I’m not a fan of irresponsibility, particularly in the realm of firearm ownership. Let’s face it, irresponsible gun owners are at risk of not only killing themselves, but of others as well. While it’s not a huge issue within the gun community, it does exist and it is a threat to the Second Amendment. Think about it, every time an irresponsible or negligent gun owner causes a death it makes national headlines and it gives those that want to put greater restrictions on the Second Amendment more momentum to push their gun-control agenda.

My primary solution to the problem of the irresponsible gun owner is not to deny them of their Second Amendment rights but to educate them on the proper way to handle firearms. Turn an irresponsible gun owner into a responsible gun owner. Yet, there are many who believe that part of that education has to do with holding negligent gun owners who kill or wound others accountable in a court of law. It’s a persuasive argument on many levels and therefore has resonance to folks on either side of the gun divide.

Recently, I corresponded with Amanda Gailey, the director of the pro-gun control organization Nebraskans Against Gun Violence, to explore the issue and to discuss areas where there may be common ground as well as areas where there is legitimate concern.

S.H. Blannelberry: Let’s start with your background and involvement in the gun debate. You are the director of Nebraskans Against Gun Violence, what policy objectives does your organization chiefly support?

Amanda Gailey: We support evidence-based efforts to curb gun violence. Our primary policy points are:

Universal background checks Child access prevention laws and legal consequences for gun negligence Rigorous training requirements for anyone carrying a gun outside the home Preserving laws to protect the public that are already in place Improved data collection and research on gun violence

S.H. Blannelberry: In your recent article in the New Republic, “Why Americans Don’t Treat Fatal Gun Negligence as a Crime,” you make a very persuasive argument for holding negligent gun owners accountable in a court of law. You give some hair-raising examples of instances where individuals acted irresponsibly but avoided prosecution:

“A man in Washington practiced drawing a loaded handgun and unintentionally shot and killed his girlfriend’s daughter. A man in Florida twirled a handgun on his finger and killed a pregnant woman. A man in New Mexico handed a loaded rifle to his six-year-old daughter, who unintentionally shot her sister in the neck. None of these gun owners was prosecuted. The district attorney in the New Mexico case told the Farmington Times, “The father did not follow basic and universally accepted firearm safety rules” but “the problem is that the standard for criminal negligence is higher.”

I think the gun community by and large would agree with the premise that negligent gun owners should face criminal charges. However, due to the fact that our legal system is imperfect and inexact, many are concerned that if there was a greater emphasis on expanding prosecution for negligent behavior the subsequent wider net being cast would ensnare gun owners who don’t necessarily fit into the “negligent” category. How do you respond to these concerns?

Amanda Gailey: I don’t think that responsible gun owners have anything to fear from laws that hold irresponsible owners accountable. We have a problem in this country with negligent shootings, and I think it’s reasonable to anticipate that we will see more unintentional shootings as people are allowed to carry guns in more places with fewer training requirements. We certainly need to think fairly about what constitutes negligence, but we should put a real problem—innocent people being shot—ahead of the hypothetical one that gun owners might sometimes be held to too high of a standard. This is how we treat other crimes—we don’t stop prosecuting reckless driving simply because the law is imperfect. Negligence is a concept we are comfortable with when we apply it to other dangerous activities, such as driving, and we ought to be willing to hold an inherently dangerous activity such as handling loaded guns to a similar standard. Responsible gun owners can offer valuable perspectives on what ought to constitute negligence with firearms.

S.H. Blannelberry: As a follow up, so much depends upon the definition of negligent. I think as a gun owner I know it when I see it, but does it have a legal definition or a clear definition in this context? How far should the liability go? Perhaps an example, similar to the one in your article, would help clarify your position, so if I leave a gun in a dresser drawer for example, unlocked and loaded, and someone breaks into my home (I don’t have children) and steals it, uses it in the commission of a crime, should I be prosecuted? I don’t think that would fit my definition of negligent. Your thoughts?

Amanda Gailey: Laws regarding negligence vary somewhat state to state, but typically negligence is defined as behavior that grossly deviates from normal standards of care. So there may be some gray areas, as there are with any crime I can think of, but we can certainly agree that some behaviors, such as shooting into a yard where children are playing, grossly deviate from normal standards of care. Other situations may not rise to that level. As for your hypothetical situation, the people of a state would need to determine whether storing a gun accessibly within the home qualifies as negligent. I can see two sides to this: on the one hand, it’s in your home, and you don’t have kids. On the other hand, hundreds of thousands of guns are stolen every year and many of these are subsequently used in crime—it might be argued that normal standards of care require that gun owners make their guns less easy to steal by locking them up. A law that specifies the expectations for responsible gun ownership could clarify this, and I would anticipate that most people would think that it is not negligent to keep a gun unlocked in your own home, so long as children don’t live or visit there.

S.H. Blannelberry: On a different note, another reason why many of these negligent gun owners escape criminal prosecution is because the result of the incident — the death of a loved one, child, friend, etc. — is so damaging and tragic that the thought of a criminal charge on top of that loss seems almost cruel. What are your thoughts on this way of thinking?

