Houston Law Review
Comment, Page 1389
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
A NEW TREND IN GUN CONTROL:
CRIMINAL LIABILITY FOR THE
NEGLIGENT STORAGE OF FIREARMS
Table of Contents
I. INTRODUCTION ............................................................................ 1390
II. THE RIGHT TO KEEP AND BEAR ARMS ................................... 1392
A. Common Law Right to Keep and Bear Arms ......................... 1392
B. The Constitutional Right to Keep and Bear Arms:
The Second Amendment ............................................................ 1394
1. The Passage of the Second Amendment ....................... 1394
2. Limitation Only on the Federal Government .................. 1395
3. Collective Right v. Individual Right ............................... 1396
4. Relation to a Well Regulated Militia .............................. 1398
C. State Constitutional Provisions and Statutes ............................ 1399
1. History of Gun Control ................................................ 1399
2. Collective v. Individual Right ........................................ 1400
3. Relation to a Well Regulated Militia .............................. 1401
D. The Right To Bear Arms in Texas ........................................... 1402
E. Other Constitutional Limitations ............................................... 1404
III. A NEW TREND IN GUN CONTROL: CRIMINAL LIABILITY
FOR NEGLIGENT STORAGE OF FIREARMS ................................. 1406
A. Early Beginnings in Tort Liability ............................................. 1406
B. The New Trend in Criminal Liability .........................................1410
C. Criticisms of the State Criminal Statutes .................................. 1416
D. Policy Implications ................................................................. 1417
1. The Effect on Tort Liability: Negligence Per Se.............. 1418
2. Effect on the Judicial System ........................................ 1420
E. Alternatives to Punishment by Prison or Fine .......................... 1420
1. Theories of Punishment ............................................... 1423
2. The Utility of Incarceration .......................................... 1424
3. Education ................................................................... 1427
IV. A DECISION FOR TEXAS ......................................................... 1427
A. The Current Situation in Texas .............................................. 1427
B. Existence and Adequacy of Current Texas Statutes ............... 1428
V. CONCLUSION ............................................................................ 1430
"Gun control" is itself an extraordinarily nebulous concept, one used to refer to an exceedingly wide range of policy initiatives ranging from simple registration or permit mechanisms through mandatory sentencing for people using firearms in committing a crime up to and including outright bans on the ownership, possession, or use of certain kinds of firearms.
Although gun control means a variety of things to different people, two underlying themes are present: gun control and gun safety. The two, however, are not mutually exclusive, and this Comment focuses on how they have become intertwined in light of the growing concern about accidental shootings and the death of innocent children.
Accidental shootings are the fourth leading cause of death of children under the age of fourteen. According to the Center to Prevent Handgun Violence, a child younger than fifteen is killed every day in a household accidental shooting. Five to [Page 1391] eight more children are wounded. Some estimate that the number of children killed in accidental shootings is as high as 1500 each year. In Houston, fourteen children were killed in 1988, thirty-five in 1989, and fifty- five in 1990. The situation is serious, and, if the statistics in Houston are representative, the problem may be getting worse.
To reduce firearm accidents involving children, nine states have recently passed statutes holding adults criminally liable for the death of a child that results from the negligent storage of a gun.  Most of these statutes are similar, imposing liability for having a weapon where a child can gain access to it, unless the gun has a trigger lock or is kept in a locked box. Generally, a violation of these statutes is classified as a misdemeanor.
This Comment first addresses whether the federal government or the states have the power to regulate the keeping, bearing, and, more particularly, the storing of arms. The Second Amendment's right to bear arms, based heavily on common law traditions, limits only the power of the federal government. The states have full power, subject to their own constitutional limitations, to regulate keeping and bearing arms. Because states have the power to regulate the storage of firearms, they have a wide range of options from which to choose the particular methods that best advance their goal of [Page 1392] saving children's lives.
This Comment next addresses the most effective solution to the problem of accidental shootings and the death of innocent children. Several states have passed laws providing for criminal liability in these situations. However, imposing criminal liability, by itself, will not result in a change of behavior as it will only have an effect after the fact--after someone is dead. In addition, because many of these tragedies occur within a family, the only effect that prison sentences will have will be to take away another loved one. Also, these specific criminal statutes are redundant because most, if not all, states already have more general statutes dealing with criminal negligence. Alternative sentences, such as community service in the area of gun safety, are less harsh to an already despairing family and are more beneficial to the community. However, these too are primarily effective after the fact In addition, most municipalities have run out of funds for this type of sentencing program. Thus, the best overall approach is education. Systematic programs through schools, communities, television, and most importantly the home, are the best way to prevent death and to change the thoughtless behavior of both parents and children.
II. THE RIGHT TO KEEP AND BEAR ARMS
A. Common Law Right to Keep and Bear Arms
When analyzing laws that potentially conflict with a constitutional guarantee, the pertinent question is whether the government has the power to regulate and, if so, to what extent. The primary limitation on government in this context is the Second Amendment, which provides that the right of the people to keep and bear arms shall not be infringed. However, this has been interpreted, based on common-law traditions and the intent of the framers of the Constitution, to limit only [Page 1393] the power of the federal government.
Common law did not recognize an absolute right to keep and bear arms. Rather, statutes have regulated this area since 1328. Before the American Revolution, the colonies adopted state constitutions, which usually contained a declaration or bill of rights, the direct antecedent of which was the English Bill of Rights of 1689. The English Bill of Rights declared "[t]hat the subjects which are protestants, may have arms for their defence suitable to their conditions, as allowed by law." To understand the import of this statement, one must look at the grievances that brought it into being.
King James II maintained a large standing army to fulfill his objectives of ruling absolutely and advancing Catholicism in England. Following William of Orange's successful entry into London, Parliament agreed on a Declaration of Rights, which later became part of the English Bill of Rights. This document began with a list of grievances against the Crown, including the claim that King James II was attempting to exterminate the Protestant religion and the laws and liberties of England by arming the Catholics and disarming the Protestants. Viewing the declaration together with the religious strife occurring at the time of its adoption, the right to have arms appears to have been designed to assure Protestant participation in military affairs and to preserve the Protestant religion.  In this regard, the right to bear arms may be considered a class [Page 1394] right, not an individual right. Furthermore, the right is limited by the important qualification, "as allowed by law," which effectively permits Parliament to define the scope of the right. The English Bill of Rights contains no assurance of an individual right to bear arms.
B. The Constitutional Right to Keep and Bear Arms: The Second Amendment
1. The Passage of the Second Amendment. A driving force behind passing the Second Amendment was the colonists' fear of military rule. In Burton v. Sills, the court stated that the colonists believed the state militia was the appropriate organ for defense and standing armies were only acceptable in extreme circumstances. Colonists objected to many aspects of a standing army, such as the quartering of troops in private homes, court martialing of civilians, the use of mercenary soldiers, and the capturing of military arms. Additionally, the independence and superiority that a standing army possessed, compared to that of a civil power, concerned the colonists.
Article 17 of the Massachusetts Declaration of Rights [Page 1395] serves as evidence of this fear of military rule. The Declaration states:
The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
The people's distrust of standing armies is readily apparent in the second sentence of this Declaration.  The right to bear arms is one held by all citizens and is necessary for their common defense. 
The United States Constitution, in Article 1, Section 8, Clauses 15 and 16, grants Congress the power to call on the militia "to execute the Laws of the Union, suppress Insurrections, and repel Invasions,"  and the power to provide for organizing, arming and disciplining the militia. The Second Amendment was adopted to quiet the fears that the congressional powers under these two clauses would destroy the state militia.
2. Limitation Only on the Federal Government. The [Page 1396] general view is that the Second Amendment is a limitation only on the federal government and not on the states. In United States v. Cruikshank, the Supreme Court stated that the Second Amendment means nothing more than the right to bear arms shall not be infringed by Congress. When confronted with the issue again, the Supreme Court upheld its decision that the Second Amendment only operates against the federal government, and the states have generally followed the Supreme Court's interpretation.
3. Collective Right v. Individual Right. A major dispute in the interpretation of the Second Amendment's right to bear arms centers around the question of whether the amendment creates a collective or an individual right. The collective rights approach views "the second amendment as a guarantee only of the right of state governments to maintain organized [Page 1397] militia units free from federal disarmament." This interpretation of the Second Amendment protects the state alone; individuals are not entitled to its protection. In United States v. Miller, the Supreme Court accepted the collective right approach, which is supported by the majority of commentators. Thus, there is no federal constitutional right for an individual to bear arms.
A minority of commentators have adopted an individual rights view, opposing the collective right approach. This approach places emphasis on the positive grant contained in the Second Amendment's second clause: "the right of the people to keep and bear Arms, shall not be infringed." Under this view, the framers guaranteed an individual's right to bear arms in order to create an armed citizenry from which states could fashion organized units. A state's ability to gather a militia would be free from federal control. Under this theory, an [Page 1398] individual would be able to invoke the protection of the Second Amendment.
4. Relation to a Well Regulated Militia. The Supreme Court, in United States v. Miller, adopted the view that the Second Amendment right is inapplicable in the absence of a reasonable relationship to the preservation of a well regulated militia. The Court reasoned that at the time the Constitution was written, the militia consisted of all males physically able to serve, and was based on the assize of arms principle, which imposed an obligation on all adult males to possess arms. Today, however, no general obligation exists to furnish one's own weapons for service in the militia, currently known as the National Guard. The "militia" is currently supported and equipped with public funds.
Although courts cite Miller for the general proposition that the right to bear arms exists only in relation to a well regulated militia, some courts have had difficulty interpreting the [Page 1399] Miller Court's actual holding. In Cases v. United States, the circuit court stated that Miller did not formulate a general rule, but that the rule expressed by the Supreme Court only disposed of the specific facts before it. The court in United States v. Warin  agreed that the Supreme Court did not establish a general rule in Miller and considered the case before it on its own facts. In Commonwealth v. Davis, the court recognized that the purpose of the Second Amendment was to free the states from federal interference, but Congress was not prohibited from regulating firearms through its other powers, such as the commerce power.
C. State Constitutional Provisions and Statutes
1. History of Gun Control. Before 1934, there were no federal restrictions on the possession or use of firearms. Because of the recent origin of federal statutes in this area, [Page 1400] early decisions interpreting the Second Amendment, as it applies to arms restrictions, involved state and not federal legislation. In three early decisions, Miller v. Texas, Presser v. Illinois, and United States v. Cruikshank, the Supreme Court held that the Second Amendment limits only the federal government and not the state. Because the Second Amendment only limits the federal government, it is necessary to analyze the state constitutional provisions concerning the right to bear and keep arms to predict the constitutionality of future gun regulation.
2. Collective v. Individual Right. Most commentators agree that the Second Amendment protects the right to bear arms as a collective right, not as an individual right. Because of this interpretation, an individual has no federal right to bear arms. However, several states have extended the right to keep and bear arms to individuals rather than to the public as a collective body. Notwithstanding the individual right conferred by state constitution, many state gun control laws are upheld as a reasonable exercise of the state's police power. [Page 1401] In determining whether a restriction is a reasonable exercise of the police power, the interest of the government is usually given preferential treatment and states have much latitude in adopting measures to protect the public's health and safety. In contrast, other state courts have upheld state gun control laws and city ordinances on the basis that the state constitutional right to keep and bear arms applies to the people as a collective body, not as an individual right. The decision to uphold a particular gun control law will often focus on whether or not it is reasonably related to a well regulated militia.
3. Relation to a Well Regulated Militia. States also vary in their interpretation of what weapons are included in the right to bear arms. Some states maintain that the right to bear arms is limited to weapons traditionally used by the [Page 1402] militia. In contrast, other states extend the right to non-traditional weapons. In such cases, the question becomes whether the state statute constitutes a reasonable exercise of the police power under the state constitutional provisions. However, whether or not a court finds that the right to possess and use firearms is an individual or collective right, or related to the traditional weapons used in the militia, it will uphold most statutes regulating the possession of firearms.
D. The Right To Bear Arms in Texas
The Texas approach to the right to bear arms in an interesting one. Although having the stereotype of cowboys carrying their pistols on their hips, Texas is one of the few states [Page 1403] that prohibits the bearing of pistols by private individuals. Exceptions exist for property owners on their own premises, for travelers, for hunters and sportsmen for recreational use, for security officers, and for peace officers. In contrast, a majority of states allow their citizens to carry firearms openly in public or require permits for the carrying of concealed weapons.
Texas has adopted the approach that the Second Amendment of the United States Constitution does not apply directly to the states. The Texas Court of Criminal Appeals stated that the Second Amendment does not preclude a state from imposing regulations on the keeping and bearing of arms. With the Second Amendment foreclosed as a limitation on the state's power to regulate in this area, it becomes necessary to determine what rights and protections are afforded to the individual under the Texas Constitution.
