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Post by Deleted on Nov 19, 2017 17:20:43 GMT -5
On your law review article --
The article focuses on one narrow issue: it argues that gun sellers/manufacturers/owners are not held liable for failing to secure guns from theft, when the stolen guns are then used in a crime. The author argues they thus have "the right to be negligent."
The article doesn't argue that the PLCAA is solely responsible for that, nor that repealing it would fix it. The PLCAA is just one part -- the article discusses the lack of such liability (or imposition of responsibility) under other federal law, the common law, state laws, and court cases pre-dating the PLCAA -- so even were the PLCAA repealed, it seems this issue would not be resolved. At best, it would be left to the vagaries of courts in individual cases, who, it seems, didn't leap to impose such liability even before the PLCAA.
The article also notes that guns aren't just stolen from sellers and manufacturers, but also from individual owners (in fact, according to the article, over 90% of them are stolen from individual owners). Individual gun owners also have the "right to be negligent" in the way they secure guns, according to the author. But repealing the PLCAA wouldn't address that at all.
This issue would best be addressed by laws/regs requiring gun sellers/manufacturers/owner to secure guns. Placing this obligation on them would go further in preventing deaths from stolen guns in the first place -- and if a gun seller/manufacturer/owner failed to comply and the stolen gun were used in a crime, there'd be a much cleaner, easier lawsuit for negligence per se, even under the PLCAA. Which, actually, is what I've been arguing.
And indeed, such laws are also exactly what this article seems to be arguing for.
ETA:
I must note, too, that the fact that a gun was stolen does not, by itself, necessarily prove that the manufacturer, dealer, or owner was negligent. And then there's the question of what would constitute negligence in that regard.
If you have laws or regulations spelling it out, it's pretty straightforward. Not meeting them might make out a case for negligence per se, should the gun later be used in a crime, and such a case would be bring-able under an exception to the PLCAA. (And also against individual owners who failed to comply.)
But if you were to repeal the PLCAA, but did NOT have such laws and regulations, to bring a negligence case, the plaintiff would have to prove not only that the gun was stolen from that seller, but also prove that the seller owed a duty to the plaintiff, that they breached that duty by being negligent in securing the gun, and that this breach caused the harm to plaintiff. And if you have no law or reg spelling out how the gun should be secured, you're left trying to prove that the way they secured it didn't show reasonable care and a reasonable person would have acted differently. That's a lot harder, sans a standard.
And of course, as the article makes clear, it's not just the PLCAA that provides a "right to be negligent." Several things in our legal system contribute to that, for owners as well as dealers and manufacturers.
Laws and regulations setting forth standards for securing guns would address all of these issues, and prospectively, not just provide compensation after the harm was done and a lawsuit filed. Repealing the PLCAA would at best address a fraction, and then only after a plaintiff sued, and then only after he got past a motion to dismiss, and then probably only for that plaintiff. Not. Efficient.
(And your author doesn't argue otherwise, by the way -- his focus is not on arguing that the PLCAA should be repealed. Actually, he seems to be arguing for the same thing I am -- laws and regulations requiring manufacturers, dealers and sellers to secure their guns.)
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Post by Don on Nov 19, 2017 20:57:59 GMT -5
Okay, if we've got the PLCAA figured out, anybody want to tackle "shall not be infringed?" Well, the most rabid 2A supporters interpret that to mean "Any law that affects anyone's ability to own any weapon whatsoever is unconstitutional." I personally find that to be an implausible reading either of the framers' intent or of how Constitutional law works in general. I agree. I think that "arms" is a restrictive term that prevents private ownership of tanks, assault aircraft, and nuclear weapons, for example. The 2A is not a carte blanche. Small cannons in the horse-towable size range may be a grey area, however, which opens the door to shoulder-fired missles, I suppose.
