Scholarship Highlight: The Intersection between Tort Law and the Second Amendment
[The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.]
In a new paper that grew out of a presentation at the Center’s March 2022 conference on Privatizing the Gun Debate, Lars Noah asks whether courts must recalibrate tort law governing firearms (claims not preempted by PLCAA) in light of evolving Second Amendment jurisprudence. Noah “summarizes the range of contexts where tort law impacts the possession and sale of firearms, ranging from intentional torts such as battery, various forms of negligence including negligent entrustment, strict products liability, and public nuisance claims.” After addressing the Court’s evolving Second Amendment jurisprudence and Bruen, Noah suggests that “[a]n inability to trace modern liability rules applicable to firearms far enough back in time seemingly would render them vulnerable to constitutional objections and might require modifications along the lines of what has happened in the domain of speech torts.”
Lars Noah, Must Courts Recalibrate Tort Law Governing Firearms in Light of the Second Amendment?, 92 U. Cin. L. Rev. _ (forthcoming Dec. 2023)
Abstract:
The rules governing the scope of liability in cases where firearms cause injuries—some well-established, others fairly novel—help to define the responsibilities of users, owners, and sellers of these popular but dangerous products. As the U.S. Supreme Court has recently expanded an individual’s right to keep and bear arms, some have wondered whether the Second Amendment might operate to limit the reach of these various tort doctrines. Sixty years ago, the Court started to constitutionalize various aspects of state common law, most famously using the First Amendment to limit defamation claims but in other respects as well. A comparable approach to the standards defining liability in the event of firearm injuries, especially now that a purely historical test seems to define the permissible reach of state action intruding on the constitutional rights of self-defense, could upend any number of settled and emerging tort rules. The prospect of granting still further immunity to the defendants in these sorts of cases represents yet another worrisome consequence of the current Court’s relentless drive to elevate the status of a right that it first discovered residing in the Second Amendment less than two decades ago.