The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Foster parents can't lawfully carry guns in Oklahoma around their foster children
If you want to be a foster parent in Oklahoma, or to be a prospective adoptive parent, you need to sign a "Weapon Safety Agreement," which provides:
To ensure the safety of a DHS custody child residing in the foster or adoptive family home, the following safety measures for weapons are required:
1. Weapons are maintained in locked storage while in the home or when not in use.
2. Ammunition is maintained in locked storage separate from weapons while in the home or when not in use.
3. Weapons are not carried on a person's body while the child is present unless the foster or adoptive family applicant or parent's employment requires it when on-duty.
4. Weapons are unloaded or disabled and stored in a locked container while in an automobile.
5. Direct adult supervision is required when the OHS custody child is around a weapon.
6. The DHS custody child is not left unsupervised when a weapon is in the presence of or accessible to a child….
One reason law-abiding adults get handgun-carry licenses, of course, is to defend not just themselves but also their families. But the agreement bars foster parents and prospective adoptive parents who have such licenses from having guns available to defend either themselves or their foster children.
Stephen and Krista Pursley, who have fostered 34 children in Oklahoma are suing (with the help of the Second Amendment Foundation). They argue (among other things that) this violates the Second Amendment. They argue it violates the Oklahoma Constitution, which provides,
The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.
And they argue it violates Oklahoma carry licensing law, which provides (paragraph breaks added),
The Legislature finds as a matter of public policy and fact that it is necessary to provide statewide uniform standards for issuing licenses to carry … handguns for lawful self-defense and self-protection, and further finds it necessary to occupy the field of regulation of the bearing of concealed or unconcealed handguns to ensure that no honest, law-abiding citizen who qualifies pursuant to the provisions of the Oklahoma Self-Defense Act is subjectively or arbitrarily denied his or her rights….
Subjective or arbitrary actions or rules which encumber the issuing process by placing burdens on the applicant beyond those requirements detailed in the provisions of the Oklahoma Self-Defense Act or which create restrictions beyond those specified in this act are deemed to be in conflict with the intent of this act and are hereby prohibited.
The Oklahoma Self-Defense Act shall be liberally construed to carry out the constitutional right to bear arms for self-defense and self-protection….
I think that a state may impose some conditions on foster parents - with whom the state places children and whom the state compensates for some of the costs of raising children - just as it may impose some conditions on state employees. And those conditions may sometimes, I think, require foster parents (like employees) to give up some of their normal rights while "on the job," on pain of losing the foster parent status (or employment). But, as with other rights (such as the First Amendment), I think Second Amendment rights and similar state constitutional rights don't vanish altogether; at the very least, the government should have to show that there is a real factual basis for the restriction. Perhaps the Oklahoma Department of Human Services can show that foster parents' licensed handgun carry around their children really is on net dangerous; but I doubt it, and at the very least I think that in this case the department should be required to show this, as to the Second Amendment claim.
But the Pursleys might just win on the statutory claim, with no need to reach the constitutional claim. The statute does seem to leave it to the state legislature, not to municipalities or to executive departments, to decide when gun carrying should be restricted. The statute makes that even more explicit as to municipalities, but I think the quoted material also suggests the same as to agencies such as the Department of Human Services. Query, by the way, whether the Oklahoma Constitution's provision that "but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons" suggests that bodies other than the legislature can't regulate the carrying of weapons.
In any event, an interesting case. Compare the Massachusetts foster parent no-spanking-even-of-your-own-children case, though of course there are major differences between the matters.
By the way, the Oklahoma State Bureau of Investigation people tell me there are 239,490 concealed carry permits in Oklahoma; since I suspect that most people have at most one permit per household, let's say that's about 180,000 households. The census reports that there are about 1,450,000 households in Oklahoma, so about 1/8 of all households have someone with a concealed carry permit.
UPDATE: Just to make clear, I assume that "adoptive family home" here refers just to a home where the parents are seeking to adopt the child living with them; once the child is adopted, I take it that the parents would have the same rights as biological parents do. If the Department sought to regulate parents' gun carrying around their finally adopted children, that would pose even more serious problems, I think.
