the practical implications of dealing with a lawfully armed citizenry.
Prior to enactment of CCW legislation, employers and business owners could prohibit weapons on their premises on the assumption that such restrictions reasonably protect the safety of employees and other invitees on the premises. With the enactment of CCW laws, however, these assumptions are themselves being challenged as unreasonable. The principal argument against banning lawfully concealed weapons in certain locations is that CCW laws are enacted, in part, to give citizens an extra measure of protection against the criminal element. Consequently, banning weapons on certain premises makes those locations potential criminal targets and conceivably reduces safety rather than increasing it. In light of these arguments and challenges, employers and business owners must now assess the likelihood of liability from various perspectives. First, if concealed weapons are permitted on the premises, what is the employer or business owner's potential liability if an accidental or intentional shooting occurs on the premises? In contrast, if concealed weapons are prohibited on the premises, what is the potential liability for acts of violence that could have been prevented if lawfully carried weapons had been available to individuals on the premises? Additionally, does an employer or business owner incur any additional responsibility for the safety of employees and invitees if lawfully carried weapons are prohibited on the premises? Finally, can employers and business owners develop and implement concealed weapons policies that safely and effectively strike a balance between the individual right of self-defense and the collective right to safety and security in the employment and business environment?
This Article explores each of those issues. Specifically, in Part II, the Article provides a brief historical discussion of the right to bear arms and the right of self-protection in order to appropriately contextualize the current significance of those rights in the concealed weapons debate.
In Part III, the Article considers selected concealed weapons statutes that exemplify how various states have chosen to address the issue of concealed weapons.
Part IV focuses on liability and practical implementation concerns that arise in the employment and business contexts once CCW laws are enacted.
Finally, Part IV also proposes specific implementation recommendations for employers and business owners seeking to maximize the potential for safety while simultaneously minimizing the potential for liability in an era of expanding concealed weapons legislation.
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The proliferation of concealed weapons legislation has created numerous complex legal and practical difficulties for employers and business owners. Although citizens with permits may lawfully carry concealed weapons, it is likely that courts will uphold the rights of private property owners to prevent exercise of the right to carry if the employer, business or private property owner chooses to prohibit concealed weapons on the premises.
Because of the increase in workplace violence and recent OSHA guidelines, employers should consider adopting and effectively implementing and enforcing “no weapons” policies in the workplace predicated on the employer's legal and common law duty to provide a safe workplace.
Similarly, business owners should adopt a “no weapons” policy in an effort to exercise reasonable care in providing for the safety and security of invitees. However, business owners must carefully calculate the cost and practical feasibility of implementation procedures to determine if the benefits outweigh the disadvantages of such a policy.
Associate Professor of Law, Creighton University School of Law.