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Post by Amadan on Nov 19, 2017 22:31:52 GMT -5
Well, the most rabid 2A supporters interpret that to mean "Any law that affects anyone's ability to own any weapon whatsoever is unconstitutional." I personally find that to be an implausible reading either of the framers' intent or of how Constitutional law works in general. I agree. I think that "arms" is a restrictive term that prevents private ownership of tanks, assault aircraft, and nuclear weapons, for example. The 2A is not a carte blanche. Small cannons in the horse-towable size range may be a grey area, however, which opens the door to shoulder-fired missles, I suppose. Okay- what is your logic for saying that the Second Amendment doesn't apply to tanks that someone can't just as easily use to say it doesn't apply to semiautomatic rifles? Someone has to interpret "arms" to include semiautomatic rifles but not tanks, but that is an interpretation either way,and then you're already admitting that the Constitution is open to interpretation.
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Post by Don on Nov 20, 2017 7:22:46 GMT -5
I agree. I think that "arms" is a restrictive term that prevents private ownership of tanks, assault aircraft, and nuclear weapons, for example. The 2A is not a carte blanche. Small cannons in the horse-towable size range may be a grey area, however, which opens the door to shoulder-fired missles, I suppose. Okay- what is your logic for saying that the Second Amendment doesn't apply to tanks that someone can't just as easily use to say it doesn't apply to semiautomatic rifles? Someone has to interpret "arms" to include semiautomatic rifles but not tanks, but that is an interpretation either way,and then you're already admitting that the Constitution is open to interpretation. We can go all the way back to Aristotle if necessary, or the English Assize of Arms of 1181, but you'll find that various discussions during the Constitutional debates used terms such as "the body of the People capable of bearing Arms." "Bear arms" in common usage meant "carry weapons" and still does today. Weapons that require a team for operation and transport fail the "bear arms" test if the 2A is viewed as an individual right. The only "interpretation" required is a basic understanding of english of the era.
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Post by robeiae on Nov 20, 2017 7:50:29 GMT -5
On your law review article -- The article focuses on one narrow issue: it argues that gun sellers/manufacturers/owners are not held liable for failing to securesituations guns from theft, when the stolen guns are then used in a crime. The author argues they thus have "the right to be negligent." The article doesn't argue that the PLCAA is solely responsible for that, nor that repealing it would fix it. The PLCAA is just one part -- the article discusses the lack of such liability (or imposition of responsibility) under other federal law, the common law, state laws, and court cases pre-dating the PLCAA -- so even were the PLCAA repealed, it seems this issue would not be resolved. At best, it would be left to the vagaries of courts in individual cases, who, it seems, didn't leap to impose such liability even before the PLCAA. The article also notes that guns aren't just stolen from sellers and manufacturers, but also from individual owners (in fact, according to the article, over 90% of them are stolen from individual owners). Individual gun owners also have the "right to be negligent" in the way they secure guns, according to the author. But repealing the PLCAA wouldn't address that at all. I'm just going to offer my own two cents on that article, for what it's worth (two cents, right?). I think it's horrible. And I think a lot of what is in it proceeds from a wrong-headed "search for responsibility (or liability)" that occurs in the aftermath of many tragedies. The author spends a lot of time in the piece comparing situations with firearms to other situations (like how leaving loaded gun around is akin to leaving the keys in the ignition of a car). I don't think a lot of the examples he presents as analogous are analogous at all. But more importantly, I don't think anyone has to necessarily agree that decisions in civil liability cases always represent standards for the same. There are too many ways in which every such case is different. Beyond that, I don't think the author demonstrates an "unwarranted deference to expansive views of the Second Amendment" at all, as the principle reason behind the lack of legal consequences for people whose guns are stolen, then used for criminal actions. Indeed, the cases he's citing don't directly reference the Second, at all. Also, I don't like the exceedingly strong odor of utilitarianism emanating from the article.The author--by my reading--wants to be able to hold these individuals--who fail to properly secure their firearms--liable for the criminal acts committed with their stolen firearms primarily because it would seem to be the most effective way to minimize such occurrences. Bleck. The most effective way to minimize muggings in sketchy areas would be to forbid foot traffic in sketchy areas...
