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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.

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  1. The “right to be negligent”, while a ludicrous phrase, is covered by Article I Section 8, where Congress is given the authority to discipline the militia. Negligent storage of firearms such that criminals can get at them easily is NOT a mark of a disciplined militia, so Congress has the authority to establish standards.

    But the penalties ought not be criminal, rather violations on the order of traffic tickets.

    • If what “bad” you’ve supposedly done, is not “bad” enough to warrant throwing full criminal process and a jury of 12 at, it’s not bad enough to harass you over. The US justice system worked remarkably well, back when and where the only two possible outcomes of the penalty debate, was hang and not hang. The built bias towards freedom, in what at least used to pretend to be a free society, ought to be strong enough that unless you’re capital B A D BAD, you’re left alone to do you thing. Anything else, is just lightly obfuscated lawyer welfare.

      As for holding some dude in an Australian mining camp “liable” for contributing to mining ore that he may well know will be turned into metal used to build a Boeing which may be hijacked and used to crash into a New York tower…… Well, there’s the lawyer welfare again…. Ditto for holding some poor sap liable for an overdose, just because he wore an expensive enough watch to allow the junkie who robbed him to afford to OD.

      If you keep guns in your house, with your doors generally locked when not there for any length of time, you’re not “negligent” by any even remotely reasonable standard. Someone else is breaking the law by stealing it. The buck stops with the thief, as far as liability goes. Otherwise, any government barring you from landmining the area around your house, and booby trapping it, is surely at least as responsible for the theft as you are.

    • If you take that entire statement in Art 1 Sect 8, see below, the disciplining of the Militia is specifically in context of their time of service not day-to-day existence of a person. The writers of the Constitution would be revolted by the idea of the government reaching into peoples homes like you suggest.

      “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States,”

      • Nope. You’re mixing the clauses; organizing and disciplining are separate and different from governing while under federal orders. This is evident from history, especially the several militia acts.

    • If you accept the concept that something can be labeled a crime, and therefore punished, you had better realize that automatically enables those punishments to escalate until that “something” stops. That is why burning a plant has put people in prison for decades, instead of a reasonable “traffic fine”. If you accept that for being a crime victim, don’t whine to me when the penalty is edged more in the direction of life in prison. Being a crime victim is *NOT* a crime, and should not be accepted as such without armed rebellion.

      • Failure to securely store weapons not in use would not be a crime, it would be a militia infraction unrelated to any crime committed by a barbarian who made off with your weapon. As a matter of proper discipline, the infraction should be dismissed if the failure were corrected.

        Of course, if the government wants to exercise that Article I authority, the expense of proper storage should be a tax credit, since it serves the government interest in having a well-regulated militia available to call to federal service — like, $500 per weapon suitable for militia use, up to say five weapons.

  2. BTW, the Republicans should take the opportunity to fix the LCIF Act and make it what it should have been in the first place: the Lawful Commerce in Manufactured Goods Act, specifying that no manufacturer can be held liable for the results of someone using their product as it was designed but in a manner harmful to others, regardless of whether it’s a gun, a wine bottle, a car, a gold club, or whatever.

    • Unnecessary except in the context of firearms. There is no theory of liability for any products excepts guns and alcohol when the product is not inherently defective by design or manufacture when used in a criminal manner. IN almost all circumstances, the criminal act of a third person is a “superseding” or intervening cause which exonerates the seller/manufacturer. No one tries to hold manufacturers of hammers, for example, for the negligent or intentional misuse of that product when the use causes injury but the hammer doesn’t break. Clinton was seeking to justify holding gun makers liable for the criminal misuse of firearms. The litigation strategy by plaintiffs’ attorneys was not necessarily win but to make litigation so expensive that gun makers would be likely to settle. Some were likely more motivated by the desire to destroy the industry, but those were in the minority. Still, the costs to makers were in the millions of dollars.

      • I disagree. Greedy lawyers have and will go after anyone and anything they can exploit to make a buck. Including hammer manufactures.

