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.