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University of Tennessee Legal Studies Research Paper


In his The Second Amendment Right To Be Negligent, 68 Fla. L. Rev. 1 (2016), Andrew McClurg looks at statutory protections shielding gun owners and sellers from liability in cases of theft, etc. in terms of what he calls a constitutional “right to be negligent” under the First and Second Amendments. In this brief response, I look at that question, and 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. But, in short, I argue that the common explanation for these “rights to be negligent” lies in the fact that both First and Second Amendment rights were, at different times, targeted by litigation campaigns involving cooperation (“collusion” might be too pejorative a word) between private litigants and government actors, where the litigation was focused more on limiting the extent of the rights than on compensating discrete injuries. I also touch upon the separation-of-powers argument for statutory rights to be negligent in, at least, the Second Amendment context.

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