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Post by robeiae on Nov 20, 2017 8:05:06 GMT -5
Okay- what is your logic for saying that the Second Amendment doesn't apply to tanks that someone can't just as easily use to say it doesn't apply to semiautomatic rifles? Someone has to interpret "arms" to include semiautomatic rifles but not tanks, but that is an interpretation either way,and then you're already admitting that the Constitution is open to interpretation. We can go all the way back to Aristotle if necessary, or the English Assize of Arms of 1181, but you'll find that various discussions during the Constitutional debates used terms such as "the body of the People capable of bearing Arms." "Bear arms" in common usage meant "carry weapons" and still does today. Weapons that require a team for operation and transport fail the "bear arms" test if the 2A is viewed as an individual right. The only "interpretation" required is a basic understanding of english of the era. I think the proper understanding of "to bear arms" has a definite military component. One "bears arms" against some entity or for some entity. One doesn't just bear arms, despite what a simple dictionary definition might say. It's very much the same as " to take up arms." And in that regard, we're talking hand-held weapons that would be used by the militia (as indicated by the Second).* Imo, for the Framers such "arms" were muskets/rifles, quite obviously. Today, the arms would still be rifles, including assault-style ones. That's the simplest reading. One actually needs to "interpret" the Second in order to justify possessing handguns, imo. * But to be clear, this remains an individual right, per the "keep."
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Post by Amadan on Nov 20, 2017 10:00:53 GMT -5
Okay- what is your logic for saying that the Second Amendment doesn't apply to tanks that someone can't just as easily use to say it doesn't apply to semiautomatic rifles? Someone has to interpret "arms" to include semiautomatic rifles but not tanks, but that is an interpretation either way,and then you're already admitting that the Constitution is open to interpretation. We can go all the way back to Aristotle if necessary, or the English Assize of Arms of 1181, but you'll find that various discussions during the Constitutional debates used terms such as "the body of the People capable of bearing Arms." "Bear arms" in common usage meant "carry weapons" and still does today. Weapons that require a team for operation and transport fail the "bear arms" test if the 2A is viewed as an individual right. The only "interpretation" required is a basic understanding of english of the era. Okay, what about flamethrowers? What about poison gas grenades? What about when we invent laser rifles or even more destructive futuristic weapons? As Rob pointed out, you're assuming that "bear arms" literally means "Any weapon you are physically capable of carrying." Legal language tends to use terms of art which are not necessarily the "plain English" meaning people like to assume (or interpret), and the Constitutional framers were lawyers.
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Post by Deleted on Nov 20, 2017 10:42:42 GMT -5
On your law review article -- The article focuses on one narrow issue: it argues that gun sellers/manufacturers/owners are not held liable for failing to securesituations guns from theft, when the stolen guns are then used in a crime. The author argues they thus have "the right to be negligent." The article doesn't argue that the PLCAA is solely responsible for that, nor that repealing it would fix it. The PLCAA is just one part -- the article discusses the lack of such liability (or imposition of responsibility) under other federal law, the common law, state laws, and court cases pre-dating the PLCAA -- so even were the PLCAA repealed, it seems this issue would not be resolved. At best, it would be left to the vagaries of courts in individual cases, who, it seems, didn't leap to impose such liability even before the PLCAA. The article also notes that guns aren't just stolen from sellers and manufacturers, but also from individual owners (in fact, according to the article, over 90% of them are stolen from individual owners). Individual gun owners also have the "right to be negligent" in the way they secure guns, according to the author. But repealing the PLCAA wouldn't address that at all. I'm just going to offer my own two cents on that article, for what it's worth (two cents, right?). I think it's horrible. And I think a lot of what is in it proceeds from a wrong-headed "search for responsibility (or liability)" that occurs in the aftermath of many tragedies. The author spends a lot of time in the piece comparing situations with firearms to other