Contributor, The Volokh Conspiracy

A dealer arranges handguns in a display case before a show in Little Rock in February. (Danny Johnston/Associated Press)

[UPDATE, Sept. 30, 2015: The D.A.’s office has just rescinded the policy.]

The Nassau County District Attorney’s office bars prosecutors from having a handgun, even at home:

[A]ssistant district attorneys are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney. Any exception to this policy must be in writing and approved by the District Attorney.

I asked the office about the reasons for the policy, and its answer was:

Our practice of asking prosecutors to not possess handguns is to ensure the safety and comfort of staff, victims, and witnesses, and is consistent with other district attorney’s offices in the New York City metropolitan area.

A pretty good example of just how anti-gun some government organizations are, it seems to me. It’s true that the government acting as employer has broader powers to restrict employee behavior — even off-duty exercise of constitutional rights — than the government generally has with regard to other citizens. Still, these powers are not unlimited and require a substantial justification.

For instance, while the Supreme Court has upheld some limits on speech by government employees, it has generally required a showing that the speech is likely to substantially interfere with government employer operations, and that this interference outweighs the value of the speech. (This is why the Court has upheld restrictions on political campaign activity by government employees; Nassau County has such a restriction.) And while the Court has allowed broader powers to restrict speech on matters of purely “private concern,” the underlying rationale of that decision — which is that allowing a First Amendment claim whenever an employment decision was made based partly on private-concern speech would turn a vast range of employment decisions into federal lawsuits — doesn’t apply to the right to keep and bear arms (at least off the job), since very few government employment decisions would normally turn on the exercise of that right. Indeed, it’s hard to see how a “public concern”/”private concern” distinction would apply to rights other than speech, such as gun possession, abortion, contraception, sending one’s children to private schools and so on.

And the DA’s office reasoning strikes me as far from an adequate justification. As best I can tell, the theory is that the DA’s office is worried that prosecutors will come in to the office in a rage and shoot up the place. What kinds of people is the DA’s office hiring? Are the chances of one of its employees, trusted to make daily decisions about citizens’ liberties and public safety, snapping and turning to murder so high that they outweigh employees’ constitutional rights to protect themselves and their families at home? Or perhaps it’s worried that prosecutors would deliberately criminally carry a gun on their persons (gun carry permits are very hard to get in New York) and would criminally threaten victims and witnesses, in which case it’s hard to see why the prosecutors would comply with the DA’s policy but not with the law.

Another twist, beyond the Second Amendment: It’s possible that a New York statute bars this policy from being enforced against handgun collectors. N.Y. Labor Code § 201-d provides, in relevant part, the following:

1 … b. “Recreational activities” shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material; …

2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: …

c. an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property ….

3. The provisions of subdivision two of this section shall not be deemed to protect activity which:

a. creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest ….

Handgun collection is a “lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purpose”; it falls into the subcategory of “hobbies.” It’s conducted “off of the employer’s premises and without use of the equipment or other property.” And whatever the DA’s office worries about prosecutors killing their co-workers might be, those worries don’t fall within the category of “material conflict of interest.” (The DA’s office didn’t respond to my inquiry about whether its policy is consistent with N.Y. Labor Code § 201-d.)

So handgun collectors would likely be protected by the statute as well as the Second Amendment. The same would be true for recreational handgun target shooters, if the ban on “possessing” handguns is read broadly enough to cover possessing of a rented or borrowed gun for the duration of the activity. And ordinary handgun owners, who are interested in self-defense rather than collecting, would be protected just by the Second Amendment.