About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

68 Fla. L. Rev. 1 (2016)
The Second Amendment Right to Be Negligent

handle is hein.journals/uflr68 and id is 11 raw text is: Florida Law Review Founded 1948 VOLUME 68 JANUARY 2016 NUMBER 1 THE SECOND AMENDMENT RIGHT TO BE NEGLIGENT Andrew Jay McClurg* Abstract Only two constitutional rights-the First and Second Amendments- have a realistic capacity, through judicial interpretation or legislative action or inaction, to confer a right to be negligent on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech. This Article asserts that through both common and statutory law, the United States has enshrined a de facto Second Amendment right to be negligent in many aspects of making, distributing, and possessing firearms, the only legal product designed to inflict what the tort system is designed to prevent. Explaining that it is a microcosm of a much larger issue, this Article focuses on one area: allowing access to guns by criminals through theft. Hundreds of thousands of guns are stolen each year from individuals and commercial sellers. By definition, they all go directly to criminals. A substantial percentage of guns used in crime were previously stolen. Nevertheless, the common law has conferred near complete immunity on gun owners and sellers who fail to secure guns from theft when they are subsequently used to cause harm. This occurs despite frequent judicial pronouncements that the risk of firearms demands the highest degree of care in their use and keeping. To accomplish this result, courts ignore or mischaracterize fundamental scope of liability principles, rarely even reaching the question of whether reasonable care was exercised. On the statutory front, not only have Congress and most states failed to mandate firearms security measures, Congress has-in the name of the Second Amendment-given express protection of the right to be negligent, most prominently in the form of the Protection of Lawful Commerce in Arms Act. The Act immunizes manufacturers and sellers * Professor and Herbert Herff Chair of Excellence, University of Memphis Cecil C. Humphreys School of Law. Hearty thanks to Brannon P. Denning for reading and commenting on a draft and to Steven Mulroy, Eugene Shapiro, and Eugene Volokh for their input. I am also grateful to Quynh-Anh Dang and Kelly Masters for their outstanding research assistance.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most