The right to bear arms in Texas was adopted in 1876 in the Bill of Rights and has remained unchanged ever since. The guarantee was intended to repeal the 1869 Constitution's broad grant of legislative power and to overrule an unpopular 1871 statute. The change in language had several effects: (1) the right was made absolute in form, not contingent on legislative regulation, and subject only to the legislature's power to regulate the wearing of arms; (2) legislative power to regulate the keeping of arms was prohibited; (3) the "bearing" of arms was no longer subject to regulation, while the [Page 1404] "wearing" of arms could be regulated but not prohibited; and (4) the power to regulate was subject to the limitation that it was intended to be used to prevent crime. This new guarantee, however, did not reinstate the right to bear arms in Texas. The courts continued to rely on the precedent of State v. Duke, failing to analyze the legislative intent behind the new right as stated.
The right to bear arms contained in the United States Constitution, in addition to the similar right in the Texas Constitution, serves as little limitation on the power of the legislature to regulate arms. Analysis of additional constitutional safeguards is necessary to determine if any are applicable and can serve as a limitation on regulation in this area.
E. Other Constitutional Limitations
The Ninth Amendment offers additional protection for the right to bear arms. The Ninth Amendment states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Justice Powers' concurring opinion in Masters v. State suggests that the issue was more complicated than indicated by the majority. Justice Powers disagreed with the majority theory that the individual would not possess a right unless the Second Amendment granted that right. [Page 1405] Self-defense is a right usually retained by citizens in an organized society, though not mentioned in the Constitution. It is a natural right which revives if society is unable to protect a person. Justice Powers found that the right to bear arms was guaranteed to the people, both explicitly and implicitly. On appeal, the Texas Court of Criminal Appeals acknowledged that the United States Supreme Court had not decided whether the right to keep and bear arms was a preexisting right that government could not deny or disparage under the Ninth Amendment.
The United States Supreme Court has never addressed the issue of whether the Fourteenth Amendment incorporates the Second Amendment, thereby extending its limitations to the states. The Fourteenth Amendment, however, has been held to incorporate other rights and extend their protections against the state. In Miller v. Texas, the Supreme Court declined to address the issue of whether the Fourteenth Amendment limited the power of the states because this issue had not been raised in the lower court. However, just three years after Miller the Supreme Court held that the right to compensation for property taken by the state was incorporated by the Fourteenth Amendment. Additionally, from 1920 to the present, the Supreme Court has held that the Fourteenth Amendment protects several areas related to state criminal procedures. The primary issue in this context is whether [Page 1406] the right to bear arms is so fundamental that the Fourteenth Amendment extends the protection offered by the Second Amendment to the states. However, this question is left to future Supreme Court decisions.
III. A NEW TREND IN GUN CONTROL: CRIMINAL LIABILITY FOR NEGLIGENT STORAGE OF FIREARMS
A. Early Beginnings in Tort Liability
As a result of their broad power to regulate arms, states have had numerous options before them with which to save lives. However, not every regulatory option will minimize accidental deaths effectively without imposing unnecessary costs on society. Because the goal of gun control laws is to save lives, their primary focus cannot be punitive. Instead, the laws should focus on changing the thoughtless behavior of both parents and children that leads to accidental deaths.
One option is already in place: tort liability for negligent storage of arms. In fact, cases imposing civil liability for this offense date back to the turn of the century. In recent years, [Page 1407] imposing civil liability for negligent storage of a firearm has increased, leading one commentator to consider this trend a new form of gun control. Furthermore, another commentator has argued that the imposition of liability could create such a financial burden on those who make, sell, and own firearms that it could constitute a ban on their ownership by citizens.
The general rule is that a person cannot be held liable for keeping a firearm in one's home. Rather, liability has been imposed based on whether the defendant knew or should have known of the probability of misuse. In suits involving a minor's misuse of a firearm resulting in injury to a third person, the courts will look at several factors in deciding whether the defendant knew or should have known of the probability of misuse including knowledge of the minor's possession of the firearm; prior use of a gun by the minor; experience, [Page 1408] disposition, and age of the minor; whether the gun was loaded or, in the case of an unloaded gun, the accessibility of the shells; and statutory violations for allowing the minor to possess a gun. Although owners are required to exercise reasonable care in the storage of their firearms, they are not liable for misuses which are not reasonably foreseeable, as determined by the above factors.
The Restatement (Second) of Torts suggests two provisions dealing with the accessibility of firearms to children resulting in injury to third persons. Section 308, entitled Permitting Improper Persons to Use Things or Engage in Activities, states: [Page 1409]
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
The comment to this section reveals the drafters' intent to cover the situation in which an injury results from a minor finding a loaded gun. The second relevant provision of the Restatement (Second) of Torts, entitled Duty of a Parent to Control Conduct of Child, states:
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create as unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.
This section provides an illustration involving a situation in which a parent knows of a minor misusing a firearm and fails to take corrective action. Courts have cited both Section 308 and 316 as support for imposing liability on parents for the injuries to a third person caused by a minor's misuse of a firearm. These Restatement sections, by definition, only ad-[Page 1410] dress the imposition of civil liability for the negligent storage of firearms.
B. The New Trend in Criminal Liability
Nine states have addressed the problem of children's use of firearms, and the injury of innocent bystanders, through criminal statutes imposing liability on the owner of a firearm for injuries resulting from the negligent storage of a firearm. The nine states include California, Connecticut, [Page 1411] Florida, Hawaii, Iowa,  Maryland, New [Page 1412] Jersey, Virginia, and Wisconsin. The statutes of [Page 1413] California, Connecticut, Florida, Hawaii, Iowa, Maryland, New Jersey and Wisconsin are very similar in their provisions.  The statutes all contain provisions allowing gun owners to eliminate potential liability by following certain precautions, such as installing trigger locks or keeping the gun locked in a box.  Additionally, many of these statutes list exceptions to the imposition of liability if possession of the firearm by the child is obtained through illegal entry onto the premises; no one reasonably expects that a child is likely to be present on the premises; no one reasonably expects that a child will gain access to the gun; or, if the gun is carried on the person or in such close proximity to the person that it can be readily retrieved. The Maryland statute also limits liability when the minor is supervised by a person eighteen years old or older, or when the minor has a certificate of firearm and hunter safety. In contrast, the Virginia statute is not drawn as narrowly and leaves much to the courts' interpretation. [Page 1414]
In 1989 Florida became the first state to pass a statute imposing criminal liability for the negligent storing of a firearm. The statute was the result of public outrage at the accidental shootings of several children in a short period of time. The legislature considered the need for this law so urgent that it held a special session to pass the law. Soon thereafter California followed with a similar statute in an effort to decrease the number of accidents involving children and guns.
Because the advent of these statutes occurred so recently, few cases have arisen under them.  The fact scenario required to warrant prosecution of offenders remains "murky."  The cases that have arisen have been emotional melting pots, combining the emotional loss or injury of a child with additional grief at facing prosecution for one's negligence. For example, California has faced two such emotional situations since it enacted its statute. The first situation involved the death of a four-year-old child who found his grandfather's pistol. The second situation involved a three-year-old child who shot himself in the leg with his brother's gun.
The first person charged under the California statute was Nicholas Conchas. The incident occurred just a few hours [Page 1415] after the new law took effect. Jesus Valencia, the four-year-old grandson of Nicholas Conchas, found his grandfather's gun, shot himself in the chest, and died. Nicholas Conchas pled not guilty to the charge of negligently storing a firearm. Although the court could have imposed a sentence of up to three years and a $10,000 fine, the court sentenced him to three years probation and community service. The court chose an alternative to jail because it was seen as being more beneficial to the community.
Ten days after the California statute took effect it was put to the test again when prosecutors filed charges against Carlos Ortiz. Ortiz, a parolee, kept a loaded gun in the house, despite objections by his parents. Unfortunately, his three-year-old brother found the gun and shot himself in the leg. Ortiz pled guilty and was sentenced to three years in prison.
The avoidable injury or death of a child is nothing less than tragic. However, legislators, in responding to such tragedies, should seek the best solution for the community as a whole. Certainly no one favors a negligent act which precipitates the death of a child. However, is the imprisonment of a merely negligent adult an acceptable solution, especially if the negligently adjudged adult provides sole support to a household? It is important that the legislative response to this problem genuinely further the interests of our society.[Page 1416]
C. Criticisms of the State Criminal Statutes
Statutes currently in effect provide penalties for criminally negligent behavior, such as irresponsibly storing a gun. Because these statutes are broad enough to cover storage of guns, any additional statute specifically regulating the storage of firearms would be redundant and unnecessary. It would be impossible, as well as impracticable, to enact a law for every situation imaginable. Indeed, some maintain that public opinion is not always the best channel for new legislation because it can develop into piecemeal legislation targeted at highly visible short-term solutions with no underlying coherency. Evidence exists, however, that existing laws are not presently being used to prosecute adults for the negligent storage of firearms.
Although the purpose of imposing criminal liability for the negligent storage of firearms is to prevent injury, some commentators doubt that these statutes will change this type of thoughtless behavior. These laws will only come into play after the fact and will be difficult to enforce before an actual shooting occurs. Sluggish sales of trigger locks after the approval of the Florida bill indicates that the new laws will have little effect on behavior and, therefore, little preventative effect on accidental shootings involving children. Another concern [Page 1417] with such laws is that they will significantly impair the ability to use firearms for self-defense.
D. Policy Implications
1. The Effect on Tort Liability: Negligence Per Se. Passing a criminal statute has a broader effect than merely penalizing violators. State legislatures should be aware of these additional ramifications when attempting to alleviate the problem of accidental shootings. Imposing criminal liability will directly affect potential tort liability because the injured party may be able to sue the violator under the doctrine of negligence per se. This tort doctrine provides a private right of action for a violation of a statute if the injured person is within the class that the legislature intended to protect with the statute.
In Texas, as in other states, the party relying on the theory of negligence per se has the initial burden of proving the statutory violation. Once this burden has been satisfied the violator must present evidence of a legally acceptable excuse. If no legally acceptable excuse exists the trial court [Page 1418] may find negligence as a matter of law. An important consequence of changing the party with the burden of proof is that it will be easier to impose civil liability. Thus, criminal liability for the negligent storage of firearms could cause an increase in tort liability.
When making a decision concerning the imposition of criminal liability, the legislature should be aware that an increase in civil litigation could result. In fact, one commentator suggested that the costs of civil liability could weigh so heavily on those involved in the manufacturing, selling and owning of firearms that it would effectively ban guns in this country. However, if the legislatures are aware of this possibility, they can include provisions in the criminal statute prohibiting the use of that statute in a civil context, as Maryland has done.
2. Effect on the Judicial System. Imposing criminal liability may increase the strain on an already overburdened criminal system. In fact, the prison and criminal justice system is so strained that it lacks funds to deal with those who have committed intentional, premeditated and violent acts. Consequently, before the states begin criminalizing merely negligent acts, they must consider whether they have the resources to pay for the additional "criminals." Until 1969, the federal judiciary did not interfere with the administration of the state prison systems, but in 1969 the Warren Court, in Johnson v. [Page 1419] Avery, held that the prohibition against cruel and unusual punishment contained in the Eighth Amendment covered a large array of prisoner complaints. Since this holding, forty-one states have been ordered to reduce prison overcrowding.
Texas is among the states that have been ordered to reduce prison overcrowding. The situation is a serious one: "Thousands of inmates are waiting in county jails to enter the already overcrowded state prison system, criminals are serving less time under stiffer sentences, and the taxpayers are in no mood to fund another major prison expansion." Between 1985 and 1991 the number of inmates in the Texas prison system almost doubled. Attempting to reduce overcrowding has resulted in felons serving a median of thirteen percent of their sentences.
Interestingly, the increase in prisoners may not be due to an increase in crime. For example, in Pennsylvania the prison population increased by 134 percent from 1989 to 1990, while the crime rate increased by only eight percent. The number of people in prison obviously reflects more than just the crime rate. One reason for the disproportionality is a "knee-jerk" reaction by legislators responding to well-publicized crimes, tragedies and public interest groups. Laws criminalizing the negligent storage of firearms may be one of these knee-jerk reactions.
One solution to the problem of prison overcrowding is to make effective use of alternatives to prison sentences. U.S. Attorney General Janet Reno has suggested that states should utilize alternative sentencing programs so that prison space is preserved for violent offenders. These alternative programs [Page 1420] include the military-style discipline program known as boot camp, intermediate sanction facilities, electronic monitoring, and drug rehabilitation. These programs offer a statistically improved possibility of returning the individual to society as a productive member. Indeed, Harris County judges are making effective use of such alternative programs, sending twenty-eight percent fewer criminals to jail in 1992 as compared to the year before. These new programs are plagued, however, with the same difficulty as the prison system: lack of sufficient funds. Therefore, without additional funding, both the Texas prison system and the alternative programs are not capable of handling the present situation, much less any increase.
Alternative sentences can be used to reduce prison overcrowding, but would they be effective as a penalty to deter parents from negligently storing weapons? Sending parents who have lost a child through gun education classes or community service programs would undoubtedly teach them how to properly store weapons. However, participation in such programs will not bring an innocent child back. Because the goal is to save children, programs that work toward changing behavior before a child is killed would be more effective than a program or prison sentence that has an effect only after death.
