I’m sure that everyone who follows the NFL has surely heard more than they ever cared to about the recent Plaxico Burress-shoots-himself story. And along with the discussion about his particular situation came a broader discussion about NFL players carrying handguns, and the NFL’s league-wide gun policy, or lack thereof. Unfortunately, one thing that I have seen repeated over the airwaves (I’m talking to you ESPN) is the notion that the NFL is somehow limited in what it can do about its players carrying handguns by the Second Amendment.  

Plaxico and his rights

This idea is simply rubbish. The NFL can contractually obligate its players to refrain from carrying handguns without running afoul of any constitutional rights. The reason is that the NFL can never, no matter how hard it tries, violate the constitutional rights of anyone. The most basic of constitutional principles is that the constitution protects people from governmental action, not those of other private individuals or organizations, such as the NFL.

In order for anyone to have a legitimate claim that their constitutional rights were violated, the conduct complained of must have been engaged in by a “state actor” (like the police, the FBI, or the IRS). Absent state action, there simply cannot be a constitutional violation of any sort – with some very limited exceptions where private citizens are acting on behalf of a state actor (like if the police asked your landlord to go into your apartment and confiscate illegal drugs).

So while there are interesting public policy and labor issues surrounding a potential NFL gun policy that it will negotiate with the Players’ Union, there are no constitutional issues anywhere in the picture. The NFL can mandate that players refrain from carrying guns just the same as it can mandate that players refrain from taking steroids.

For a NY Giants fan’s (and criminal defense attorney’s) perspective on the entire fiasco, check out Simple Justice.