        Edit: I’m not insinuating that all lawyers are greedy, or that lawyers should be banned for the children. 😉 just that bad ones are dangerous.

        • Joel, I disagree. No one has ever suggested that anyone might *win* such a lawsuit, including the Congress which passed the law. The problem being addressed was rich jackasses like Soros and Bloomberg bringing suit after suit after suit, with the goal of bankrupting firearm firms with legal fees, without ever winning one case. Ruger does not have the assets to go against a Soros, they may as well just fold.

        • BTW, the way to actually end such nonsense is “loser pays”, after which pursuing *any* lawsuit which has no chance of success could bankrupt even Soros and Bloomberg combined, assuming the intended victim understood that every dollar he spends will be a disincentive for further attempts, so he will spend BILLIONS on the defense, even though maybe $100,000 would be adequate to succeed.

  3. I still don’t understand how we could make firearms manufactures responsible for firearms deaths. That precedent would make automobile manufactures liable for auto accidents and deaths, alcohol manufactures liable for drunk driving deaths, and every food or beverage company responsible for us being fat.

    • No, no, it’d be the utensil makers who were liable, not the food manufacturers.

      Your analogy is akin to the drunk driver suing Exxon for making the gas in the car.

    • So, who do we string up for gun free zones that account for 100% of mass shooting targets of opportunity? Or “may issue” states that delay permits so long that people are killed by stalkers, crazies, and deranged spouses?

      What about all the bad shootings and excessive use of force by police officers that are obviously unfit for their job? Or what about our terrible justice system that takes years to rule on simple cases and that consistently hears and has cases where criminals can sue victims that defend themselves?

      And the guy in the article wants to target law abiding gun owners? Priorities.

  4. The First Amendment gives Mr. McClurg the right to make stupid statements and he has opted to exercise that right. Better yet, he should exercise the Fifth, which gives him the right to remain silent.

  5. A lawyer showing his disdain and disapproval for both the first AND second amendments? This is my shocked face.

    Quislings will never be in short supply.

  6. There is an overabundance of F’d up countries that allow neither free speech and the RTKABA if you can’t handle the sh_t here run your fing happy a_ _ to one of those other places.

  7. Maybe he could take the ATF to task for FnF and some CLEO’s who have a habit of “losing inventory” before so generously attacking responsible citizens and trampling rights.

  8. …this Article focuses on one area: allowing access to guns by criminals through theft.

    STOP. RIGHT. THERE. I don’t need to read another word to know that this thing named Andrew McClurg is a vicious, evil-minded piece of excreta whose legal opinions are worth less than the crap that lodged in the s-bend last time my toilet got McClogged.

    Gun owners “allow access” to stolen weapons the same way women provide sex to rapists. Unwillingly. Through a process in which they’re victimized and violated. (That’s why we call rapists and thieves “criminals.”) But hey, that dumb chick shouldn’t have worn that miniskirt, right? They’re all asking for it. They should know better than to dress like that.

    I bet the legal eagles in Daesh would appreciate the way this McClurg guy thinks.

  9. The base problem with Mr. McClurg’s assertion is that it’s 100% bullshit.

    If, one winter morning I start my car to let it warm up, realize I’ve forgotten something in the house and come back to find my car stolen I am not liable in any way for what the criminal does with that car because I cannot be held liable for the actions of others which are illegal. This applies to anything else that might be stolen from me. A can of gas, a baseball bat, a machete etc.

    Regardless of how the item was stored at the time of the theft the simple fact is that another person undertook a positive action to acquire that item illegally and then engaged in another positive action, or a series of positive actions to bring harm to another person. Even if I left an AK lying in my front yard, legally speaking, I have the legal expectation that it would be there upon my return because for someone to enter my property without my permission and to take my property without authorization is illegal twice over. I am under no legal obligation to prevent criminal activity (nor are the cops apparently), nor am I under any legal obligation to prevent criminal activity that might subsequently arise and involve items criminally removed from my legal possession.