situations (like how leaving loaded gun around is akin to leaving the keys in the ignition of a car). I don't think a lot of the examples he presents as analogous are analogous at all. But more importantly, I don't think anyone has to necessarily agree that decisions in civil liability cases always represent standards for the same. There are too many ways in which every such case is different. Beyond that, I don't think the author demonstrates an "unwarranted deference to expansive views of the Second Amendment" at all, as the principle reason behind the lack of legal consequences for people whose guns are stolen, then used for criminal actions. Indeed, the cases he's citing don't directly reference the Second, at all. Also, I don't like the exceedingly strong odor of utilitarianism emanating from the article.The author--by my reading--wants to be able to hold these individuals--who fail to properly secure their firearms--liable for the criminal acts committed with their stolen firearms primarily because it would seem to be the most effective way to minimize such occurrences. Bleck. The most effective way to minimize muggings in sketchy areas would be to forbid foot traffic in sketchy areas... That's a whole 'nother can of beans. I wasn't so much looking at the merits of the argument in the article as I was looking at it from the standpoint of the discussion in the thread about the magnitude of the PLCAA's impact, and whether repealing it would make a vast difference to gun violence or to obtaining damages for gun violence victims. I don't think the article supports Christine's point at all -- taking aside the focus on only one issue (liability for securing guns), the article makes the point that many factors contribute to this besides the PLCAA, and that it was going on long before the PLCAA was enacted. Also, because over 90% of stolen guns are stolen from individuals, the PLCAA has nothing at all to do with over 90% of the issue the article focuses on. If you repealed the PLCAA, the vast majority of the "right to be negligent" decried in the article would still exist. The article doesn't seem to be a call to repeal the PLCAA -- it's a call for laws requiring those in possession of guns to secure them. I actually think the article supports my point better than Chistine's, frankly. My point was not that the PLCAA is totes awesome or that it has no impact -- merely that the screaming about it is somewhat overblown and would be better focused on laws and regs that would improve gun safety. This article seems to also argue for regs and laws, and it is implicit that the PLCAA is only part of a larger issue that existed before it was enacted.
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Post by Vince524 on Nov 20, 2017 13:03:41 GMT -5
We can go all the way back to Aristotle if necessary, or the English Assize of Arms of 1181, but you'll find that various discussions during the Constitutional debates used terms such as "the body of the People capable of bearing Arms." "Bear arms" in common usage meant "carry weapons" and still does today. Weapons that require a team for operation and transport fail the "bear arms" test if the 2A is viewed as an individual right. The only "interpretation" required is a basic understanding of english of the era. Okay, what about flamethrowers? What about poison gas grenades? What about when we invent laser rifles or even more destructive futuristic weapons? As Rob pointed out, you're assuming that "bear arms" literally means "Any weapon you are physically capable of carrying." Legal language tends to use terms of art which are not necessarily the "plain English" meaning people like to assume (or interpret), and the Constitutional framers were lawyers. The right to bear arms can be interpreted in varied ways. link
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Post by Deleted on Nov 20, 2017 15:26:00 GMT -5
On the liability of individual gun owners (not addressed by the PLCAA) for failing to secure their gun -- www.google.com/amp/s/articles.nola.com/crime/index.ssf/2012/11/how_liable_is_the_owner_of_a_s.ampIn other words, the individual gun owner is typically not liable for failing to secure their gun if some third person steals it and chooses to deliberately shoot someone with it. He is not liable for someone else's criminal misuse of the gun." That's not about the PLCAA. And it's not just about guns -- the owner of the stolen car isn't liable for the people the thief mows down, either. As I've been saying since I first dropped that politifact article, the law usually doesn't hold parties liable for the criminal act of a third party, absent some special recognized legal duty. Which is part of why I think the hand-wringing about how extraordinary and outrageous the PLCAA is is somewhat overblown.
