Reader John D. writes:
Glenn Reynolds, the Instapundit and a law professor at the University of Tennessee College of Law, has written an incisive paper responding to a devious attack on lawful gun ownership by one Andrew Jay McClurg. Mr. McClurg challenges protections provided under common law and the Protection of Lawful Commerce in Arms Act (15 U.S.C. §§ 7901-7903, PLCAA) to gun owners who are the victims of firearms thefts. Mr. McClurg (above) seems to believe that victims of firearms thefts should be yet further victimized by legal penalties:
The Second Amendment Right To Be Negligent
Andrew Jay McClurg
68 Fla. L. Rev. 1 (2016)
AbstractOnly 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 of guns from most tort claims, including claims against commercial firearms licensees for negligent security leading to theft.
This Article argues that this government-endorsed lack of responsibility results in the under-deterrence of risky conduct that, with reasonable alterations, could avoid substantial intentional and accidental injury costs.
Professor Reynolds explains that the current legal protections the news media and firearms owners enjoy against litigation were a direct response to devious campaigns against these constitutional rights. These subversive campaigns were specifically designed to squelch these rights, despite their valid constitutional foundation:
Permissible Negligence and Campaigns to Suppress Rights
Glenn Harlan Reynolds
Florida Law Review, Forthcoming
In his The Second Amendment Right To Be Negligent, 68 Fla. L. Rev. 1 (2016), Andrew McClurg looks at statutory protections shielding gun owners and sellers from liability in cases of theft, etc. in terms of what he calls a constitutional “right to be negligent” under the First and Second Amendments. In this brief response, I look at that question, and also touch, briefly, on the to-me interesting aspect that the protection enjoyed by publishers under the First Amendment was created by judicial action, while that enjoyed under the Second Amendment was instead the product of legislation. But, in short, I argue that the common explanation for these “rights to be negligent” lies in the fact that both First and Second Amendment rights were, at different times, targeted by litigation campaigns involving cooperation (“collusion” might be too pejorative a word) between private litigants and government actors, where the litigation was focused more on limiting the extent of the rights than on compensating discrete injuries. I also touch upon the separation-of-powers argument for statutory rights to be negligent in, at least, the Second Amendment context.
While the national political landscape changed dramatically this month, it doesn’t mean that threats to the Second Amendment have declined. Mr. McClurg’s devious proposal could easily be adopted by one of the anti-gun states through legislation or a Bloomberg-supported ballot initiative. Note that three of the four anti-gun ballot proposals passed on November 8th.
Many thanks to the Instapundit for spiking Mr. McClurg’s subversion of the Second Amendment.