Pagans MC and the 2nd Amendment

Volokh comments on an interesting case that shows something of the limits of our legal approach to the world.  American laws are based on a model drawn up by businessmen and lawyers, who have a certain way of approaching the world in which business-style arrangements are assumed to be good models for thinking about other social arrangements.  Thus, we have John Locke's concept of a "social contract," which substitutes a business model for the actual facts about how political bonds are formed and maintained; and we have the modern concept of marriage as a sort-of contract rather than a kinship bond, the limits of which we've discussed at length here.

Another limitation is demonstrated by the current case.  The President of a chapter of the Pagans Motorcycle Club (PMC) is a convicted felon who is, therefore, denied exercise of second amendment rights.  Now, he lives in a violent world in which he might come into conflict with the Hell's Angels Motorcycle Club (HAMC), which has been trying to push the PMC out of some of its traditional territory, and so he feels (with some justice!) that he needs protection.

Many men in a situation where the law was putting their lives at risk -- and not merely outlaw bikers! -- would simply have thumbed their noses at the law and done what they felt they had to do.  Our chapter President, however, actually obeyed the law in spite of his felonious past:  he just asked that members of his club who were able to obtain lawful concealed weapons permits do so, and then carry firearms when with him on club business in order to protect him.

The court has held that those club members who did this -- who, remember, were able to pass the criminal background checks required for them to obtain legitimate concealed weapon permits -- broke Federal law.  The reason the court believes this is true is that it accepts the government's argument that the club members were "employed" by the chapter President.  The club members appealed the conviction on the grounds that, actually, they weren't employed by the President at all:  he didn't pay them, for one thing; there was no contract; there were no benefits; and they certainly didn't conceive of it as an employer-employee relationship.  This is because it wasn't an employer-employee relationship!  They weren't his employees, but members of a club.

I frankly think that PMC is in the right here, and the government in the wrong.  The government wants to act on the presumption that PMC is an organized criminal group, but it hasn't proven that.  The government's argument is that 'employed' is a word with several senses, and one of those senses is 'used for a purpose'; but, while that is in some sense true, it's nonsense as an argument in this case.  It's clear that isn't what the statute controls.  It controls employment relationships.

The reason this law doesn't prevent what the government would like to prevent here is that the law was written by people who brought these contract-type assumptions to the problem.  PMC and HAMC and the others are not like corporations (even if, as sometimes happens, they incorporate in order to register trademarks and such).  Their fundamental ethic is not capitalist.  They don't live in the same world as the lawyers and businessmen who wrote the law.  A law built around contracts, employers and employees, and so forth, is naturally irrelevant to what these motorcycle clubs are doing.

What you are dealing with in PMC is the Jomsvikings.  They are a warrior brotherhood bound by a code that separates them from the rest of American society, and which is enforced outside the law by systems of honor backed by violence and threats of violence.

The existence of such an order within American society may be a good thing or a bad thing, depending on how it is used and for what purpose.  My reading on these kinds of clubs is that they are usually a mixture of good and bad.  The old war-band ethic has a lot to recommend it, and some men may find it to be the order that lets them structure a life worth living.

You can see a lot of the mixture of good and bad in this old documentary.  (There are nine parts; watch for Jerry Garcia playing a HAMC wedding, which is conducted on terms that are surely unenforcable in any court -- a fact that might give the lie to the idea that marriage is a contract, since if it were, you could enter into a contract on such terms.)  However you shake out on the idea of good and bad, though, what should be clear to everyone is this:  what they are doing has nothing to do with laws based on contracts and employment.  They're doing something very different from any of that.