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View Diary: Make gun owners 'own' the costs of RKBA? (22 comments)

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  •  Here's my nitpicking point (1+ / 0-)
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    I think your overall point is well taken and several other diarists are raising similarly interesting ways of imposing liability on gun owners whose guns are used to hurt or kill people.

    You are using a number of legal concepts of liability that have somewhat precise meanings that you probably don't need to get into right now.

    For example, you mention that ordinary liability requires some degree of "recklessness." Actually ordinary liability of the kind you are talking about requires "negligence." Weirdly, recklessness is yet another legal term that refers to a different and more severe form of fault. One professor of mine neatly summed up the difference this way: Negligence is when you were not as careful of a risk as a normal person (the "reasonable man" standard); recklessness is when you understood the risk and decided to run the risk anyway.

    Also your diary is primarily about carelessness in handling guns (a good way to look at the issue), but then suggest strict liability. Strict liability is liability without fault -- ie without regard to negligence, recklessness or any other state of mind. It does not mean "guilty until proven innocent." In fact, the plaintiff still has to prove his case. It's just that he doesn't have to prove negligence.

    So for example, the plaintiff still has to prove causation. In other words, if I sue the soup company because I think their can of soup made me sick, if the state law for products like that is strict liability, I don't have to prove that the soup company was negligent; but I still have to prove that the soup made me sick. The company's best defense is not that it was super careful; in strict liability cases the carefulness used by the company is irrelevant. The company is not guilty until proven innocent. So the best defense might be causation -- that I never in fact actually ate the soup.

    It takes about the first year of law school to begin to wrap one's mind around liability concepts, so I wouldn't worry about the level (negligence, recklessness, strict liability) at this point - but focus on the more general issue of gun owners being liable under some to be determined standard.

    Btw, though, strict liability would be an interesting way to impose liability because strict liability is also imposed on certain activities considered super dangerous or risky -- like handling explosives.

    •  Thank you! (1+ / 0-)
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      I wanted to raise the concept that rather than try to ban guns, we impose a fair, but challenging, obligation to use them carefully.

      Hopefully, that will encourage owners to be more cautious and also deter some prospective owners from assuming the risks that go with that responsibility.

      I assumed that I probably wouldn't get the details right.

      So, your comment is very enlightening and I am grateful.

      Maturity: Doing what you know is right - even though you were told to do it

      by grapes on Tue Dec 18, 2012 at 12:23:34 PM PST

      [ Parent ]

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