E. Alternatives to Punishment by Prison or Fine
1. Theories of Punishment. Criminal liability, particularly imprisonment, is too harsh a remedy for a negligent act, except in extreme circumstances. Most of the activities society criminalizes involve intentional acts such as rape, murder, and [Page 1421] possession or distribution of drugs. Lacking the culpability of other criminals, one who negligently stores a firearm is less deserving of harsh punishment in the form of imprisonment or fines. In addition, imprisoning a parent after negligently allowing a child access to a firearm serves as a double penalty on the family. In some cases, such as Nicholas Conchas', the negligent person may be the sole means of family support. The effect of these laws may be to prevent a person from continuing to be a productive member of society. However, even assuming that these people deserve criminal punishment, the effect of imprisoning someone is unknown. Will it change a person's behavior and deter others, or will imprisonment merely keep the person out of society for a specified period of time?
"Crime is an intentional act or omission in violation of a criminal law, committed without defense or justification, and sanctioned by the state as a felony or misdemeanor." Throughout history there has been a consensus that criminals must be punished, however, there has also been a difference of opinion as to the desired result of punishment. Three main theories have developed: retribution, deterrence and rehabilitation. 
Retribution is based on the theory that every crime requires payment in the form of punishment. Punishment in early times fulfilled two functions; (1) it was the execution by man of the gods' vengeance for the violation of divine rules, [Page 1422] and (2) it served as revenge for the individual who suffered the harm. Corporal punishment constituted the main method of punishment until reform in the criminal law after 1750 substituted imprisonment for corporal punishment.
Imprisonment was promoted on the assumption that it would act as a deterrent to crime. The theory behind general deterrence is that punishing violators will cause other possible offenders to resist the temptation to commit the crime. The theory behind individual deterrence is that people will refrain from acts that are likely to result in painful consequences.  The theory of deterrence dates back to Plato, who stated:
In punishing wrongdoers, no one concentrates on the fact that a man has done wrong in the past, or punishes him on that account, unless taking blind vengeance like a beast. No, punishment is not inflicted by a rational man for the sake of the crime that has been committed¾after all, one cannot undo what is past¾but the sake of the future to prevent the same man or, by the spectacle of his punishment, someone else from doing the wrong again . . . . 
Rehabilitation, focuses on the restoration of an individual to his or her greatest potential. This theory rests on the assumption that at one time there was a healthy individual who can now be restored. The presumption of a redeemable human being inevitably led to the re-evaluation of criminal penalties, and the emergence of rehabilitation. The object of rehabilitation is not to punish the offender, but rather to change behavior by changing attitudes, teaching new skills or renovating the individual's environment Indeterminate prison sentences, which directly tie a prisoner's release to his or her [Page 1423] behavior in prison, resulted from the emphasis on rehabilitation, over mere punishment, as the proper goal of incarceration.
Regardless of the theory underlying the punishment or rehabilitation of the offender, crime prevention should be the ultimate goal. Existing measures, failure to prevent crime, and the corresponding need for ongoing development of crime prevention programs, demonstrate the complexity of the situation. Thus, it is difficult to solve the problem of accidental shootings by minors because penalizing adults, after the fact, may not prevent any deaths. Proponents of imposing criminal liability believe that the only way to insure the safe handling and storage of firearms, thereby reducing the number of accidents involving children, is to impose serious criminal consequences. Opponents argue that these laws will not change the behavior of firearm owners and punishing those who have already endured the death of a loved one is cruel.
No one really knows what effect the prison system will have on an individual, thus society must carefully consider the consequences of imprisoning people who may not have committed an act that mandates punishment or retribution. Parents who have stored firearms in a manner that allows a small child access to them should be included in this category.
2. The Utility of Incarceration. Parents do not deserve the harsh conditions of imprisonment. Prisons do not have the [Page 1424] facilities to help a parent cope with the loss of a child. In addition, prison life involves physical, as well as psychological, isolation; prevalence of homosexual behavior, rape and potential exposure to AIDS; and, lack of adequate medical facilities. Thus, prison is too harsh a remedy considering that it will not result in a change in parents' behavior or save lives.
3. Education. A more effective approach is to educate parents and children on firearm safety. Education, more than prison sentences, fines, or alternative sentencing, will prevent unnecessary deaths. Education is the best hope for altering the behavior that leads to accidental death. Education has the advantage of flexibility and, thus can take many forms. For example, one form of education currently being implemented is the Gun Awareness Week program, which is conducted on a [Page 1425] city level basis. This program's objectives include teaching children about the dangers of using or playing with guns and that differences must be resolved without violence.
Another innovative program has been developed by a Washington D.C. lobbyist group. This classroom program involves instructing students about the inherent dangers associated with guns. This program was instituted in Dade County, Florida, after a series of shootings involving minors. Students act out skits illustrating how quickly anger can flare up as a result of minor disputes, which can escalate into violence with the use of a gun. The program also teaches children that the violence on television is not real. This program has been credited with reducing the number of associated shootings involving children.
The National Rifle Association (NRA) has its own educational programs. The Eddie Eagle Safety program encourages youths to avoid the use of guns entirely. Other programs sponsored by the NRA include distributing gun safety coloring [Page 1426] books to school districts, running gun safety ads on the children's Nickelodeon channel, and sending advertising spots concerned with gun safety to television stations. Additionally, the NRA urges elementary school systems to implement safety courses.
Television, and its glamorization of violence, can pose a significant obstacle to any educational program. Children today are growing up accustomed to seeing violence on television. Unlike television, where the hero always wins such behavior in real life can have devastating effects. To counter the effects of television violence, any educational program teaching gun safety should discuss television violence. In addition, networks should take more responsibility for their programming. It is difficult to teach children gun safety when they are inundated with television scenes depicting violence and the irresponsible handling of firearms. Television programmers should decrease the level of violence, particularly in children's shows and prime-time shows. In addition, they should use their power as this country's prime source of entertainment to teach children about the danger of firearms.
Efforts to protect children from guns must be made on several levels. The first level necessarily involves the education of firearm owners that have children. Hopefully, this will result in more responsible handling and storage of firearms and will reveal to parents the need to educate their children about gun safety. Parents are the role models for their children and, as such, should take a key role in explaining gun safety and the difference between reality and fantasy. Schools can act on a secondary level by providing more classroom programs. Finally, community centers and police departments can become [Page 1427] more involved by instituting community-wide programs.
In addition to education as preventative medicine, it is also a preferable alternative to a prison sentence or monetary fine. Judges should be given the discretion to order an alternative sentence. This form of "punishment" would serve to educate the negligent offender and the community and decrease the number of shooting incidents involving children.
IV. A DECISION FOR TEXAS
A. The Current Situation in Texas
Texas has recently experienced an increase in the number of accidental shootings involving children. In Houston, Texas' largest city, the statistics reveal this worrisome trend. A disturbing element common to all of the incidents in Houston was the accessibility of the firearms to the children, especially because many of the firearms involved were improperly stored. The costs of this emerging crisis, however, manifest themselves not only in the actual loss of, or injury to, a child, but also in the increased financial burdens on the public.
Therefore, Houston decided to address the issue by passing a city ordinance targeted at the negligent storage of firearms resulting in injury to a minor. The focus of the ordinance, [Page 1428] known as the Gun Responsibility and Safety Ordinance, is to reduce the incidence of shootings by minors. Violation of the ordinance constitutes a misdemeanor with a minimum fine of $200 and a maximum fine of $500. Discretion, however, is given to the municipal court to order training in gun safety in lieu of a fine. The ordinance makes it unlawful for any adult to knowingly, recklessly, or with criminal negligence allow a child to obtain unsupervised access to a firearm.
B. Existence and Adequacy of Current Texas Statutes
Texas has several sections in its penal code that could serve as a basis for prosecuting those whose negligent storage of a firearm results in the injury or death of a child. These are more general statutes prohibiting injury to a child, endangering a child, and defining "the term criminally negligent". These statutes are broad enough to provide a basis for prosecuting negligent parents who have allowed their child to have access to a gun. Therefore, a more specific statute is unnecessary. [Page 1429]
The Texas Penal Code contains two sections that relate specifically to minors. Section 22.041, entitled Abandoning or Endangering Child, provides that:
(b) A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.
(c) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.
In addition, Section 22.04, entitled Injury to a Child, Elderly Individual or Invalid, provides that:
(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or invalid individual: (1) serious bodily injury; (2) serious physical or mental deficiency or impairment; (3) disfigurement or deformity; or (4) bodily injury.
Both sections include the lowest requisite mens rea: criminal negligence. In Texas,
[a] person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
The mens rea requirement in Texas is comparable to that required by the criminal statutes passed in eight other states. Furthermore, Section 22.04 has the advantage of [Page 1430] having been held constitutional. Section 19.07, although not specifically aimed at injuries to children, is also applicable to the situation in which the result of negligently storing a firearm is the death of a child.  Entitled Criminally Negligent Homicide, this section provides that a person who causes the death of an individual by criminal negligence commits an offense. It thus requires the same mental state as Sections 22.04 and 22.041, as defined in Section 6.03. This section has also survived constitutional scrutiny.
Few limits exist on the government's power, state or federal, to regulate the keeping and the bearing of arms.  Therefore, the question for Texas is whether or not imposition of criminal liability for the negligent storage of firearms is best for society as a whole. This is ultimately a policy question that must take into consideration the best way to change parents' behavior, the best way to reach children, and ultimately what will prevent the death of innocent children. Criminal liability in the form of specific statutes regulating the negligent storage of firearms is not the answer. In fact, there is no need for new criminal statutes, as Texas has several provisions in its penal code that serve as a sufficient basis for prosecution in this area. These statutes are broad enough in scope to cover many situations, including the negligent storage of firearms. Furthermore, Texas is not in a position to handle additional burdens on its criminal system, either in the form of prison sentences or alternative sentencing programs.
Ultimately, the education of adults concerning the [Page 1431] responsible handling and storage of firearms is the best method of decreasing accidental injuries and death of children from the negligent storage of firearms. It is essential to educate children along with adults regarding the danger of handling weapons. Education targets the real problem, negligent behavior. Thus, education can serve as the best preventative medicine; after all, the goal is to eliminate the injury and death of innocent children, not to punish the adults.
1. JAMES D. WRIGHT ET AL., UNDER THE GUN: WEAPONS, CRIME, AND VIOLENCE IN AMERICA 310 (1983).
3. E.g., Ashley Dunn, When Accidental Death of a Child is not Woe enough: Weapons: New Statute Makes Parents Criminally Liable for Gun Negligence. Some Question Whether Law is Cruel, L.A. TIMES, Mar. 13, 1992, at A1 (discussing California's extensive problem with children dying from accidental shootings).
4. Royal Ford, Teen-ager's Death Sharpens Gun Debate, BOSTON GLOBE, Jan. 10, 1991, Metro/Region, at 27.
6. Ben Winton, Bill Designed to 'Kid-Proof' Stored Guns, PHOENIX GAZETTE, Feb. 1, 1993, at A1 (quoting a spokesperson from the Center to Prevent Handgun Violence); James M. Gomez, Deadly Shot Amplifies Debate; Gunplay: Death of a 13-Year-Old by Pistol-Wielding Playmate Comes as Legislators Advance a Bill that Would Make Parents Liable in Juvenile Shootings, L.A. TIMES, May 2, 1991, at B1 (quoting a state representative who estimates that 10 children are shot by other children each year).
7. John Williams, Protecting the Children from Guns; Mayor Lukewarm on Adults, HOUS. CHRON., Mar. 5, 1992, at A28.
8. Sheila J. Lee, Houston Gun Ordinance as Simple as Saving the Life of a Child, HOUS. CHRON., May 3, 1992, Outlook, at 1.
9. Refer to notes 155-95 infra and accompanying text.
10. CAL. PENAL CODE § 12035 (West 1992); CONN. GEN. ANN. § 29- 37i (West Supp.1993); FLA. STAT. ANN. § 790.174 (West 1992); HAW. REV. STAT. ANN. § 134-10.5 (Michie Supp.1992); IOWA CODE ANN. § 724.22(7) (West Supp.1993); MD. CODE. ANN., CRIM. LAW § 36K (Supp.1992); N.J.STAT. ANN. § 2C:58-15 (West Supp.1993); VA. CODE ANN. § 18.2-56.2 (Michie Supp.1993); WIS. STAT. ANN. § 948.55 (West Supp.1992).
11. FLA. STAT. ANN. § 790.174; VA. CODE ANN. § 18.2-56.2; WIS. STAT. ANN. § 948.55.
12. Refer to notes 26-135 infra and accompanying text.
13. Refer to notes 26-58 infra and accompanying text.
14. Refer to notes 86-120 infra and accompanying text.
15. Refer to notes 86-120, 232-80 infra and accompanying text.
16. Refer to notes 155-95 infra and accompanying text.
17. Refer to notes 233-35 infra and accompanying text.
18. Refer to notes 184-91 infra and accompanying text.
19. Refer to notes 196-204 infra and accompanying text.
20. Refer to notes 232-59 infra and accompanying text.
21. Refer to notes 201-03 infra and accompanying text.
22. Refer to note 31 infra and accompanying text.
23. Refer to notes 260-80 infra and accompanying text.
25. Refer to notes 26-135 infra and accompanying text.
26. U.S. CONST. amend. II.
27. Refer to notes 54-58 infra and accompanying text.
28. Burton v. Sills, 248 A.2d 521, 525 (N.J.1968) (concluding that because the right to bear arms was not created by or dependent on the U.S. Constitution, it could be regulated and, therefore, the gun control law at issue did not violate the Second Amendment).
