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Fla. L. Rev. News

Fla. L. Rev. Forum

Minch Minchin
The Content-Neutrality Doctrine Still Works
Response to R. George Wright, Content-Neutral and Content-Based Regulations of Speech: A Distinction That Is No Longer Worth the Fuss

In a recent piece in the Florida Law Review, however, Indiana University of Law Professor R. George Wright calls for a more drastic approach: that courts should completely abandon content-neutrality. In responding to Professor Wright’s quintet of contentions, this response proceeds as follows: Part I provides context by briefly describing the content-neutrality doctrine and the judicial standards of intermediate and strict scrutiny. Part II analyzes each of Professor Wright’s arguments and suggests that, although they individually are technically accurate, taken together, they lack sufficient justification to jettison content-neutrality. Part III concludes by conceding that although the doctrine is certainly flawed, the most prudent course is to carefully mend it, not cast it into the constitutional dustbin. Read more.





Fla. L. Rev. Forum

Brannon P. Denning
Is There a “Second Amendment Right to Be Negligent”?
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent

Professor McClurg’s thesis is that courts and Congress have either ignored, misapplied, or overridden general tort principles of duty and proximate cause to insulate from civil liability those who negligently store firearms despite what he sees as the eminently foreseeable harm that occurs if those firearms are stolen and later used in crimes. He argues that this “irrational . . . choice” not to hold those gun owners liable is driven by an “unwarranted deference to expansive views of the Second Amendment” and is tantamount to the recognition of a “right to be negligent.” Only the First Amendment confers on private citizens a similar right in certain cases. In this brief commentary, I want to push back on his explicit premises, namely, that the Second Amendment is in the driver’s seat here, and that—assuming the Second Amendment is exerting some kind of gravitational pull on tort law—the unwillingness to hold gun owners liable for the criminal acts of others is irrational. Rather than framing the issue as one of judges and legislators willfully ignoring generally-accepted principles of civil liability, I would argue that courts and legislators have merely created an exception reflecting societal judgments about the value of private gun ownership and the possible consequences to gun owners were tort law permitted indirectly to do what the Second Amendment bars government from doing directly: make it difficult, if not impossible, for individuals to own guns for self-defense. Read more.



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