Florida Law Review Forum

David Hemenway
Gun Exceptionalism
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent

Gun violence is a major American public health problem. In the most recent decade for which there are good data (2005-2014), on an average day in the United States, over 290 people were shot, and more than eighty-five died. More American civilians were killed by guns in that decade than American military personnel were killed in battle during World War II. In the United States, virtually every gun starts out as a legal gun, manufactured legally and initially sold by a federally licensed retailer that, at least since 1994, is required to conduct a federal background check on the purchaser. Yet each year hundreds of thousands of guns “leak” into the secondary gun market where individuals who could not pass the federal background check can obtain firearms. Guns get into hands of those who cannot pass a background check in a variety of ways. These ways include the sale of used guns without a background check (e.g., at gun shows, flea markets and over the internet), straw purchases, and gun theft. It is estimated that hundreds of thousands of guns are stolen each year. Professor Andrew McClurg makes the case that U.S. negligence laws, with respect to firearm storage, are instrumental in allowing this huge level of gun theft. Read more.