Florida Law Review Forum

Richard C. Ausness
Gun Control Through Tort Law
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent

I have been asked to respond to an article by Professor Andrew Jay McClurg that recently appeared in the Florida Law Review. In this article, the author, a longtime advocate of firearms regulation, argues that owners and commercial sellers of firearms who negligently fail to secure them against theft should be held liable when persons are killed or injured by firearms used in the commission of a crime. Professor McClurg’s liability proposal is more traditional and narrowly focused than other theories. In the first place, because it is based on negligence, this liability theory requires that the defendant be at fault in some way. Second, it does not affect gun manufacturers at all, but instead imposes liability on gun owners and sellers when they fail to secure their weapons properly and when this failure enables criminals to steal guns and injure third parties while committing violent crimes. However, I am skeptical about whether the imposition of tort liability is the best solution to the problem of gun violence. Read more.