Amanda Gailey: When I began researching the article I thought I would hear that prosecutors declined to charge many of these people because they were already burdened by guilt. However, that is not what prosecutors told me. Instead, they seem to think that the law is not specific enough regarding what constitutes negligence with firearms, so that if they bring the case before a jury of members of the community, they will not be able to convince all twelve that the charge of involuntary manslaughter, for instance, applies to that particular scenario without clearer statutes. I think they are also worried about political fallout from pursuing cases that will require them to publicly argue that certain behaviors with guns are negligent. If some prosecutors do decline to press charges because of a shooter’s sense of guilt, that would be inconsistent with how they charge other crimes. I believe almost anyone would feel devastated by guilt after unintentionally killing a family member. Some of the cases I looked into were truly heartbreaking—families are often torn apart by guilt and blame. However, that doesn’t stop DAs from charging reckless drivers, for example, because the public as well as the family has an interest in these cases. It doesn’t seem too much to ask that someone who chooses to own a gun maintain it responsibly, especially in a home with children.

S.H. Blannelberry: Available statistics indicate that accidental gun deaths are at record lows. Many attribute the drop in accidental gun deaths to safety programs like the NRA’s Eddie Eagle and the NSSF’s Project ChildSafe, what is your reaction to the stats and the efficacy of these initiatives?

Amanda Gailey: I think it is great when anyone is taking gun safety seriously. Unfortunately, though, I think these programs are deeply flawed. First, there are some problems with the research behind the claim that accidental gun deaths are at record lows. The NSSF claims that gun accidents dropped 25% from 2001 to 2011, but the National Center for Health Statistics contradicts this—they show a 6% increase over the same period, up from 802 in 2001 to 851 in 2011. And even these numbers don’t tell the whole story because of inconsistencies in reporting: some coroners categorize many of these accidents as homicides and they don’t even figure into the accident tally.

Also, the NSSF’s Project ChildSafe has been a disaster—they put countless defective locks on guns at taxpayer expense.

The problem I see with Eddie Eagle is that we can’t put the burden of gun negligence on children. Their brains aren’t ready for it, and studies have shown that boys in particular find it extremely difficult to resist the allure of accessible guns, even when they have received clear firearms safety training. It is our job as adults to protect kids by keeping guns out of their hands, including by asking about how guns are stored in homes they visit. Unfortunately, I think we as a country have been misled by some bad science that distorts the number of defensive gun uses, so some of us make errors in reasoning about the risk of keeping a gun on hand versus the risk of unintentionally injuring or killing someone.

S.H. Blannelberry: When reading your article gun owners will take issue with the one attorney’s comment on Glock in which he says, “With any other product in the world there would be no Glock company because they would be sued out of existence. You don’t have a safety? That can’t be right.”

Part of Glock’s appeal as a tool for self-defense is that it has no external safety. Many believe that under the extreme duress of a self-defense situation the fine motor movement required to disengage an external safety would be a hinderance. What are your thoughts on this argument?

Amanda Gailey: I know that there is lively debate about this issue. The way I see it, almost all other products are subject to consumer safety oversight. If I sell a dangerous stroller it can be recalled by the Consumer Product Safety Commission. If I sell a car with defective brakes the National Highway Safety Transportation can recall it. But gun manufacturers don’t have an analogous supervising body, so if they sell guns that fire when dropped, no authority can force a recall.

I am worried about actual gun violence. Having a gun ready to fire without a safety puts everyone around you at risk, all in service to an imagined scenario in which a split second gives a gun carrier an advantage. I can imagine all kinds of scenarios in which a safety device *could* be a hindrance–being buckled up if my car goes into water, for example–but the far greater risk is in not buckling up in case of a traffic accident. Similarly, people who choose to carry guns around others must mitigate the actual risk they create rather than increase that risk because of a hypothetical and less likely situation.

S.H. Blannelberry: Moving forward, what would you like to see accomplished over the next few years in terms of gun laws that target negligent gun owners?

Amanda Gailey: Well, the fundamental improvement I would like to see is for us to have reasonable discussions about these issues without allowing wild fantasies and ideological extremism to determine public policy. I think most Americans want to keep their families and communities safe, so I would like us to have a discussion in good faith about how to do that.

As far as particular policy points, child access prevention laws are part of the answer, but I also think we need to empower prosecutors to pursue clearly negligent behavior that kills or maims other people. If prosecutors are telling us that they need more targeted statutes, then we need to think through what those statutes should look like. So much recent gun legislation in state legislatures has been about loosening gun laws. It’s time to think about tightening responsibility.

***

Thanks to Ms. Gailey for taking the time to respond to my questions.

As for where I come out on this, I think in terms of prosecuting negligent gun owners, the devil is in the details. Obviously, the law and how it defines negligence matters but so does the circumstances of each case. Generally speaking, this is an issue that must be handled with a scalpel and not an axe.

What are your thoughts on prosecuting negligent gun owners?