The State's Power to Prevent Private Negligence

In late March, I wrote a post called Gun Laws Implicate More Than Just the Second Amendment. I discussed how laws which regulate home gun storage implicate the Fourth Amendment (search/seizure) as well as the Second Amendment (right to bear arms). The short of it is that regulations which dictate proper methods of home storage require otherwise impermissible home searches to enforce - otherwise they're merely cumulative criminal punishments stacked on top of other offenses for maximum punitive effect.

In response to that post, a fellow attorney posed a hypothetical situation I had neglected to discuss:

[W]hat about situations in which the prohibited storage of Bob's handgun results in actual harm to someone? Suppose Bob leaves his handgun loaded and on the dining room table, where his ten year-old son and a friend discover it. Bob's son then picks up the gun and accidentally shoots his friend, who dies. Is a gun regulation like San Francisco's a good way (or the only way) to ensure Bob is punished for his failure to safely store his gun?

Well, this situation isn't really hypothetical because accidental shootings of children occur with grim frequency. Back in March, a young boy in Arizona shot himself with a small pistol owned by his parents. From the report:

The boy apparently pulled a small chair up to a counter where his mother was working on a laptop computer, saw the .32-caliber semi-automatic pistol there and shot himself, according to reports. The gun was in an ankle holster with the trigger exposed “and could easily be pulled by almost anyone,” according to a report.

The boy survived, luckily, but required surgery. In response to the shooting:

Sheriff's detectives obtained a search warrant for the house in Elephant Head and found 20 guns along with boxes, cans and bags of ammunition in several rooms. The weapons included shotguns, rifles, a Ruger and a Colt .45 handgun in a holster affixed to the headboard in the master bedroom. The family owns a gun safe where several weapons were found but it was not locked, according to the report. One of the couple's four children told detectives he knew the safe was not locked; another said his father “did not remember the combination to the safe.”

Most of the weapons in the house were not loaded; several had rounds in the chamber and others had rounds in magazines, according to the report.

This is more or less exactly the situation posed in response to my original post. Almost certainly, situations like this inflame the passions of people who fear guns or otherwise wish we could eradicate them from our society. Gun defenders, on the other hand, would no doubt hang the blame not on the guns but on the parents, who made the situation possible by failing to secure the large number of firearms they kept in a home with four young children.

My concern is the proper role played by the state in this situation. Is it (or should it be) the government's job to prevent unfortunate accidental shootings like this?

Let's presume, for the sake of argument, that it is the government's job to prevent negligent gun storage in order to protect children. How would the government do that? The first step would be to pass a law prohibiting unsecured gun storage in homes with children. But how does that law get enforced in order to actually prevent (not punish after the fact) negligent gun storage?

The government would need the power to conduct searches of people's homes looking for unsecured guns. Because it would be difficult to know which houses have unsecured guns without going inside each one, the police would need to conduct periodic searches of all homes, regardless of whether any violations were actually known. Waiting until a child is shot is too late to prevent situations like the one in Arizona, so searches will have to be done frequently and without warning. It's the only way such a preventative law would be effective.

A hurdle to such a law is the Fourth Amendment, which, at least theoretically, requires probable cause to suspect someone has committed a crime (usually through a warrant) before a search of their property can be conducted. How would the police gain probable cause for searches of homes looking for unsecured firearms? What indications outside the home would tip them off? Other than self-reporting or tips from nosy neighbors, the police can't know that a home contains unsecured firearms without going inside themselves and looking. You can see the problem here. In order to search a home, police have to have probable cause to suspect a violation of the law, but the only way to learn if such a law was being violated is to search the home.

So even if it is the government's job to prevent private negligence (which is highly debatable), doing so without violating the Fourth Amendment becomes exceedingly difficult.

The question for supporters of firearm home storage laws is this: do you also support frequent, warrantless searches of people's homes by the police? Would you gladly submit to cops rifling through your belongings looking for unsecured guns when you've done nothing else wrong? There's no other way to effectively enforce these laws. Otherwise they exist only to increase the punishment for people who already broke the law by hurting someone through their own criminal negligence.*

Maybe cumulative punishment makes us feel better, but laws such as these empower the police to overstep their bounds in the name of public safety. And these laws can't turn back time to undo the harm done by negligent gun owners. So unless the police can truly enforce them through aggressive and frequent home searches, are they really necessary?

The balancing act is portrayed as safety versus freedom, but the real balancing act is state power versus private space. Are incremental increases in public safety worth the greater surrender of privacy they require? It would be an ideal world where all tragedies like the one in Arizona could be prevented by passing home firearm storage laws. Unfortunately, we don't live in an ideal world, and such laws require a drastic surrender of private space to state power in order to even approach effectiveness.

*In Kentucky, a parent who left a gun sitting out which accidentally killed a child could be charged with reckless homicide under KRS 507.050.