Jottings By An Employer's Lawyer

Friday, February 20, 2009

OSHA Preemption Fires a Blank in Oklahoma Gun Law Case


Yesterday the 10th Circuit reversed a district court's holding that the Oklahoma statute requiring employers to allow employees to bring guns to the employer's parking lot was preempted by the general duty clause of OSHA. Ramsey Winch, Inc. v. Bradley (10th Cir. 2/19/09) [pdf].

Although I had liked the result in the district court, I had both doubted that the rationale would hold up and also was concerned about creating too broad a use of the general duty clause. See my earlier post, Oklahoma Gun Law Case and the Law of Unintended Consequences.

The 10th Circuit also dealt with two constitutional arguments, that the statute resulted in an improper "taking" and was impermissibly vague, but they were no more successful than the OSHA preemption one.

I think the 10th Circuit has it right when it says that this is basically a political argument:

We need not decide the long-running debate as to whether allowing individuals to carry firearms enhances or diminishes the overall safety of the community.

A statute modeled on Oklahoma's is pending in the Texas legislature. See, Can't Ignore It Any Longer - The Texas Legislature Is In Session. Yesterday's decision makes the path for what it will take to avoid having such a statute clearer -- strong political action. Unfortunately, it does nothing to make it easier.

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