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Post by Christine on Nov 20, 2017 20:21:23 GMT -5
On your law review article -- The article focuses on one narrow issue: it argues that gun sellers/manufacturers/owners are not held liable for failing to secure guns from theft, when the stolen guns are then used in a crime. The author argues they thus have "the right to be negligent." The article doesn't argue that the PLCAA is solely responsible for that, nor that repealing it would fix it. The PLCAA is just one part -- the article discusses the lack of such liability (or imposition of responsibility) under other federal law, the common law, state laws, and court cases pre-dating the PLCAA -- so even were the PLCAA repealed, it seems this issue would not be resolved. At best, it would be left to the vagaries of courts in individual cases, who, it seems, didn't leap to impose such liability even before the PLCAA. I disagree. Though the article isn't solely focused on the PLCAA, it mentions the PLCAA several times, and as a principal cause for the lack of responsibility: The article also notes that guns aren't just stolen from sellers and manufacturers, but also from individual owners (in fact, according to the article, over 90% of them are stolen from individual owners). Individual gun owners also have the "right to be negligent" in the way they secure guns, according to the author. But repealing the PLCAA wouldn't address that at all. That is incorrect. Section 5 of the PLCAA contains the Child Safety Lock Act, which grants the same protections to gun owners as it does to sellers against negligence, if they use a child safety lock (which obviously does not protect against theft, and is absurd, imo): This issue would best be addressed by laws/regs requiring gun sellers/manufacturers/owner to secure guns. Yes, I agree. But here's the thing: states aren't doing that. And then, on top of that, the Federal Government enacted the PLCAA. At the very least, allowing cases to go forward (win or lose) would be better than FedGov putting a blanket halt to them. Many pending cases were dismissed when the PLCAA was passed. And indeed, such laws are also exactly what this article seems to be arguing for. Disagree. The article is arguing that the Second Amendment--supported via the PLCAA--allows the gun industry to be negligent. Also, the author acknowledges up front that the issue of gun theft is a microcosm of a much larger issue. Yes, it's a narrow focus, but it aptly highlights problems with the PLCAA in this one area. ETA: The article also references several cases (see the footnotes) that were thrown out under PLCAA, including pending cases when it was enacted. I'm not sure what the benefit would be of me posting them again here, but I did try to look one of them up to get the full text. Unfortunately I'm having a hard time finding a site where I can link to case without signing up or giving a credit card.
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Post by Deleted on Nov 20, 2017 20:30:11 GMT -5
Sigh.
Read it as you like. If anyone else feels like reading it, they can judge for themselves.
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Post by Christine on Nov 20, 2017 21:05:40 GMT -5
I think it's horrible. And I think a lot of what is in it proceeds from a wrong-headed "search for responsibility (or liability)" that occurs in the aftermath of many tragedies. So, you believe people who own or sell firearms have no responsibility to prevent them from being stolen. If the situations aren't analogous, it's because, like you said earlier, a car is not a knife is not a blender is not a gun. But yes, every situation is different, which is why, imo, individual cases should be allowed to proceed, as opposed to being barred by the PLCAA. If it's frivolous, if there's no basis, like Cass said, attorneys aren't going to waste their time. And if they did, judges would set them straight. He was suggesting it was the underlying cause. I agree with him. I honestly can't see how anyone wouldn't. And of course, on the flip side, you have people claiming all the lawsuits and the protests against the PLCAA are a poorly disguised attempt to ban guns, do away with the Second, etc. Using your analogy, the dead or injured victims would be found negligent for being in the way of the bullets.
