Fla. L. Rev. Forum

Glenn Harlan Reynolds
Permissible Negligence and Campaigns to Suppress Rights
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent

Professor Andrew McClurg has written interestingly about what he calls the “Second Amendment right to be negligent,” under which, he says, gun owners, sellers, and manufacturers escape liability for guns that, through theft and other means, fall into the hands of criminals, chiefly thanks to a federal statute, the Protection of Lawful Commerce in Arms Act. In passing, Professor McClurg notes that only one other item in the Bill of Rights, press freedom under the Supreme Court’s decision in New York Times v. Sullivan, enjoys a similar “right to be negligent.” He is right that other Bill of Rights provisions enjoy no such additional protection (though one might argue that under the Fourth and Fifth Amendments the government enjoys a “right to be negligent” via the doctrine of good-faith immunity). But Professor McClurg’s article understandably does not digress into the interesting question of why, exactly, the First and Second Amendments provide protection against tort claims in a way that other constitutional rights have not. In this brief response, I will look at that question, and will 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. Read more.