Florida Law Review Forum

Allen Rostron
Guns, Speech, and Breathing Space
Response to Andrew McClurg, The Second Amendment Right to Be Negligent

In The Second Amendment Right to Be Negligent, Professor Andrew McClurg astutely observes that current law provides the constitutional right to be negligent in two important realms. He first notes that the Supreme Court has construed the freedom of expression protected by the First Amendment as including a right to be negligent in speaking about public officials, public figures, and issues of public interest. Professor McClurg then argues that a constitutional right to be negligent has emerged under the Second Amendment as well, with courts and legislatures essentially creating a right to be negligent in the sale and storage of firearms. Professor McClurg’s focus is squarely on the Second Amendment right to be negligent, so his Article briefly mentions the parallel First Amendment right but does not discuss it in great detail. In this response to the Article, I will explore the relationship between the rights a bit further and offer a few thoughts on the relative merits of the First Amendment right to be negligent and its Second Amendment cousin. Read more.