    Mr. McClurg’s argument rests on a foundation of sand. There is no legal, moral, ethical or other obligation for me to compensate the victim of a gun crime when the gun in question was illegally obtained via theft from me than there is an obligation for me to compensate the victims of people run over by someone who stole my car, got drunk and ran over 20 children at a crosswalk.

    The basis of the legal system in this country is that people are responsible for their own actions when those actions are malum in se. You are not responsible for the actions of other people and since a theft takes two people to tango, a victim and a perpetrator the perpetrator is 100% at fault because they 1) committed a criminal act by stealing and then 2) committed another criminal act via violent and illegal use of what they had previously stolen. Because the original owner cannot control the actions of the criminal, they are not in any way liable for the criminal’s actions.

    If Mr. McClurg wished to be logical he would argue that not only should the legal gun owner be punished for failing to prevent the crime that led to a series of unfortunate events, but that the police be held liable too because, technically that’s kinda their job. Because he doesn’t even attempt such an argument it’s clear he has no interest in anything other than generating agitprop and he should be ignored for the retard that he is.

    • “The base problem with Mr. McClurg’s assertion is that it’s 100% bullshit.”


      BINGO! You win the Internet for the day.

    • “I am under no legal obligation to prevent criminal activity (nor are the cops apparently),”

      LOL, but brings up a good point. All we should really ever expect from police is the apprehension of those suspected of *already* committing a crime. They should never be expected to *prevent* a crime. That is up to the targeted individual.

    • Normally I agree with everything you post
      I would even say that ethically I agree with you
      However you are not allowed to make an “attractive nuisance ”
      Any reasonable person would know that Leaving that loaded AK on your lawn could lead to some kid picking it up and shooting himself or someone else
      Leaving it loaded inside your locked house is different than leaving it out on the lawn
      Even though he did trespass on your property and steal your gun, I would argue that you were negligent by leaving it loaded on your lawn

  10. I’m hard pressed to see any negligence on the part of a victim of theft, whether it’s a gun, a car or a bottle of Oxy.

    I’m hard pressed to see any negligence on the part of Smith & Wesson or Glock when a gun that they legally sold is misused.

    But I can see the negligence — in fact, I see the intentional harm — by tinhorn politicians who try to steal guns from good people while they make fortunes from gangs, from Bloomberg and from the Joyce Foundation.

  11. Suppose your car is stolen. Maybe, you left it in your driveway with the keys in the ignition. Maybe, you took the keys with you and left the car locked inside a fenced parking lot. Are you liable if a thief has an accident while joyriding or running from the police? As far as I know, you’re not. The same should apply to thefts of firearms.

    That doesn’t mean you should be free of all responsibility. If you leave a young child alone in your car, where he might be able to start it rolling, you are guilty of child neglect. I can see applying the same principle to leaving a firearm within reach of a child too young to handle it safely.

    • If a child is your responsibility, and is injured due to your action or inaction, child neglect or abuse could be a valid charge, however the injury occurs, I can agree with that. Guns, cars, swimming pools, or scissors do not need to be brought into the discussion.

  12. Stealing guns is “defacto” a crime so focus on the criminal. Make it a capital offense and guns would not be stolen , or at least we would have fewer criminals eventually.

  13. I do not allow criminals access to my property. Any of it. Trying to blame me for having something they want is exactly like blaming the rape victim because she dressed in something provocative.

    Every anti-rights and anti-gun idiot who tries this line of thought needs to be called out as the pro-rape victim blaming fools they are.

  14. “…. allowing access to guns by criminals through theft.”

    In the same sense that we allow drunk drivers to kill people by not banning motor vehicles, I assume.

  15. I’ve seen this progressive angle of attack before, and I will say this.

    How is holding a gun-owner responsible for the theft of his arms, Not the moral equivalent of holding a victim of rape responsible for their rape? That is to say, in both cases the victim of a crime is held more responsible, if not singularly responsible, for the crime comitted against them.

    I used the rape analogy specifically because progressives typically use it as an example of victim-blaming, and rail against the practice. That a typical progressive will support the former and protest the later is classic cognitive dissonance in action.

    It seems to me Progressivism is sometimes best described as the politically expedient reassignment of agency.

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