The Second Amendment Right to be Negligent

Only two constitutional rights—the First and Second Amendments—have a realistic capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech. This Article asserts that through both common and statutory law, the United States has enshrined a de facto Second Amendment right to be negligent in many aspects of making, distributing, and possessing firearms, the only legal product designed to inflict what the tort system is designed to prevent. Explaining that it is a microcosm of a much larger issue, this Article focuses on one area: allowing access to guns by criminals through theft. Hundreds of thousands of guns are stolen each year from individuals and commercial sellers. By definition, they all go directly to criminals. A substantial percentage of guns used in crime were previously stolen. Nevertheless, the common law has conferred near complete immunity on gun owners and sellers who fail to secure guns from theft when they are subsequently used to cause harm. This occurs despite frequent judicial pronouncements that the risk of firearms demands the highest degree of care in their use and keeping. To accomplish this result, courts ignore or mischaracterize fundamental scope of liability principles, rarely even reaching the question of whether reasonable care was exercised. On the statutory front, not only have Congress and most states failed to mandate firearms security measures, Congress has—in the name of the Second Amendment—given express protection of the right to be negligent, most prominently in the form of the Protection of Lawful Commerce in Arms Act. The Act immunizes manufacturers and sellers of guns from most tort claims, including claims against commercial firearms licensees for negligent security leading to theft. This Article argues that this government-endorsed lack of responsibility results in the under-deterrence of risky conduct that, with reasonable alterations, could avoid substantial intentional and accidental injury costs

The Second Amendment Right to be Negligent

Only two constitutional rights—the First and Second Amendments—have a realistic capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech. This Article asserts that through both common and statutory law, the United States has enshrined a de facto Second Amendment right to be negligent in many aspects of making, distributing, and possessing firearms, the only legal product designed to inflict what the tort system is designed to prevent. Explaining that it is a microcosm of a much larger issue, this Article focuses on one area: allowing access to guns by criminals through theft. Hundreds of thousands of guns are stolen each year from individuals and commercial sellers. By definition, they all go directly to criminals. A substantial percentage of guns used in crime were previously stolen. Nevertheless, the common law has conferred near complete immunity on gun owners and sellers who fail to secure guns from theft when they are subsequently used to cause harm. This occurs despite frequent judicial pronouncements that the risk of firearms demands the highest degree of care in their use and keeping. To accomplish this result, courts ignore or mischaracterize fundamental scope of liability principles, rarely even reaching the question of whether reasonable care was exercised. On the statutory front, not only have Congress and most states failed to mandate firearms security measures, Congress has—in the name of the Second Amendment—given express protection of the right to be negligent, most prominently in the form of the Protection of Lawful Commerce in Arms Act. The Act immunizes manufacturers and sellers of guns from most tort claims, including claims against commercial firearms licensees for negligent security leading to theft. This Article argues that this government-endorsed lack of responsibility results in the under-deterrence of risky conduct that, with reasonable alterations, could avoid substantial intentional and accidental injury costs

The James Webb Space Telescope Mission

Twenty-six years ago a small committee report, building on earlier studies, expounded a compelling and poetic vision for the future of astronomy, calling for an infrared-optimized space telescope with an aperture of at least $4m$. With the support of their governments in the US, Europe, and Canada, 20,000 people realized that vision as the $6.5m$ James Webb Space Telescope. A generation of astronomers will celebrate their accomplishments for the life of the mission, potentially as long as 20 years, and beyond. This report and the scientific discoveries that follow are extended thank-you notes to the 20,000 team members. The telescope is working perfectly, with much better image quality than expected. In this and accompanying papers, we give a brief history, describe the observatory, outline its objectives and current observing program, and discuss the inventions and people who made it possible. We cite detailed reports on the design and the measured performance on orbit.Comment: Accepted by PASP for the special issue on The James Webb Space Telescope Overview, 29 pages, 4 figure

Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation

With seventy-eight million baby boomers in or nearing retirement, elder financial exploitation has been labeled the “Crime of the 21st Century,” yet little has been done to address the problem. While states and the federal government have passed hundreds of laws protecting children based on the assumption they are vulnerable and unable to protect themselves, older at-risk adults have been comparatively ignored despite extensive research showing they too are vulnerable. A substantial roadblock to prosecuting elder financial predators is the inability to prove that the financial transfers at issue were the result of exploitation rather than legitimate transactions. Many victims “voluntarily” part with their assets. To outsiders, the transfers may look like gifts or loans when in fact they occur because of undue influence, psychological manipulation, and misrepresentation. Even when property is taken by stealth, the incapacity or death of the victim often precludes prosecutors from being able to prove that the transfers were not legitimate. This Article proposes the adoption of state criminal statutes that create a permissive presumption of exploitation with regard to certain financial transfers from elders. The Article offers a specific statute and explains how it would be workable and constitutional. Preliminarily, the Article explores the scope of elder financial exploitation, discusses why it is grossly underreported and under-prosecuted, and analyzes practical, cognitive, and psychological reasons why older adults are vulnerable, focusing on emerging research showing that even elders who lack obvious impairments are at risk