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.

In the past, believing that existing federal and state laws were inadequate to halt the spread of gun-related deaths and injuries, proponents of stricter gun control measures proposed a number of tort liability theories to supplement these laws. I will briefly review some of these theories in order to provide a background for my discussion of Professor McClurg’s proposal. In the early days, when the emphasis was on controlling cheap handguns known as “Saturday Night Specials,” gun control advocates urged that these firearms be subjected to strict products liability. However, the strict liability approach usually failed because plaintiffs were unable to prove that the handguns in question were defective. Proponents of gun control then endorsed a broad risk-utility or product category liability theory, which characterized products as defective if their overall social costs outweighed their social benefits. After some initial successes, this theory was also rejected. Finally, some gun control proponents urged courts to treat handgun use as an ultrahazardous or abnormally dangerous activity, but this suggestion was not particularly well received either.

Recently, the focus has shifted from cheap handguns to military-style assault rifles. This, in turn, has led gun control advocates to recast existing liability theories such as negligent entrustment and public nuisance and to formulate new ones such as negligent marketing. Negligent entrustment imposes liability on one who supplies a product to another when he or she has reason to suspect that the recipient will not be able to use it safely. Another theory is public nuisance, which allows states and cities to recover from gun manufacturers for health care, law enforcement and other expenses incurred by the government because of the defendant’s irresponsible marketing practices. This theory has been accepted in some states and rejected in others. Negligent marketing is a novel theory that emerged during this period. Negligent marketing seeks to impose liability for promotional and marketing practices that facilitate access to guns by criminals and other unsuitable persons. However, so far courts have been reluctant to hold gun manufacturers or sellers liable under this theory.

In contrast, Professor McClurg’s liability proposal is more traditional and narrowly focused than the approaches discussed above. 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.