29. See, e.g., id. at 527 (stating that the Statute of Northampton in 1328 regulated the right to bear arms).
30. See, e.g., Peter B. Feller & Karl L. Gotting, The Second Amendment: A Second Look, 61 NW.U.L.REV. 46, 47 (1966) (discussing the events resulting in the passage of the Second Amendment).
31. Id. (noting that the idea for a bill of rights came, in part, from the English Bill of Rights of 1689).
32. Id. at 48 (citing Bill of Rights, 1 W. & M., Sess. 2, ch. 2 § 7; SOURCES OF OUR LIBERTIES 246 (Richard L. Perry & John C. Cooper eds., 1959)).
39. Burton v. Sills, 248 A.2d 521, 526 (N.J.1968) (citing Feller & Gotting, supra note 30, at 48). The history and terms of the English Bill of Rights reveal that the reference to the Protestants' right to have arms was intended to be a class right, not an individual right; the right was not to include individual self-defense. Id. An individual right relates to the specific individual, in this case an individual's right to self-defense. Because individual self-defense was not a purpose of granting Protestants the right to bear arms, that right is necessarily a class right. Id. A class or collective rights approach views the Second Amendment as a guarantee only of the right of state governments to maintain organized militia units free from federal interference. Refer to notes 59-70 infra and accompanying text.
40. See Feller & Gotting, supra note 30, at 49 (stating that Parliament is able to "circumscribe arms-bearing considerably" as a result of this qualification and noting that Parliament exercised this qualification in the Firearms Act of 1937).
41. Commonwealth v. Davis, 343 N.E.2d 847, 849 n. 4 (Mass.1976). The English Bill of Rights actually seems to intend the opposite by denouncing the discriminatory arming of subjects and acknowledging a legislative power to regulate. Id. Today English statutes heavily restrict the possession and carrying of weapons. Id.
42. See, e.g., Burton, 248 A.2d at 526 (stating that during the American colonial days there was great fear of military rule); Davis, 343 N.E.2d at 848-49 (noting that the colonists distrusted standing armies and preferred to look to the militia, which was primarily composed of civilians for their protection) (citing United States v. Miller, 307 U.S. 174, 179 (1939)).
43. 248 A.2d 521 (N.J.1968).
44. Id. at 526.
45. See Feller & Gotting, supra note 30, at 49 (discussing that the oppression of military rule was one of the greatest concerns among the colonists).
47. See, e.g., Commonwealth v. Davis, 343 N.E.2d 847, 848 (Mass.1976) (discussing the impetus behind the passage of Article 17 of the Massachusetts' Bill of Rights).
48. MASS.GEN.LAWS ANN. CONST. pt. 1, art. 17 (1978).
49. See Davis, 343 N.E.2d at 848 (stating that the colonists preferred a militia over a standing army).
50. See id. at 848-49 (stating that this provision is not intended to grant an individual right).
51. U.S. CONST. art. I, § 8, cl. 15.
52. U.S. CONST. art. I, § 8, cl. 16. Congress was also granted the power "for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." Id.
53. See Davis, 343 N.E.2d at 850 (stating that the main reason for adopting the Second Amendment was apprehension that congressional powers granted under Article I, § 8, Clauses 15 and 16 would have destroyed the state militia)
Despite this judicial authority, some legislative history implies a different interpretation of the Second Amendment. In a letter written by Thomas Jefferson to William Smith in 1787, Jefferson remarked:
And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance. Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure.
WRIGHT, supra note 1, at 310.
54. See, e.g., Miller v. Texas, 153 U.S. 535, 538 (1894) (noting that it is a well-settled principle that the Second Amendment only restricts federal power); Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment is a limitation only on Congress and the national government); United States v. Cruikshank, 92 U.S. 542, 553 (1875) (holding that the Second Amendment acts as a limitation only on the national government).
Some early authorities, however, disagree with the view that the Second Amendment acts as a limitation only on the federal government. See, e.g., Nunn v. State, 1 Ga. 243, 250 (1846) (holding that the Second Amendment's language was sufficiently broad to include state governments); English v. State, 35 Tex. 473, 475 (1871) (quoting a statement from a text writer asserting that the Second Amendment encompassed both the state and national governments); In re Brickey, 70 P. 609, 609 (Idaho 1902) (holding that under both the Second Amendment and the state constitution, the state legislature did not have the power to prohibit one from carrying arms in any specified portion of the state).
55. 92 U.S. 542 (1875).
56. Id. at 552. The Court stated that the right to bear arms for a lawful purpose was not granted by the Constitution or dependent upon the Constitution for its existence. Id. The purpose of the amendment is only to restrict the powers of the federal government. Id.
57. See Miller v. Texas, 153 U.S. 535 (1894) (holding that it was well-established that the Second Amendment only operates against federal powers and not state powers); Presser v. Illinois, 116 U.S. 252, 265 (1886) (holding that the Second Amendment acts as a limitation only on the national government).
58. For cases in which state courts held that the Second Amendment acts only as a limitation on the federal government and is not applicable to the states, see Fife v. State, 31 Ark. 455, 458 (1876); Ex parte Rameriz, 226 P. 914, 921 (Cal.1924); State v. Amos, 343 So.2d 166, 168 (La.1977); Commonwealth v. Davis, 343 N.E.2d 847, 850 (Mass.1976); Harris v. State, 432 P.2d 929, 930 (Nev.1967); State v. Sanne, 364 A.2d 630, 630 (N.H.1976); People v. Persce, 97 N.E. 877, 879 (N.Y.1912); Photos v. City of Toledo, 190 Ohio Misc. 147, 161 (Ct.C.P.1969); Ex parte Thomas, 97 P. 260, 262 (Okla.1908); State v. Duke, 42 Tex. 455, 457 (1875). For state cases not consistent with the Court's interpretation, refer to note 54 supra.
59. See, e.g., David T. Hardy & John Stompoly, Of Arms and the Law, 51 CHI.-KENT L.REV. 62, 66 (1974) (discussing the collective approach versus the individual right approach to the Second Amendment).
60. Id. at 67.
61. See id. (arguing that this view of the Second Amendment only protects the states, not individuals).
62. 307 U.S. 174 (1939).
63. Id. at 178. The Court held that:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Id.; see also Burton v. Sills, 248 A.2d 521, 526 (N.J.1968) (stating that the language of the Second Amendment implies that it was not framed contemplating individual rights, but rather with the collective right of the people in mind).
64. See, e.g., Hardy & Stompoly, supra note 59, at 66 (citing John Levin, The Right to Bear Arms: The Development of the American Experience, 48 CHI.-KENT L.REV. 148 (1971); James L. Mann, II, Note, The Right to Bear Arms, 19 S.C.L.Rev. 402 (1967); George D. Newton & Franklin E. Zimring, Firearms and Violence in American Life 113 (1969) (Staff Report to the National Commission on the Causes and Prevention of Violence)).
65. Refer to notes 59-64 supra and accompanying text.
66. See Hardy & Stompoly, supra note 59 at 67 (citing Stuart R. Hays, The Right to Bear Arms, A Study in Judicial Misinterpretation, 2 WM. & MARY L.REV. 381 (1960); Ronald B. Levine & David B. Saxe, The Second Amendment: The Right to Bear Arms, 7 HOUS.L.REV. 1 (1969)).
67. U.S. CONST. amend. II; see also Hardy & Stompoly, supra note 59, at 67 (stating that the individual rights view emphasizes the positive grant in the second clause of the Second Amendment).
68. Hardy & Stompoly, supra note 59, at 67.
69. Id. Various definitions of the militia at the time of the framing of the Constitution seem to support the individual rights view that the framers sought an armed citizenry. See United States v. Miller, 307 U.S. 174, 179 (1939) (defining militia as "all males physically capable of acting in concert for the common defense"); Presser v. Illinois, 116 U.S. 252, 265 (1886) (defining militia as "all citizens capable of bearing arms"). In the past, militiamen usually furnished their own weapons for service so that a law forbidding individuals from keeping arms used in service might have offended the Article 17 right found in the Declaration of Rights; that situation no longer exists. Commonwealth v. Davis, 343 N.E.2d 847, 849 (Mass.1976). Article 17 provides that the people have a right to keep and bear arms for the common defense. MASS.GEN.LAWS ANN. CONST. pt. 1, art. 17 (1978). The provision describes the militia as dangerous in times of peace and, therefore, should only be maintained with the consent of the legislature and be subordinated to civil authority. Id. The present-day militia, known as the National Guard, is supported and equipped with public funds. Davis, 343 N.E.2d at 849.
70. Hardy & Stompoly, supra note 59, at 67 (noting that the minority view interprets the clause referencing the militia in the Second Amendment as an attempt to protect an individual's right to bear arms).
71. 307 U.S. 174 (1939).
72. Id. at 178. The Court held:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
73. Id. at 179.
74. Id. The Court quoted HERBERT L. OSGOOD, THE AMERICAN COLONIES IN THE SEVENTEENTH CENTURY 499-500 (1904), which discussed that both England and the colonies expected all men to possess arms and ammunition for defense and, sometimes, penalized men for not possessing the required arms. See Commonwealth v. Davis, 343 N.E.2d 847, 849 (Mass.1976) (discussing that militiamen were often legally required to furnish their own weapons).
75. See, e.g., Davis, 343 N.E.2d at 849 (recognizing that the policy decisions connected with keeping arms changed when our militia became supported by public funds).
77. See, e.g., United States v. Warin, 530 F.2d 103, 106 (6th Cir.) (agreeing with Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942), cert. denied, 319 U.S. 770 (1943), that the Supreme Court did not lay down a general rule in Miller), cert. denied, 426 U.S. 948 (1976); Davis, 343 N.E.2d at 850 (holding that, although the Second Amendment safeguards state forces from federal interference, Congress may regulate firearms through its other powers).
78. 131 F.2d 916 (1st Cir.1942), cert. denied, 319 U.S. 770 (1943).
79. Id. at 922.
80. 530 F.2d 103 (6th Cir.1976).
81. Id. at 106.
82. 343 N.E.2d 847 (Mass.1976).
83. Id. at 850.
84. See Hardy & Stompoly, supra note 59, at 63-64 (commenting on the late advent of federal legislation in this area, and noting that the early decisions of the Supreme Court applying the Second Amendment involved state legislation).
85. The National Firearms Act of 1934, codified at 26 U.S.C. § 5811 (1988), was the first of such federal statutes passed by Congress. See Hardy & Stompoly, supra note 59, at 63. Acting under Congress' taxing authority, the act imposed a $200 tax on the transfer of certain weapons, including fully automatic firearms, shotguns with barrels shorter than 18 inches, rifles with barrels shorter than 16 inches, and firearms equipped with silencers. Id. at 63 & n. 14; 26 U.S.C. § 5811 (1988). Congress imposed a five dollar transfer tax on certain other weapons. 26 U.S.C. § 5845(e) (1988).
The Federal Firearms Act, passed in 1938, was the second such statute. See Hardy & Stompoly, supra note 59, at 63-64. It required dealers of firearms and ammunition to obtain a federal license and prohibited the interstate shipment of firearms to felons, persons under indictment for felonies, and persons lacking permits, if such were required by state laws. Act of June 30, 1938, ch. 850, § 1, 52 Stat. 1250 (repealed 1968).
The Gun Control Act of 1968 was the third statute passed. See Hardy & Stompoly, supra note 59, at 64. It prohibited the sale, purchase, or possession of any firearms by specified classes of individuals. Id. These individuals included felons, persons adjudicated mentally defective or committed to mental institutions, and those who were "unlawful users of or addicted to marihuana or any depressant or stimulant drug." 18 U.S.C. § 922(d), (g), (h) (1970).
86. Refer to notes 87-89 infra and accompanying text. The Court first dealt with the application of the Second Amendment to federal legislation in 1939 in United States v. Miller. See Hardy & Stompoly, supra note 59, at 64- 5.
87. 153 U.S. 535 (1894).
88. 116 U.S. 252 (1886).
89. 92 U.S. 542 (1875).
90. Miller, 153 U.S. at 538 (stating that it was a well established principle that both the Second Amendment and the comparable Texas constitutional provision operated only on the federal power); Presser, 116 U.S. at 264-65 (holding that statutes forbidding men to assemble as military associations, or to drill or parade with arms did not violate the right to keep and bear arms); Cruikshank, 92 U.S. at 553 (stating that the Second Amendment acts only to restrict the national government); refer to notes 54-58 supra and accompanying text.
