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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


                       Andrew  Jay McClurg*


   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.

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