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Post by Deleted on Nov 20, 2017 21:30:47 GMT -5
Okay. I totally am going to fucking kick myself for this because I am so fucking sick of this argument I could scream, and I know there is absolutely nothing I or Jesus Christ on the cross or freaking Thor with his thunderbolt could do to make you for one minute acknowledge that I have anything approaching one tenth a point here and this is all a profound, pathetic, appalling waste of my time. But god fucking help me, I'm going to point it out anyway. I can't fucking help myself. God knows I tried. The purpose of the Child Safely Lock Act was to "promote the safe storage and use of handguns by consumers" and "prevent unauthorized persons from gaining access to or use of a handgun, including children who may not be in possession of a handgun." The immunity to negligence claims you are complaining about with regard to gun owners is far from sweeping. It applies only in a limited context, for the purpose of encouraging gun safety measures, to So -- it applies only if the gun owner complies with the required gun storage or safety device making it inoperable, that safety device/storage was in use at the time the third person got hold of it, and that third person deliberately shoots someone with it. If the gun owner did that, THEY WEREN'T NEGLIGENT. I don't just mean in terms of the act. I mean in general. They took the actions they were supposed to take, the actions a reasonable person would take, to keep the gun safe from unauthorized persons. N egligence is The CSLA sets up a standard for gun owners to keep their gun safe. If the gun owner just leaves the gun lying around without the appropriate safeguard, they don't have "immunity" from a negligence action. Because, hello, they were negligent. If they do comply with those requirements, and yet some criminal still manages to get past those safeguards and use the gun for a deliberate criminal act, why on earth should the gun owner be held responsible for negligence? I'm serious here. Why? Maybe it's me. It makes total sense to me to set up a requirement for gun owners to keep their guns safe, and if they are in compliance, to not hold them liable for being negligent when they weren't freaking negligent. Actually, that's what I WANT the laws to do -- set up standards. If you want to argue the standard should be stricter, requiring both storage and a safety device rendering the gun inoperable, OK. I'm good with that. Let's do it. But the CSLA hardly gives gun owners sweeping immunity, and I don't think the immunity it does grant is unreasonable. To the extent you and the author of the article think otherwise, I heartily disagree. I'm serious that by the time we're through here, you're going to convince me to join the goddamn NRA. ETA: And even if you think gun owners should be held liable in negligence for --ahem -- not being negligent, how many guns that get out there and are used to deliberately shoot people by third parties are going to be from people who have their guns safely locked up? I doubt there are this huge rash of people shot by guns that were stolen from lawful gun owners who have their guns responsibly secured and that some unauthorized third person somehow still managed to get hold of despite those precautions. And unless there are a sizable number we go back to the (rather limited) point I made about the PLCAA -- that the effect on barring genuinely viable negligence claims is a bit overblown. And if you take away this limited immunity for someone who is compliant with the CSLA, then someone who has their gun secured is no better off legally than an irresponsible owner who doesn't secure his gun -- which takes away a powerful incentive to secure the gun. ETA: If you were to repeal the CSLA, unless you also implemented new gun laws requiring owners to secure guns, it wouldn't necessarily result in additional successful negligence cases against owners. (See my posts above about bringing negligence cases, and the law review article's discussion of the reluctance of courts to hold owners responsible for the criminal acts of a third party.) But by taking away the incentive to secure guns contained in the CLSA, it WOULD very likely result in more negligence on the part of owners -- and hence more shootings and more deaths. So yeah. It's actually not that repealing the CSLA wouldn't have any effect with regard to gun owners -- it would likely have a negative effect. ETA: Heh. The NRA doesn't seem to like the CSLA -- www.nraila.org/articles/20050224/hr-165-s-not-so-deceptive-handgun-ban
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Post by Christine on Nov 20, 2017 22:07:51 GMT -5
All I did was point out that you were incorrect when you said: The article also notes that guns aren't just stolen from sellers and manufacturers, but also from individual owners (in fact, according to the article, over 90% of them are stolen from individual owners). Individual gun owners also have the "right to be negligent" in the way they secure guns, according to the author. But repealing the PLCAA wouldn't address that at all. I quoted Article 5 of the PLCAA. Basically the same protections for owners as for manufacturers and sellers. That's all. I don't think having a safety device on a gun should exempt an owner from liability for criminal acts committed with a stolen weapon. But that's what's the PLCAA says, barring state laws to the contrary.
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