91. Refer to notes 54-58 supra and accompanying text.
92. Refer to note 64 supra and accompanying text.
93. Refer to notes 60-65 supra and accompanying text.
94. Refer to note 95 infra and accompanying text.
95. In Rabbitt v. Leonard, 413 A.2d 489, 491-93 (Conn.Super.Ct.1979), the court held that the language of the Connecticut Constitution, which states that " '[e]very citizen has a right to bear arms in defense of himself and the state,' " is different from that of the Second Amendment. (citing Conn. Const. art. 1, § 15 (1988)). A Connecticut citizen has a fundamental right to bear arms. Id. at 491. The court, however, further noted that " '[r]easonable gun control legislation is within the police power of a legislative body to enact; any such restriction imposes a restraint or burden upon the individual, but the interest of the governmental unit is, on balance, manifestly paramount.' " Id. at 493 (citing Mosher v. City of Dayton, 358 N.E.2d 540, 543 (Ohio 1976)).
In Kalodimos v. Village of Morton Grove, 470 N.E.2d 266, 269-79 (Ill.1984), the Supreme Court of Illinois found that the Illinois Constitution broadens the right to bear arms from a collective right, limited to those weapons traditionally used by the militia, to an individual right, covering a wider variety of weapons. Id. at 269. The relevant section states that the police power is the only limit on a citizen's right to bear arms. Ill. Const., art. I, § 22 (1970). Nevertheless the court upheld a city ordinance, which prohibited handguns within the city limits unless it was made permanently inoperable. Kalodimos, 470 N.E.2d at 269, 279. The ordinance was a reasonable use of police power, which had the effect of reducing crime, minimizing the effects of violence in the domestic arena, and preventing "the possibility of serious accidents resulting from the accessibility to children of attractive but dangerous instrumentalities such as handguns." Id. at 275 (emphasis added). The court employed the rational basis test, which requires the challenged legislation to have a rational relationship to a legitimate government interest. Id. at 278; see, e.g., Schubert v. DeBard, 398 N.E.2d 1339, 1341 (Ind.Ct.App.1980) (interpreting the state constitution as granting individuals the right to bear arms for self-defense); People v. Brown, 235 N.W. 245, 246 (Mich.1931) (observing that protection of the right to bear arms under the state constitution was not limited to the militia, but extended to every individual for the defense of himself and the state).
96. See, e.g., Leonard, 413 A.2d at 493 (quoting Mosher v. City of Dayton, 358 N.E.2d 540, 543 (Ohio 1976) for support that " 'the interest of the governmental unit is, on balance, manifestly paramount' ").
97. Id. (stating that the states have generally been accorded considerable leeway in the enactment of regulations protecting the public health and safety).
98. See, e.g., Commonwealth v. Davis, 343 N.E.2d 847, 848-49 (Mass.1976) (interpreting the state constitution as referring to the aggregate of its citizens and not guaranteeing an individual right to bear arms); City of Salina v. Blaksley, 83 P. 619, 620 (Kan.1905) (interpreting the state's Bill of Rights as granting to its citizens a right to bear arms as a collective body); City of Junction City v. Lee, 532 P.2d 1292 (Kan.1975) (quoting Blaksley with approval).
99. See Blaksley, 83 P. at 620 (stating that the law under consideration applied only to the right to bear arms as a member of some lawful military organization); Lee, 532 P.2d at 1295 (finding that the ordinance at issue did not obstruct the right of "the militia or other military organizations to bear arms for the safety and security of society").
100. Compare note 101 with note 102 (illustrating the different interpretations state courts have used to determine whether the right to bear arms applies only to arms traditionally used by the militia).
101. The court in Fife v. State, 31 Ark. 455, 456-61 (1876), interpreted a provision of the Arkansas Constitution, which granted its citizens the right to keep and bear arms, to include only arms that were used for the purposes of war. Id. at 458. The statute in question prohibited the carrying of any pistol as a weapon. Id. at 456. The court reasoned that a pistol was a weapon normally used in "private quarrels and brawls" and was not an effective instrument of war. Id. at 461.
In Ex Parte Thomas, 97 P. 260 (Okla.1908), the court upheld the validity of a state statute making it illegal to carry certain weapons, including a pistol or a revolver. Id. at 265. The court followed the reasoning of the Tennessee courts that the right to bear arms was limited to those usually employed in "civilized warfare" and "constitute the ordinary military equipment." Id. at 262 (quoting Aymett v. State, 21 Tenn. (1 Hum.) 154, 158 (1840)). The relevant provision of the Oklahoma Constitution provides that:
The right of a citizen to keep and bear arms in defense of his home, person, or property, or in the aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.
OKLA. CONST. art. II. § 26 (1907). The court held the right did not extend to "the use of weapons which are usually employed in private brawls, and which are efficient only in the hands of the robber and the assassin." Ex parte Thomas, 97 P. at 262. Additionally, the court took notice of the fact that a different section of the state constitution established that the legislature would provide for the militia; this was further evidence of the fact that the constitution contemplated the maintenance of an armed militia. Id. at 264; see also Andrews v. State, 50 Tenn. 141, 152 (1871) (noting that the purpose of the state, as well as the federal Constitution, in granting its citizens the right to keep and bear arms was to preserve "the efficiency of the people as soldiers, when called into actual service for the security of the State").
102. See, e.g., Kalodimos v. Village of Morton Grove, 470 N.E.2d 266, 269 (Ill.1984) (recognizing that the Illinois Constitution created an individual right to bear arms that covered a wider variety of weapons than those traditionally used by a regulated militia).
103. See, e.g., id. at 269 (quoting the Illinois Constitution, which provides that the right to possess a firearm is subject to the limitation of the state's police power).
104. Refer to notes 92-103 supra and accompanying text.
105. See, e.g., Stephen P. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights, 41 BAYLOR L.REV. 629, 632 (1989) (discussing the few ways an individual in Texas can carry a weapon, despite the state's cowboy image).
106. TEX. PENAL CODE ANN. § 46.02(a) (Vernon 1989) (providing that "[a] person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club").
107. Id. § 46.03(a)(2) (Vernon Supp.1993).
108. Id. § 46.03(a)(3).
109. Id. § 46.03(a)(4).
110. Id. § 46.03(a)(5).
111. Id. § 46.03(a)(6).
112. See Halbrook, supra note 105, at 632-33. Southern and Western states generally permit people to bear arms openly, but require permits for carrying concealed arms off one's property. Id. Most Northern states require permits to bear arms openly and when concealed. Id.
113. Masters v. State, 685 S.W.2d 654, 656 (Tex.Crim.App.) (Clinton, J., concurring) (noting that the Second Amendment only guarantees that the right to bear arms shall not be infringed by Congress), cert. denied, 474 U.S. 853 (1985).
115. See TEX. CONST. art. I, § 23 (providing that "[e]very citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime").
116. See, e.g., Halbrook, supra note 105, at 668 & n. 192 (stating that the 1871 statute prohibiting bearing arms anywhere but one's premises was used to disarm the people and establish a police state).
117. Id. at 666-67 (outlining the changes made by the statute's new language).
118. Id. at 668 (stating that those who thought the new guarantee would restore the right to bear arms in Texas were in for a rude awakening).
119. 42 Tex. 455 (1875) (upholding the constitutionality of a state statute limiting an individual's right to keep and bear deadly weapons).
120. See, e.g., Lewis v. State, 7 Tex.Ct.App. 567, 568 (1880) (addressing the illegal carrying of a pistol, but not the change of the guarantee to bear arms on former laws); Jennings v. State, 5 Tex.Ct.App. 298, 301 (1878) (stating that the act in question, prohibiting the carrying of a weapon, had not been held unconstitutional by a "long line of decisions," thereby failing to consider the effect of the change on the guarantee).
121. Refer to notes 105-20 supra and accompanying text.
122. U.S. CONST. amend. IX.
123. 653 S.W.2d 944 (Tex.App.¾Austin 1983), aff'd, 685 S.W.2d 654 (Tex.Crim.App.), cert. denied, 474 U.S. 853 (1985).
124. Id. at 947 (Powers, J., concurring).
125. Id. In his concurring opinion, Justice Powers stated that
[t]he theory of the majority contravenes the basic constitutional principles that individuals possess immunities and prerogatives by the very fact that they are human beings, and they retain these rights save to the extent they have voluntarily ceded them to a sovereign power, as in the Federal and State constitutions, where they expressly reserved all rights not granted expressly or by implication, including those immunities and prerogatives listed in the Bill of Rights, upon which the government of the sovereign is forbidden to infringe.
126. BENJAMIN L. OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN 186 (1832) (arguing that the right to bear arms is an inherent constitutional right).
128. Masters, 653 S.W.2d at 947-48.
129. Masters v. State, 685 S.W.2d 654, 656 (Tex.Crim.App.), cert. denied, 474 U.S. 853 (1985).
130. See, e.g., Halbrook, supra note 105, at 670 (discussing the applicability of the Second Amendment to the states through the Fourteenth Amendment).
131. Refer to notes 134-35 infra and accompanying text.
132. 153 U.S. 535 (1893).
133. Id. at 538; see also Halbrook, supra note 105, at 670 (stating that the Miller court refused to address the issue of incorporation).
134. See Chicago B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (holding that taking private property by the state without compensation violates due process).
135. See Benton v. Maryland, 395 U.S. 784, 794 (1969) (holding that the Fifth Amendment's protection against double jeopardy is applicable to the states); Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (holding that the right to a trial by jury is guaranteed in criminal cases by the Sixth Amendment and applicable to the states through the Fourteenth Amendment); Washington v. Texas, 388 U.S. 14, 18-19 (1967) (holding that the right to compulsory process for obtaining witnesses as guaranteed by the Sixth Amendment is a fundamental element of due process and is applicable to the states through the Fourteenth Amendment); Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967) (holding that the right to a speedy trial, as guaranteed by the Sixth Amendment, is to be enforced against the states through the Fourteenth Amendment); Miranda v. Arizona, 384 U.S. 436, 471 (1966) (holding that an individual who is held for interrogation must be informed that he has the right to consult with a lawyer and to have that lawyer present during questioning); Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the exception against compulsory self-incrimination provided by the Fifth Amendment applies to the states through the Fourteenth Amendment); Escobedo v. Illinois, 378 U.S. 478, 490-91 (1964) (holding that when the criminal process shifts from investigatory to accusatory, the accused must be permitted to consult with counsel as guaranteed by the Sixth Amendment and made obligatory on the states by the Fourteenth Amendment); Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (stating that " 'certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution' ") (quoting Grosjean v. American Press Co., 297 U.S. 233, 243- 44 (1936)); Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that all evidence obtained in searches and seizures in violation of the Constitution is inadmissible in a state court).
136. See Meers v. McDowell, 62 S.W. 1013, 1014 (Ky.Ct.App.1901) (holding that a parent, who knew or should have known that his child was incompetent and should not be entrusted with a deadly weapon, may be held liable for injury inflicted by his child); Charlton v. Jackson, 167 S.W. 670, 671 (Mo.Ct.App.1914) (holding that a parent breached a duty to control his minor child and was liable for the child's injurious acts when the evidence showed that the minor was reckless and careless); see also Dickens v. Barnham, 194 P. 356, 357 (Colo.1920) (affirming a judgment against a father found negligent for permitting a child to have access to a rifle); Sutton v. Champagne, 75 So. 209, 210 (La.1917) (holding a parent liable for his son's act of giving a rifle to another inexperienced minor resulting in an accidental shooting of the plaintiff's son); Souza v. Irome, 106 N.E. 998, 998 (Mass.1914) (finding sufficient evidence for a jury verdict against the defendant father for the negligent entrustment of a gun and ammunition to his son); Kunda v. Briarcombe Farm Co., 183 N.W. 134, 134-35 (Minn.1921) (holding an employer negligent for giving a shotgun and ammunition to a minor); Olson v. Hemsley, 187 N.W. 147, 149 (N.D.1922) (holding that sufficient evidence existed for a jury to find that keeping a loaded gun within easy access of a minor constituted negligence); Johnson v. Glidden, 76 N.W. 933, 935 (S.D.1898) (holding that a parent has a duty to prevent his child from injuring others); Giguere v. Rosselot, 3 A.2d 538, 540 (Vt.1939) (holding that a parent could be liable for the negligent entrustment of a firearm to a minor child who lacked the capacity to use it responsibly).
137. See Halbrook, supra note 105, at 351 (stating that proponents of gun control are filing law suits against the manufacturers, distributors and owners of handguns in an attempt to ban ownership of handguns by citizens).
138. Id. (arguing that the standards of strict liability and negligence per se could act as a ban on the ownership of handguns).
139. Id. at 353, 355; see also Dick v. Higgason, 322 S.W.2d 92, 94-95 (Ky.1959); Thomas v. Bokelman, 462 P.2d 1020, 1022 (Nev.1970); Lopez v. Chewiwie, 186 P.2d 512, 513 (N.M.1947).
