“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
There is a never-ending debate as to the intent of the Founding Fathers when they wrote the Second Amendment, and if it should still apply to society today. When penning these words, the Founding Fathers had just fought the Revolutionary War, gaining independence for England, and so they understood, firsthand the power the people needed against an intolerable ruling class. They would have been unable to realize the weaponized power the military of today is armed with versus the average citizen.
Nevertheless, Americans, especially those in the western states and rural areas have a true love relationship with their guns and the right to keep their guns. Guns do not have the power to shoot someone; it is always the actions of a person pulling the trigger that fires the deadly rounds, yet guns are always the scapegoat.
Well, that is not necessarily true. There have been wrongful death cases where a gun misfired or had faulty trigger mechanisms that allowed the gun to discharge without the trigger being pulled by a human. These defective guns would certainly place blame on the negligent manufacturer or seller of the weapon. The manufacturer and others who profit from the sale had a duty to ensure that the guns, when handled properly, would not accidently discharge, injuring or killing indiscriminately.
Texas has more lenient gun laws than most other states, but that does not mean that humans who misuse guns are safe from negligence and liability. Wrongful death from a firearm is possible in Texas. There are three parts to claiming negligence: The first is to show that the gun owner had a duty to the injured person, the second is to show that the duty was breached, and the third is to create a link between the breach of duty and the injury.
There are no laws in Texas that require a gun owner to keep the weapons unloaded, locked in a safe or other secure location. If a child, under the age of 18, has access to a gun and uses that gun to commit a crime or harms anyone, including him or herself, the gun owner can be criminally liable and can be sued in a civil personal injury or wrongful death case.
Then, there is the issue of foreseeability. Take, for example, a person who knowingly leaves children in a car with a loaded and chambered gun in the glove compartment. If the unsupervised children open the glove compartment and handle the gun, only to be stunned when it fires injuring or killing one of them, the question of foreseeability should be raised. Was not the owner of the car and the gun able to “foresee” that children are curious and have no inherent knowledge of the dangers of a loaded weapon? The owner of the firearm is held to the highest standard of care and had a duty to keep a loaded gun away from the young children.
Owning a gun carries with it, responsibilities to protect others from the inherent dangers of a firearm. Even though the state has not passed laws requiring firearms be handled or stored in a prescribed manner, does not mean that they should not be respectfully treated and with a consideration for others.
The Difference Between Privileges and Rights
Many gun owners and enthusiasts are opposed to any attempt to pass and enforce laws regarding guns and gun control. The Second Amendment clearly states “the right of the people to keep and bear arms”, without any conditions having to be satisfied. Conversely, driving a car is a privilege; therefore, it is prudent for the state to pass laws that put certain requirements on potential drivers. The driver must have current car insurance to legally operate an automobile. After that, the person must pass a written test that demonstrates knowledge of traffic laws and basic automobile functions, such as, turn signals and brake lights. The student driver must also pass a driving test and eye test before they are declared competent to drive by the state, and given the privilege of a driver’s licenses.
To purchase a gun, either handgun or rifle, there is a Federal background check that searches the FBI database for a criminal conviction, since felons are not allowed to have a firearm in their possession. Once the prospective buyer has cleared the background check, the gun is theirs. There is no waiting period in Texas as is the case in other states. Aside from filling out the 4473 Form, which is a request for a background check, there is very little to the process.
The debate should not focus on privileges and rights, but rather on the inherent danger in driving a car and owning a firearm. They are both dangerous and account for thousands of deaths every year. A prudent gun owner would understand the responsibility that is innate to gun ownership and take it upon themselves to become educated on the care and handling of the firearm they just purchased.
In Texas, as in many other states, there is a provision in the law that allows a person to defend themselves, even to the point of deadly force. To use the “Castle Doctrine” as a defense against criminal prosecution, is based on the premise that the occupant of the home has the right to defend himself or herself against unlawful or forcible entry. The occupant must also believe that the intruder intended to do bodily harm to them. The occupant must not have provoked or instigated an intrusion or threat before using deadly force.
Not only does the Castle Doctrine provide a valid defense against criminal prosecution, it also contains a clause that shields the occupant of the home from civil personal injury or wrongful death lawsuits. Without this clause, the intruder or their family or estate could sue for medical bills, property damage, and punitive damages for pain and suffering. Using a firearm in self-defense is very different from misusing the firearm or allowing it to fall into the hands of a child or other person that has no business touching it.
Don’t hesitate to contact the professionals at W.T. Johnson today for a free consultation.