Legal Commentary

When Are Bodyguards for Foreigners ? or Mentally Disturbed or Drug-Addicted Rock Stars ? Allowed to Possess Guns?

By Eugene Volokh

18 U.S.C. § 922(h) provides that ?It shall be unlawful for any individual, who to that individual?s knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment? to possess a gun. (It also requires a supposed connection to interstate or foreign commerce, but that?s almost always satisfied.) Subsection (g) bars gun possession by, among others, felons, fugitives from justice, illegal aliens, violent misdemeanants, and people under domestic restraining orders. But it also covers people admitted to the U.S. under a nonimmigrant visa ? for instance, foreign rock stars or businessmen who visit for work ? as well as unlawful users of controlled substances and people who have ?been committed to a mental institution.?

So say that a foreign rock star, or an American rock star who you know uses drugs, or some rich or famous person who has been in a mental institution, or for that matter some rich or famous person who is under a domestic restraining order wants you to be his armed bodyguard. Assume that you would otherwise be legally allowed to be armed, and to be a bodyguard. What do you have to do to avoid violating § 922(h)?

Would it suffice for you to go to work for a bodyguard agency that assigns you to protect the person, or would you still be ?employed for? that person (emphasis added)? [Sentence added:] Or what if you work for the rock star?s managers, but you go where the rock star goes and follow ordinary day-to-day instructions from the rock star; are you still ?employed for? that person even if you aren?t formally employed by the person? 

What if you are working as a security guard or a bodyguard for a corporation that is solely owned by a foreigner who is in the country on a nonimmigrant visa, or by someone who has been in a mental institution, or by someone who is subject to a domestic restraining order. Are you then ?employed for? the owner, or are you not treated that way because you?re just employed by the owner?s corporation?

I understand the value of the statute in prosecutions of members of organized criminal gangs; the government has been using it to prosecute members of the Pagans Motorcycle Club, who were apparently employed by the PMC?s ?national vice-president,? a convicted felon (though of course, if there?s enough evidence, those people could be prosecuted for their other crimes and for conspiracy to commit crimes). I just wonder to what extent it also precludes much more innocent ? and valuable ? arrangements as well.

Full post as published by The Volokh Conspiracy on July 13, 2010 (boomark / email).