140. See Halbrook, supra note 105, at 353; see also Lopez, 186 P.2d at 513.
141. See Ritter v. Thibodeaux, 41 S.W. 492, 492-93 (Tex.Civ.App.¾Galveston 1897, no writ) (holding that a father is not responsible for the acts of his son, who, without his father's knowledge, went hunting and carelessly shot his companion); Pawlak v. Mayer, 62 N.W.2d 572, 573-74 (Wis.1954) (affirming the dismissal of a complaint against a father whose son had injured another boy with an air rifle, because the defendant's son acted against his father's instructions and without his knowledge).
142. See Gudziewski v. Stemplesky, 160 N.E. 334, 335 (Mass.1928) (holding the defendant parents liable because there was sufficient evidence that they were aware that their son had previously used a gun in a careless manner); Kuchlik v. Feuer, 191 N.E. 555, 556 (N.Y1934) (per curiam) (affirming that a father was liable for the injuries sustained when his 14-year-old son shot the plaintiff, because the defendant father had actual knowledge of his son's possession and use of the gun).
143. See Skelton v. Gambrell, 57 S.E.2d 694, 697 (Ga.Ct.App.1950) (holding that despite knowledge that their 14-year-old son had pointed a pistol at previous customers, the defendant parents could not have anticipated that he would commit the independent and intentional act of firing the pistol at a customer); Klop v. Vanden Bos, 248 N.W. 538, 538 (Mich.1933) (holding that a father was not negligent in allowing his son to have a gun when the son was familiar with the use of guns); Lopez v. Chewiwie, 186 P.2d 512, 513 (N.M.1947) (holding that leaving a loaded gun on the premises accessible to a 13-year-old boy does not impose liability absent knowledge that the child is "indiscreet or reckless"); Taylor v. Seil, 97 N.W. 498, 498 (Wis.1903) (finding that it was reasonable for a father to entrust his 17-year-old boys with firearms and to allow his seven-year-old boy to carry an unloaded firearm).
144. See Olson v. Hemsley, 187 N.W. 147, 149 (N.D.1922) (holding that sufficient evidence existed for the jury to determine if the defendant was negligent in making a loaded gun accessible to a minor whom he knew to be reckless); Hart v. Lewis, 103 P.2d 65, 67 (Okla.1940) (stating that one in possession of a dangerous instrument is under a duty to exercise the utmost degree of care to prevent harm to younger children); Mendola v. Sambol, 71 A.2d 827, 829 (Pa.Super.Ct.1950) (finding the defendant negligent for allowing his minor son access to a loaded gun); Salisbury v. Crudale, 102 A. 731, 733 (R.I.1918) (holding that the question of negligence was proper for the jury when the defendant father had broken the stock of a loaded rifle and thrown it under the bed because that was not sufficient concealment to make it inaccessible to his children).
145. See Dickens v. Barnham, 194 P. 356, 357 (Colo.1920) (upholding a jury verdict that the defendant was negligent in allowing easy access to both the gun and the ammunition); Sojka v. Dlugosz, 200 N.E. 554, 555-56 (Mass.1936) (holding that the evidence established that the father was negligent in allowing easy access to his gun and cartridges); Mazzilli v. Selger, 99 A.2d 417, 420-21 (N.J.1953) (finding sufficient evidence to establish the mother's negligence when the child found an unloaded gun in his mother's closet and the shells in his brother's top bureau drawer).
146. See Clarine v. Addison, 234 N.W. 295, 296 (Minn.1931) (refusing to hold the defendant father liable for plaintiff's injuries because there was no evidence of son's intention to use the gun against another in violation of the statute); Kunda v. Briarcombe Farm Co., 183 N.W. 134, 135 (Minn.1921) (holding that the defendant could not avoid liability because the injury was a result of the violation of a statute prohibiting the minor's possession of a gun); Schatter v. Bergen, 55 P.2d 344, 346 (Wash.1936) (holding that the violation of an ordinance prohibiting a parent from permitting his minor child to carry an air rifle constituted negligence per se).
147. See Halbrook, supra note 105, at 357 (stating that owners must use reasonable care to prevent the misuse of firearms, but are not responsible for unforeseeable misuses); refer to notes 141-46 supra and accompanying text.
148. RESTATEMENT (SECOND) OF TORTS §§ 308, 316 (1965).
149. Id. § 308.
150. Id. § 308 cmt. b (providing that § 308 is most frequently applied "where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Thus, it is negligent to place loaded firearms or poisons within reach of young children or feeble- minded adults").
151. Id. § 316.
152. Id. § 316 illus. 1. This illustration provides that:
A is informed that his six-year-old child is shooting at a target in the street with a .22 rifle, in a manner which endangers the safety of using the street. A fails to take the rifle away from the child, or to take any other action. The child unintentionally shoots B, a pedestrian, in the leg. A is subject to liability to B.
153. Id. §§ 308, 316. The following cases cite § 308 of the Restatement (Second) of Torts: Semeniuk v. Chentis, 117 N.E.2d 883, 884-85 (Ill.App.Ct.1954) (supporting an action against a merchant for the negligent sale of BB pellets to a minor); Wroth v. McKinney, 373 P.2d 216, 217-19 (Kan.1962) (allowing an action to proceed against the defendant for a minor's self-inflicted injury by a gun found in the defendant's house); May v. Goulding, 111 N.W.2d 862, 863 (Mich.1961) (supporting an action against the parents of a mentally ill minor who had inflicted a gunshot injury); Stoelting v. Hauck, 159 A.2d 385, 389 (N.J.1960) (imposing liability against the defendant for the plaintiff's injuries from being accidentally shot by the defendant's minor son); Kuhns v. Brugger, 135 A.2d 395, 403 n. 12, 405 (Pa.1957) (finding the defendant liable when he knew or should have known that a minor would misuse the gun); Mendola v. Sambol, 71 A.2d 827, 828-29 (Pa.Super.Ct.1950) (finding the defendant liable because the injury was the natural and probable consequence of the defendant's negligent act in making a loaded gun accessible to a child). Cases relying on § 316 include: Bateman v. Crim, 34 A.2d 257, 258 n. 1 (D.C.1943) (imposing parental liability for the acts of minor children when the "parent has permitted a minor to use a dangerous instrumentality, or where they have knowingly permitted, encouraged, or failed to discourage, conduct inherently dangerous to others or prohibited by laws intended to promote the public safety"); Gerlat v. Christianson, 108 N.W.2d 194, 196 (Wis.1961) (supporting a cause of action by a 12-year-old plaintiff for the injuries resulting from an air rifle pellet fired by the defendant minor).
154. See RESTATEMENT (SECOND) OF TORTS §§ 308, 316 (1965) (discussing civil liability for the negligent storage of firearms).
155. Refer to notes 156-64 infra and accompanying text.
156. CAL. PENAL CODE § 12035 (West 1992). The provisions of the California statute include:
(b)(1) Except as provided in subdivision (c), a person commits the crime of "criminal storage of a firearm of the first degree" if he or she keeps any loaded firearm within any premise which is under his or her custody or control and he or she knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child's parent or legal guardian and the child obtains access to the firearm and thereby causes death or great bodily injury to himself, herself, or any other person.
(2) Except as provided in subdivision (c), a person commits the crime of "criminal storage of a firearm of the second degree" if he or she keeps any loaded firearm within any premise which is under his or her custody or control and he or she knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child's parent or legal guardian and the child obtains access to the firearm and thereby causes injury, other than great bodily injury, to himself, herself, or any other person, or exhibits the firearm either in a public place or in violation of Section 417.
157. CONN. GEN. STAT. ANN. § 29-37i (West Supp.1993). The statute provides:
No person shall store or keep any loaded firearm on any premises under his control if he knows or reasonably should know that a minor is likely to gain access to the firearm without the permission of the parent or guardian of the minor unless such person (1) keeps the firearm in a securely locked box or other container or in a location which a reasonable person would believe to be secure or (2) carries the firearm on his person or within such close proximity thereto that he can readily retrieve and use it as if he carried it on his person. For the purposes of this section, "minor" means any person under the age of sixteen years.
158. FLA. STAT. ANN. § 790.174 (West 1992). The statute imposes liability as follows:
(1) A person who stores or leaves, on a premise under his control, a loaded firearm, as defined in s. 790.001, and who knows or reasonably should know that a minor is likely to gain access to the firearm without the lawful permission of the minor's parent or the person having charge of the minor, or without the supervision required by law, shall keep the firearm in a securely locked box or container or in a location which a reasonable person would believe to be secure or shall secure it with a trigger lock, except when he is carrying the firearm on his body or within such close proximity thereto that he can retrieve and use it as easily and quickly as if he carried it on his body.
(2) It is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, if a person violates subsection (1) by failing to store or leave a firearm in the required manner and as a result thereof a minor gains access to the firearm, without the lawful permission of the minor's parent or the person having charge of the minor, and possesses or exhibits it, without the supervision required by law:
(a) In a public place; or
(b) In a rude, careless, angry, or threatening manner in violation of s. 790.10.
This subsection does not apply if the minor obtains the firearm as a result of an unlawful entry by any person.
(3) As used in this act, the term "minor" means any person under the age of 16.
159. HAW. REV. STAT. ANN. § 134-10.5 (Michie Supp.1992). The statute provides:
No person shall store or keep any firearm on any premises under the person's control if the person knows or reasonably should know that a minor is likely to gain access to the firearm without the permission of the parent or guardian of the minor, unless the person:
(1) Keeps the firearm in a securely locked box or other container or in a location that a reasonable person would believe to be secure; or
(2) Carries the firearm on the person or within such close proximity thereto that the person readily can retrieve and use it as if it were carried on the person.
For purposes of this section, "minor" means any person under the age of sixteen years.
160. IOWA CODE ANN. § 724.22(7) (West Supp.1993). The statute states:
It shall be unlawful for any person to store or leave a loaded firearm which is not secured by a trigger lock mechanism, placed in a securely locked box or container, or placed in some other location which a reasonable person would believe to be secure from a minor under the age of fourteen years, if such person knows or has reason to believe that a minor under the age of fourteen years is likely to gain access to the firearm without the lawful permission of the minor's parent, guardian, or person having charge of the minor, the minor lawfully gains access to the firearm without the consent of the minor's parent, guardian, or person having charge of the minor, and the minor exhibits the firearm in a public place in an unlawful manner, or uses the firearm unlawfully to cause injury or death to a person. This subsection does not apply if the minor obtains the firearm as a result of an unlawful entry by any person. A violation of this section is punishable as a serious misdemeanor.
161. MD.CODE ANN., CRIM.LAW § 36K (Supp.1992). The statute provides:
(b) Prohibited acts.¾Except as provided in this section, an individual may not store or leave a loaded firearm in any location where the individual knew or should have known that an unsupervised minor would gain access to the firearm.
(c) Applicability.¾This section does not apply if:
(1) A minor's access to a firearm is supervised by a person 18 years old or older;
(2) A minor's access to a firearm was obtained as a result of an unlawful entry;
(3) A firearm is in the possession or control of a law enforcement officer while the officer is engaged in official duties; or
(4) A minor has a certificate of firearm and hunter safety as set forth in § 10-301.1 of the Natural Resources Article.
162. N.J.STAT. ANN. § 2C:58-15 (West Supp.1993). The statute provides:
a. A person who knows or reasonably should know that a minor is likely to gain access to a loaded firearm at a premises under the person's control commits a disorderly persons offense if a minor gains access to the firearm, unless the person:
(1) Stores the firearm in a securely locked box or container;
(2) Stores the firearm in a location which a reasonable person would believe to be secure; or
(3) Secures the firearm with a trigger lock.
b. This section shall not apply:
(1) To activities authorized by section 14 of P.L.1979, c. 179 (C. 2C:58- 6.1), concerning the lawful use of a firearm by a minor; or
(2) Under circumstances where a minor obtained a firearm as a result of an unlawful entry by any person.
c. As used in this act, "minor" means a person under the age of 16.
163. VA. CODE ANN. § 18.2-56.2 (Michie Supp.1993). The statute provides:
It shall be unlawful for any person to recklessly leave a loaded, unsecured firearm in such a manner as to endanger the life or limb of any child under the age of fourteen. Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor.
164. WIS. STAT. ANN. § 948.55 (West Supp.1992). The relevant provisions imposing liability provide:
(1) In this section, "child" means a person who has not attained the age of 14 years.
(2) Whoever recklessly stores or leaves a loaded firearm within the reach or easy access of a child is guilty of a Class A misdemeanor if all of the following occur:
(a) A child obtains the firearm without the lawful permission of his or her parent or guardian or the person having charge of the child.
(b) The child under par. (a) discharges the firearm and the discharge causes bodily harm or death to himself, herself or another.
(3) Whoever recklessly stores or leaves a loaded firearm within the reach or easy access of a child is guilty of a Class C misdemeanor if all the following occur:
(a) A child obtains the firearm without the lawful permission of his or her parent or guardian or the person having charge of the child.
(b) The child under par. (a) possesses or exhibits the firearm in a public place or in violation of s. 941.20.
