Banning Guns in a Household as Probationary Condition

Eugene Volokh links to an interesting case in California:

The prosecution had asked that Javier be placed in a juvenile “camp,” “placement in light of appellant’s gang involvement and prior history,” but the juvenile court sentenced Javier to probation and “house arrest” but with a condition: “I want no weapons anymore at your house. Dad, I’m sorry, no weapons, none.” (This apparently referred to “guns or other deadly or dangerous weapons.”) And the Court of Appeal upheld this, on the grounds that this was “reasonable in light of the facts that appellant was on probation at the time of the charged offense for possession of a firearm and had admitted to participating in gang activity.”

This is a difficult question, as to whether this would be constitutional. What makes it questionable is the voluntary nature of the probation. The father could presumably retain his rights and let the kid serve a sentence in juvie. You have a right to a gun, but you don’t have a right to probation. How much can the court condition the exercise of a right on receiving a privilege from the state? One useful way to look at how we condition rights on other state privileges, like free speech for example, versus holding a government job.

This is especially true if you look at this in the free speech context. In some of the Court’s early free speech cases, the courts were pretty deferential to government conditioning the job privilege on limiting free speech rights, with Oliver Wendel Holmes saying, “There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman.”

But modern free speech doctrine does protect a government employees right to free speech. In later cases, beginning in 1967, the Court extended protections for the speech of government employees when they speak on matters of public concern. But it’s important to note that the speech of government employees still does not enjoy the same protections, in terms of the government being able to fire you, that you would enjoy as a private citizen. The government can still fire individuals for certain exercises of what would normally be free speech.

Applied to the gun context, it would seem that the government couldn’t condition not owning a gun in exchange for the privilege of a government job. It strikes me that a probation case involving a juvenile isn’t really that clean an analogy, especially when it was a firearm involved in the original offense. I suspect something like this wouldn’t be constitutional under all circumstances, but under some it might be. This one might be.