165. Refer to notes 156-62, 164 supra and accompanying text.
166. CAL. PENAL CODE § 12035(c)(4); FLA. STAT. ANN. § 790.174(1); IOWA CODE ANN. § 724.22(7); N.J.STAT. ANN. § 2C:58-15(a)(3); WIS. STAT. ANN. § 948.55(4)(b).
167. CAL. PENAL CODE § 12035(c)(2); CONN. GEN. STAT. ANN. § 29-37i; FLA. STAT. ANN. § 790.174(1); HAW. REV.GEN. ANN. § 134-10.5(1); IOWA CODE ANN. § 724.22(7); WIS. STAT. ANN. § 948.55(4)(a).
168. CAL. PENAL CODE § 12035(c)(1); FLA. STAT. ANN. § 790.174(2); IOWA CODE ANN. § 724.22(7); MD. CODE ANN., CRIM. LAW § 36K(c)(2); WIS. STAT.ANN. § 948.55(4)(e).
169. CAL. PENAL CODE § 12035(c)(7); CONN. GEN. STAT. ANN. § 29-37i; WIS. STAT. ANN. § 948.55(4)(g).
170. CAL. PENAL CODE § 12035(b)(1), (2); CONN. GEN. STAT. ANN. § 29- 37i; FLA. STAT. ANN. § 790.174(1); HAW. REV. STAT. ANN. § 134-10.5; IOWA CODE ANN. § 724.22(7); MD. CODE ANN., CRIM. LAW § 36K; N.J.STAT. ANN. § 2C:58- 15(a); WIS. STAT. ANN. § 948.55(2)-(3).
171. CAL. PENAL CODE § 12035(c)(3); CONN. GEN. STAT. ANN. § 29-37i; FLA. STAT. ANN. § 790.174(1); HAW. REV. STAT. ANN. § 134-10.5(2); WIS. STAT.ANN. § 948.55(4)(c).
172. MD.CODE ANN., CRIM.LAW § 36K(c)(1).
173. Id. § 36K(c)(4). There is an additional exception for situations in which the "firearm is in the possession or control of a law enforcement officer while the officer is engaged in official duties." Id. § 36K(c)(3).
174. Compare note 163 supra with notes 156-62, 164 supra (illustrating the difference between the Virginia statute and the comparable statutes passed by the other eight states).
175. Id. The Virginia statute is much broader than the comparable statutes passed by the other states. Compare note 163 supra with notes 156-62, 164 supra. The Virginia law leaves itself open to possible attack on the grounds of being void for vagueness. A law which does not state an ascertainable standard of guilt does not inform those accused of violating the law of the nature of their guilt and is therefore void. United States v. L. Cohen Grocery Co., 255 U.S. 81, 87-88 (1920). If a law is written so imperfectly as to render it impossible to execute, and the legislative intent impossible to determine, it is void. See Opinion by the Justices, 30 So.2d 14, 17 (Ala.1947); Hernandez v. Frohmiller, 204 P.2d 854, 860 (Ariz.1949). A law will not be held void simply because it could have been written more explicitly. People ex rel. Christensen v. Board of Educ., 65 N.E.2d 825, 828 (Ill.1946); Witte v. McLaughlin, 189 N.E. 350, 351 (Ill.1934); State v. Hoebel, 41 N.W.2d 865, 867 (Wis.1950).
176. Dunn, supra note 3, at A1.
177. Marilyn Gardner, Floridians Debate Gun Control Law, CHRISTIAN SCI. MONITOR, Oct. 12, 1989, at 8 (noting that during a two-week period, five children were accidentally shot, and, of those, two died); Dunn, supra note 3, at A1 (reporting the accidental shootings of six children).
178. Florida Grandfather Charged Under a New Child-Gun Law, N.Y. TIMES, Oct. 11, 1989, at A28.
179. Dunn, supra note 3, at A1.
182. Prosecution Under California Gun Control Law, National Public Radio broadcast, Feb. 2, 1992, available in LEXIS, Nexis Library, Current File) [hereinafter Gun Control].
183. Dunn, supra note 3, at A1.
184. Gun Control, supra note 182.
186. Dunn, supra note 3, at A1; Maria Goodavage, Man Faces Prison in Grandson's Death, USA TODAY, Feb. 3, 1992, at A2. On New Year's Eve, Conchas tried unsuccessfully to fire his gun into the ground to celebrate. Id. He then put the gun in his sweater pocket and went to bed, throwing his sweater on the bedroom floor. Dunn, supra note 3, at A1.
187. Dunn, supra note 3, at A1; Goodavage, supra note 186, at A2.
188. See Dan Turner, Not-Guilty Plea in Accidental Shooting Grandfather Charged in Boy's Death under New Negligence Law, S.F. CHRON., Jan. 11, 1992, at A16.
189. Katherine Bishop, After Gun Law, Fatal Shooting Sets Off Debate, N.Y. TIMES, Jan. 22, 1992, at A10.
190. Man Sentenced Under Gun Law In Death of Boy, L.A. TIMES, Dec. 17, 1992, at A36.
192. See Dunn, supra note 3, at A1 (reporting that the Los Angeles county prosecutors had filed charges against a twenty-two-year-old man whose three-year-old brother found his gun and shot himself).
196. Refer to notes 291-307 infra and accompanying text.
197. See, e.g., Ford, supra note 4, at 27 (stating that existing state law is sufficient to protect children from negligently stored firearms).
198. Id. (stating that it would be absurd to write specific legislation for every wrong that exists).
199. See Bennett Roth, Limits on Lifestyle; City Moves to Curb Undesirable Behavior, HOUS. CHRON., May 3, 1992, at A1 (stating that hastily approved laws will only serve as "Band-Aids" and will not solve the deeper social problems).
200. See Gomez, supra note 6, at B1 (noting that no parent has yet been charged under the child endangerment laws for the accidental shooting of a child). But see People v. Odom, 277 Cal.Rptr. 265, 268 (Cal.Ct.App.1991) (affirming a conviction for child endangerment for several potential hazards, including leaving 12 weapons accessible to minors, of which at least three were loaded).
201. See, e.g., Williams, supra note 7, at A28 (reporting that the mayor of Houston questioned whether the Houston ordinance imposing liability on parents for the negligent storage of firearms would help the situation); refer to notes 251-59 supra and accompanying text.
202. Williams, supra note 7, at A28 (noting the concern expressed by Houston's mayor regarding the enforceability of the Houston ordinance).
203. Michael Moline, Law Gives Gun Owners an Out, But Many Ignore It, UPI, June 26, 1989, available in LEXIS, Nexis Library, UPI File. Commenting on recent negligent-storage legislation in his state, one Florida state senator said that he will not buy trigger locks for his weapons, because it would render them useless for self-defense. Id. Approximately one-quarter of private firearms are owned for the purpose of self-defense. WRIGHT, supra note 1, at 104 (examining the principal uses of firearms by their owners).
204. Moline, supra note 203 (stating that Florida gun shops experienced slow sales of trigger locks the first week after the law passed).
205. Refer to notes 206-31 infra and accompanying text.
206. See Castro v. Hernandez-Davila, 694 S.W.2d 575, 577 (Tex.App.¾Corpus Christi 1985, no writ) (stating that a negligent act which violates a statute constitutes negligence as a matter of law).
207. Id. at 577. Negligence per se is defined as:
Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a specific statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.
BLACK'S LAW DICTIONARY 1035 (6th ed. 1990).
208. Wilson v. Goodyear Tire & Rubber Co., 753 S.W.2d 442, 445 (Tex.App.¾Texarkana 1988, writ denied) (stating that the party alleging negligence per se assumes the burden of establishing a statutory violation); Ellsworth v. Bishop Jewelry & Loan Co., 742 S.W.2d 533, 535 (Tex.App.¾Dallas 1987, writ denied) (holding that the plaintiff carried the initial burden of proving the defendant's violation of a federal law by the sale of a firearm to a person suffering from a mental defect); Castro, 694 S.W.2d at 578 (stating that the party alleging a statutory violation assumes the burden of proving the violation). The majority of states have adopted the doctrine of negligence per se. Denise J. Lord, Comment, Beyond Social Host Liability: Accomplice Liability, 19 CUMB.L.REV. 553, 567 (1989) (stating that the effect of imposing negligence per se in the majority of states is to provide a rebuttable presumption of negligence upon proof of a statutory violation).
209. See, e.g., Wilson, 753 S.W.2d at 445 (holding that to establish negligence per se there must be an unexcused violation of a legislative enactment); Ellsworth, 742 S.W.2d at 535 (stating that once a violation of a statute has been shown, the burden shifts to the offender to provide some excuse for its violation); Castro, 694 S.W.2d at 578 (holding that when the burden of proving a statutory violation has been met the burden shifts to the violator to prove a legally acceptable excuse).
210. See, e.g., Castro, 694 S.W.2d at 577 (stating that a statutory violation, which is legally unexcused, constitutes negligence as a matter of law).
211. See id. at 577 (citing Moughon v. Wolf, 576 S.W.2d 603 (Tex.1978)). For tort claims, courts have adopted the standard of conduct required in criminal statutes relating to the negligent storage of firearms. Id. This standard defines the conduct of a reasonably prudent person. Id.
212. Halbrook, supra note 105, at 351 (noting that tort liability has already increased). Tort liability could become so burdensome that it could act as a ban on the manufacture, sale and even the ownership of firearms. Id.
213. Halbrook, supra note 105, at 351 (stating that proponents of firearm legislation are filing suits against manufacturers, distributors, and owners).
214. Id. (projecting that standards of strict liability or negligence per se will make it financially impossible to own, sell, or make handguns).
215. See MD.CODE ANN., CRIM.LAW § 36K (Michie Supp.1992) (providing for no reference to a violation of this section during a civil trial).
216. Refer to notes 221-31 infra and accompanying text.
217. See, e.g., Eugene H. Methvin, Highest Court Cost: Concern for "Prisoners' Rights" Has Turned Prisons into Jungles; Includes Assessment of Prison Overcrowding in Texas, 44 NAT'L REV., March 16, 1992, No. 5, at 36 (commenting on the effect of the recent concern for prisoner's rights on state prison systems).
218. 393 U.S. 483 (1969).
219. Id.; Methvin, supra note 217, at 36 (stating that the Warren Court's ruling in Johnson v. Avery resulted in federal judges ordering 41 states to decrease prison overcrowding).
220. Methvin, supra note 217, at 36.
221. See, e.g., Mark A. Cohen, Early Prison Release, Consider Cost of Pain, Fear, HOUS. CHRON., Apr. 27, 1992, at A11 (discussing prison overcrowding and the effect early release programs have on Texas).
222. Mary Hull, Punishment Standards Commission Faces Sobering Sentencing Report; Prosecutors, Defense Bar Propose New Guidelines, TEX.LAW., Aug. 24, 1992, at 4.
224. Id. (citing a 1991 Texas report).
225. No Easy Answers for Prison Overcrowding, CITY & ST., July 18, 1993, Perspective, at 6.
227. Mary B. Lane, Reno Talks Tough to Law Officers; 'Put Away' Violent Criminals, She Urges, PLAIN DEALER, July 23, 1993, at 3B.
228. See Andrea D. Greene & Eric Hanson, Local Judges Send Fewer to Prison; Programs Full, HOUS. CHRON., July 30, 1992, at A1 (stating that in addition to boot camp, county-run alternative programs include intermediate sanction facilities, electronic monitoring, and drug rehabilitation).
229. Wrong Target; No Blaming Harris County Judges in Prison Crowding, HOUS. CHRON., Aug. 3, 1992, at A12 [hereinafter Wrong Target].
230. Id.; Jane Harper, 28 Percent Fewer Prison Sentences Handed Down, HOUS. POST, Aug. 1, 1992, at A31. Harris County programs include boot camp, secure treatment centers for substance abusers, intermediate facilities for first time offenders not physically qualified for boot camp, restitution facilities, electronic monitoring of persons under house arrest, super- intensive probation, and special probation programs for the mentally ill or retarded. Id.
231. See Wrong Target, supra note 229, at A12 (stating that the difficulty facing judges is that the alternatives are not always available which suggests that additional state funding should be made available). Currently, there is a waiting list for six of the programs. Id.
232. See, e.g., TEX. PENAL CODE §§ 19.02, 19.03, 20.02, 20.04, 22.01, 22.011, 28.02, 29.03 (Vernon 1989 & Supp.1993) (defining and prohibiting murder, capital murder, false imprisonment, kidnapping, aggravated kidnapping, assault, sexual assault, arson, and robbery).
233. Dunn, supra note 3, at A1 (arguing that a person who has negligently caused his child's death has been punished enough); Headliners; Lost Life, N.Y. TIMES, Jan. 26, 1992, § 4, at 9 (stating that the horror of losing a child is compounded by a possible prison sentence or fine).
234. Gun Control, supra note 182 (reporting that Conchas was the sole supporter of his family).
235. Refer to notes 236-54 infra and accompanying text.
236. PAUL W. TAPPAN, CRIME, JUSTICE AND CORRECTION 10 (1960) (emphasis omitted).
237. See, e.g., John P. Conrad, Where There's Hope There's Life, in JUSTICE AS FAIRNESS: PERSPECTIVES ON THE JUSTICE MODEL 3-5 (David Fogel & Joe Hudson eds., 1981) (discussing the theories and desired results of punishment).
238. See DENIS SZABO, CRIMINOLOGY AND CRIME POLICY 160 (Dorothy R. Crelinsten trans., 1978) (stating that the goals of criminal sanction are either "intimidation or dissuasion, elimination or neutralization, reform or punishment").
239. See, e.g., BLACK'S LAW DICTIONARY 1317 (6th ed. 1990) (stating that retribution, in criminal law, is based on the principle that every offense deserves payment by way of punishment).
240. HARRY E. BARNES & NEGLEY K. TEETERS, NEW HORIZONS IN CRIMINOLOGY 10 (1945) (discussing the evolution of the theories underlying punishment).
243. See, e.g., GWYNN NETTLER, RESPONDING TO CRIME 101 (1982) (commenting on the effects of general and individual deterrence).
245. Conrad, supra note 237, at 5 (citing PLATO, PROTAGORAS 324b (C.C.W. Taylor trans., 1976)).
246. See, e.g., BLACK'S LAW DICTIONARY 1287 (6th ed. 1990) (citing Jones v. Grinnell Corp., 362 A.2d 139, 143 (R.I.1976)).
247. See, e.g., NETTLER, supra note 243, at 106 (discussing that rehabilitation involves restoring the individual to his or her former health, which assumes that the individual was healthy to being with).
249. See, e.g., id. at 123 (commenting on the different approaches to rehabilitation).
250. See BARNES & TEETERS, supra note 240, at 11-13 (discussing that the U.S. movement towards altering sentences because of behavior was based on a nineteenth century prison reform movement in Ireland).
251. JOHN L. GILLIN, CRIMINOLOGY AND PENOLOGY 603 (3d ed. Greenwood Press 1977) (1945), (stating that any treatment program should begin with an analysis of the desired end results, and that the desired end result of the prison system is to prevent crime).
252. See SZABO, supra note 238, at 162 (arguing that additional social measures need to be implemented for effective prevention of crime).
253. See Arnold Abrams, Taking Comfort in GRIEF; Mourning Son, Woman Fights for a Law to Keep Guns Away from Kids, NEWSDAY (Hempstead East ed.), May 19, 1991, News, at 1 (stating that Connecticut and Florida impose a $5000 fine, five years imprisonment, or both, for gun owners who fail to store their weapons in a locked container or secure location).
254. See, e.g., Dunn, supra note 3, at A1 (discussing the opposing views toward the enactment of criminal statutes targeting the negligent storage of firearms).
255. Oscar Wilde vividly described prison in a poem:
Each wretched cell in which we dwell
Is a foul and dank latrine,
And the fetid breath of living Death
Chokes up each grated screen,
And all, but Lust, is turned to dust
In Humanity's Machine.
JAMES A. INCIARDI, CRIMINAL JUSTICE 566 (2d ed. 1987).
256. Refer to notes 257-59 infra and accompanying text.
257. RICHARD R. KORN & LLOYD W. MCCORKLE, CRIMINOLOGY AND PENOLOGY 465 (1959). Physical and psychological isolation can have dramatic effects on prisoners. Physical isolation stems from both physical and nonphysical obstacles. Id. Physical obstacles include the walls and guards that separate the prisoner from the outside world. Id. Nonphysical obstacles can consist of society's view of the prisoner, both in prison and when the prison sentence has terminated. Id. Examples of psychological isolation are: (1) the control and limitation of visits; (2) the control, limitation and censorship of correspondence; (3) the restriction of the interaction between prison personnel and the inmates; and (4) the routinization of daily life. Id. at 466. Cessation of the right to privacy, stemming from the censorship of mail and monitoring of visits, also adds to a sense of isolation. See generally Alvin J. Bronstein, Offender Rights Litigation, in JUSTICE AS FAIRNESS: PERSPECTIVES ON THE JUSTICE MODEL, supra note 237, at 270, 278-81 (discussing prisoner's rights to free and uncensored communication).
258. See INCIARDI, supra note 255, at 566-68 (discussing the prevalence of homosexual activity in prisons). The introduction of AIDS has created a new problem in this arena. Id.
259. BROWNSTEIN, supra note 257, at 285 (commenting on the lack of health care in prisons). Lack of adequate medical care is the rule in all penal institutions. Id. In principal, every inmate has a right to "adequate" and "proper" medical care. See, e.g., INCIARDI, supra note 255, at 599. This right is protected by common law and various state statutes in addition to the Civil Rights Act of 1964, the Due Process Clause of the Fifth and Fourteenth Amendments, and the Eighth Amendment. Id.f In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court announced that "deliberate indiference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment," however, the Court has largely left the specifics to the lower courts. Id. at 104 (citations omitted); see also INCIARDI, supra note 255, at 599 (stating that the Supreme Court has left details to the lower courts and have failed to define what constitutes "adequate" care). The definition of adequate medical care is largely fact dependent. Id. In fact, in Priest v. Cupp, 545 P.2d 917 (Or.Ct.App.1976), the court held that the Eighth Amendment's ban against cruel and unusual punishment does not guarantee that an inmate will be free from all medical problems, real or imagined. Id. at 918.
260. See Melanie Markley, "We are Living in the Most Violent Society in the World."; Wheels Turn Over Juvenile Crime Wave; City, Schools Seeking Way to Curb Violence, HOUS. CHRON., Oct. 2, 1991, at A13 (discussing proposals for decreasing juvenile crime such as instituting curfews, increasing security at school campuses, and instituting a gun awareness week). The City of Houston worked with the Harris County Sheriff's Department to implement a Gun Awareness Week. Id. A number of other cities and school districts have also instituted some sort of gun awareness program. See, e.g., Conrad de Fiebre, Gun Plan is Declared a Success Although Only 68 are Turned In, STAR TRIB., July 31, 1992, at 1B (noting that St. Paul is beginning a new gun awareness program in its schools, similar to a successful program in Florida); Edna Negron, Streets of Protest; Kids Rally against Violence, NEWSDAY, Nov. 6, 1992, News, at 4 (reporting that 1000 elementary school children and teachers in Brownsville, Texas marched in support of gun control laws); David Smollar, Teaching Kids That Guns are not Play; Safety: An Innovative Program Aims to Head Off Disaster by Teaching Children That Firearms Have no Place in Play or Anger, L.A. TIMES, Jan. 31, 1992, at B1 (commenting that schools in Miami, Florida have an annual Gun Awareness Week each November).
261. Markley, supra note 260.
262. See Smollar, supra note 260, at B1 (discussing a new gun awareness program being implemented in San Diego, California schools). The National Rifle Association criticizes the Washington, D.C. program on the basis that the program makes a judgment that guns are "bad." Id. The NRA contends that its program makes no such judgment on the ownership of firearms. Id.
268. Id.; see also Debbie M. Price, It's Not an 'Accident' When a Child Finds a Gun, ATLANTA J. & CONST., Aug. 4, 1992, at A6 (criticizing the NRA's opposition to gun safety laws); "Time" Forum: Guns (ABC News Special, Jan. 24, 1990).
269. SMOLLAR, supra note 260, at B1 (seeking to teach children under 12 to stay away from firearms).
270. See Price, supra note 268, at A6 (commenting that the NRA has done little to contribute to firearm education).
271. "Time" Forum: Guns, supra note 268 (discussing the different NRA proposals to educate children about guns).
272. Frank Jones, Why Didn't 'They' Do Something? From Playgrounds to Wearing Seat Belts, Safety Is Up to Parents, TORONTO STAR, May 9, 1992, at J2 (making the observation that children often attempt the violent stunts they see on television).
273. Id. For a discussion of the negative impact of television violence on children, see generally Kenneth D. Gadow & Joyce Sprafkin, Field Experiments of Television Violence With Children: Evidence For an Experimental Hazard, 83 PEDIATRICS 399-405 (1989); Nancy Shulins, Children Turned Killers: How Do Lives Go So Wrong So Soon?, L.A. TIMES, June 29, 1986, 1, at 2.
274. "Time" Forum: Guns, supra note 268 (recognizing that television violence is an underlying problem).
276. Markley, supra note 260, at A13 (recognizing that society cannot depend on schools alone to solve this problem; parents must also become involved).
277. Refer to notes 260-71 supra and accompanying text.
278. Gomez, supra note 6, at B1 (reporting that "[f]ew if any police departments or youth groups offer classes to teach parents and children about firearm safety").
279. Man Sentenced Under Gun Law In Death Of Boy, supra note 190, at A36. Nicholas Conchas, the first person charged under the California statute, was ordered to begin community service in the area of gun safety. Id. Municipal Judge Edward Nelson stated that such a sentence would be more beneficial to the community. Id. Additionally, the prosecutor for the county commented that "[i]f only one life is saved by his appearances, it's a far, far better result than if you sent him off to jail and forgot about him." Id. However, the current lack of adequate funding makes such alternative sentencing difficult. Refer to notes 227-31 supra and accompanying text.
280. See, e.g., HOUSTON, TEX., CODE § 28-47(h) (1992) (allowing the judge to consider a deferred disposition of the charges if the defendant obtains firearm safety training or participates in projects that try to educate juveniles about the dangers of firearms).
281. See, e.g., Williams, supra note 7, at A28.
282. Id. (stating that "[f]rom 1990 to 1991, there was a 75% increase in the number of children under 13 treated for gunshot wounds at Ben Taub Hospital" and that seven children under 13 died of gunshot wounds during the first two months of 1992).
283. Lee, supra note 8, at E1.
284. See id. (stating that the 55 shooting deaths among Houston children in 1990 cost over $20 million in trauma care).
285. HOUSTON, TEX., CODE § 28-47 (1992).
286. Lee, supra note 8, at E1.
287. See HOUSTON, TEX., CODE § 28-47(a) (1992) (stating that the purpose of the ordinance is to educate and train the public to reduce discharge of guns by minors). Proponents of the legislation view the city as attempting to increase the value of the right to bear arms by ensuring that the right is accepted with the responsibility of safe handling. See, e.g., Lee, supra note 8, at E1.
288. HOUSTON, TEX., CODE § 28-47(g) (1992).
289. See id. § 28-47(h) (allowing the judge to consider a deferred disposition of the charges if the defendant obtains firearm safety training or participates in projects that educate juveniles about the dangers of firearms).
290. Id. § 28-47(e).
291. See TEX. PENAL CODE ANN. § 19.07 (Vernon 1989) (criminally negligent homicide); id. § 22.04 (Vernon Supp.1993) (injury to a child or an elderly individual); id. § 22.041 (Vernon Supp.1992) (abandoning or endangering child by an intentional, knowing, reckless, or criminally negligent act).
293. Refer to notes 295-307 infra and accompanying text.
294. Refer to note 291 supra. Although few people have been prosecuted under existing statutes, it is not a foreclosed possibility. Id. In People v. Odom, 277 Cal.Rptr. 265 (1991), a California court upheld a conviction under California Penal Code § 273a entitled Willful Cruelty or Unjustifiable Punishment of Child for endangering the life or health of another. Id. at 269. The relevant provision of this section provides:
Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for 2, 4, or 6 years.
CAL. PENAL CODE ANN. § 273a (West 1988). The conviction was based, in part, on evidence that the defendant did not prevent the children from gaining access to 12 weapons, of which, at least three were loaded. Odom, 277 Cal.Rptr. at 268.
295. See TEX. PENAL CODE ANN. §§ 22.04, 22.041 (Vernon 1989 & Supp.1993).
296. Id. § 22.041(b)-(c) (Vernon 1989).
297. Id. § 22.04(a) (Vernon Supp.1993).
298. Id. §§ 22.04(a), 22.041(c) (Vernon 1989 & Supp.1993).
299. Id. § 6.03(d) (Vernon 1989).
300. Compare TEX. PENAL CODE ANN. §§ 22.04(a), 22.041(c) (Vernon 1989 & Supp.1993) with notes 156-67 supra (requiring some form of negligent act, except Virginia, which requires reckless conduct).
301. Phillips v. State, 588 S.W.2d 378, 381 (Tex.Crim.App.1979), appeal dismissed, 446 U.S. 961 (1980) (holding that the definition of criminal negligence found in § 22.04 adequately describes the prohibited conduct giving sufficient notice of the forbidden conduct and thereby defeating a void for vagueness challenge).
302. See TEX. PENAL CODE ANN. § 19.07(a) (Vernon 1989).
305. Compare id. § 19.07(a) with id. §§ 22.04(a), 22.041(c) (requiring criminal negligence).
306. Id. § 6.03(d) (defining criminal negligence as required by §§ 22.04 and 22.041 of the Texas Penal Code).
307. See Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975) (holding that the requisite mental states in §§ 19.05(a)(1) and 19.07 of the Texas Penal Code are not unconstitutionally vague).
308. Refer to notes 26-135 supra and accompanying text.
309. Refer to notes 291-307 supra and accompanying text.
311. Refer to notes 221-31 supra and accompanying text.
312. Refer to notes 260-80 supra and accompanying text.