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Congress Bans Abusive Anti-Gun Lawsuits:

At approximately noon, eastern time, the House of Representatives voted to pass S. 397, 283-144. The bill, known as the "Protection of Lawful Commerce in Arms Act," has been endorsed by the White House, and now goes to the President for his signature.

The bill is the culmination a decade of tort reform work, aimed at addressing the problem of abusive lawsuits against gun manufacturers. The bill is an excellent exercise of the congressional power over interstate commerce, for precisely the purpose for which Congress was originally granted that power: the billis necessary and proper to stop local governments from interfering with interstate commerce, including by attempting to use a verdict in a single state court to impose national firearms controls which have been rejected by Congress and by all state governments.

S. 397 is also a proper exercise of Congressional power under section 5 of the 14th Amendment, to prevent local governments, including local courts, from infringing the Second Amendment rights (and the parallel state constitutional rights in 44 states) which are guaranteed to all law-abiding Americans.

In addition, the bill is also a necessary and proper exercise of the Congressional war power, because the civilian firearms industry is now, and always has been, essential to the production of firearms for the military. Without a robust civilian firearms industry, manufacturers who had to produce only for a military or police market would have to charge much higher prices, and would innovate far less. Almost every gun ever used by the U.S. military was originally developed for the civilian market. Accordingly, the Department of Defense stated that is "strongly supports" S. 397 because the bill "would help safeguard our national security by limiting unnecessary lawsuits against an industry that plays a critical role in meeting the procurement needs of our men and women in uniform."

Thirty-four states had already enacted their own laws to prohibit such suits, but Congressional action was necessary to ensure that a single court in one of the hold-out states did not attempt to destroy the U.S. firearms industry, or to impose the will of a single judge as a national system of firearms restrictions.

The Brady Center, the instigator of the abusive suits, has already expressed its intention to fight the new federal law in court. Significantly, no court anywhere in the United States has ever ruled in favor of similar challenges to the state statutes restricting abusive lawsuits against Second Amendment rights.

The Senate added two unrelated items to S. 397, both of which have caused concern among some Second Amendment activists:

First, the bill increases the already severe mandatory minimum sentences for use of armor-piercing ammunition in a violent or drug trafficking crime. Mandatory minimums are generally a bad idea, but since actual armor-piercing ammunition, as defined by federal law, is very rare, the practical effect of the new sentences will be very small.

Second, the bill requires all licensed firearms dealers to include a locking mechanism with each handgun they sale. Almost every American manufacturer already includes a lock (either an internal lock or, more commonly, a cable lock or trigger lock), with every new gun.

Accordingly, the main effect of S. 397's lock provision will be to force sellers of used handguns to raise their price by several dollars to provide customers an item that the customer may not need. (For example, the customer may already own a gun safe, or may plan to keep the handgun always ready for self-defense, so that it should not be locked up.)

The bill also provides civil immunity for persons who use locking devices. There have been a few state court cases in which guns were effectively treated as ultra-hazardous products, and gun owners whose guns were stolen and used in a crime were found civilly liable, even though their guns had been stored in a safe.

Both of the extra provisions have slippery slope risks: Senator Kennedy and a significant number of Senators favor expanding the definition of "armor-piercing" ammunition so as to include the vast majority of conventional rifle ammunition. And several states have enacted dangerous laws which require handguns to be locked up, and thus inaccessible for emergency self-defense.

However, the future dangers of slippery slopes are far outweighed by the immediate threat posed by abusive lawsuits. On the whole, S. 397 is an immense victory for constitutional rights.

For background on the abusive lawsuit issue, you may wish to read some of the ten articles I've written on the subject, including the 1995 Seton Hall Legislative Journal article which argued that courts should protect the Second Amendment from abusive lawsuits, just as they protected the First Amendment from abusive lawsuits in New York Times v. Sullivan. But even better than judicially-created protection is legislatively-created protection. Today's bi-partisan vote is a tremendous victory for the constitutional rights of citizens, and is the result of Congress exercising its powers for precisely the pro-freedom reasons for which those powers were granted to Congress by the American people.

Bob Bobstein:
One can support some individual right to bear arms and recognize the importance of having a small weapons manufacturing industry, but still have some doubts about abrogating the elementary legal principle that a man is responsible for the natural outcome of his actions. If a manufacturer is on actual or constructive notice that a given buyer is a source of illegal weapon distribution, but continues to sell to that buyer... why should he be shielded from the operation of the law merely because he sells guns? I'm no torts expert, but it seems like there some negilgent entrustment or some such bad thing going on in such circumstances. Also, I can't tell from the post exactly what the law does-- if it's merely anti-"abuse," as the post claims, then I'm all for it-- I hate abuse!
10.20.2005 3:15pm
steveh2 (mail):
The post indicates that the bill stops "abusive" lawsuits against gun manufacturers. What is the difference between the abusive lawsuits and the non-abusive ones?

Or is the term "abusive" simply added as a matter of hackery?

If the post is assuming that every lawsuit against a gun manufacturer is ipso facto abusive, I'd like to see an explanation why. Why is it necessarily "abusive" for a gun manufacturer to be liable for the foreseeable consequences of its actions, when it willingly sells weapons knowing that the sale of weapons will in fact cause hundreds or thousands of injuries or deaths each year?

Aren't conservatives supposed to be big on personal responsibility?
10.20.2005 3:27pm
Daniel Chapman (mail):
Person A shoots person B. Person B's family sells Gun Company C for producing a dangerous product. That's not personal responsiblity since the responsibility obviously lies with B.

It's cliche, but if I ran you down in my car, you wouldn't sue GM.
10.20.2005 3:31pm
Hank:
This bill will require dismissal of a lawsuit in Massachustetts, Guzman v. Kahr Arms. The defendant reportedly hired an employee who was a crack addict who supported his habit by trading half-finished guns for drugs and cash. The lawsuit contends that the defendant hadn't done a background check on him before hiring him, and did not use metal detectors to prevent employees from leaving work with guns. One of these guns ended up causing the death of the plaintiff's decedent. This is one of the "abusive" suits that the new law will prevent.
10.20.2005 3:32pm
keypusher (mail):
I know this is something you and Professor Volokh have put a lot of work into. Congratulations.
10.20.2005 3:34pm
Daniel Chapman (mail):
errr... person A.
10.20.2005 3:34pm
steveh2 (mail):
I think there's an error in your reasoning, in use of the term "the" personal responsibility, signifying that there can be only one person who bears "responsibility" for the incident. What is the basis for that conclusion?

To elaborate on your hypothetical, Person B was the sole source of income for his family. Because of his death, his family has been deprived of $500K in expected income over the past five years, which is necessary to send Person B's child to college. Person A has $0 in assets.

Who is or should be more responsible for the losses -- Person B's child, who did nothing wrong, or the manufacturer, who collected a profit for selling a product, the sole purpose of which was to allow persons to kill each other (or to kill animals) from long distance?

And, more to the point of the main post, Person B's child has lost her father, and lost his income. SHE's the abusive one for seeking redress? Not the company profiting from the ability to inflict death or injury?

(That's why I think you can draw a line between gun sales and car sales. While cars give you the ability to kill others, that is not their purpose.)
10.20.2005 3:37pm
Daniel Chapman (mail):
Why don't you pay for person B's child's education? After all... Person A, who is ultimately responsible, has no assets... wouldn't it be more fair for you to pay than for person B's child who did nothing wrong?
10.20.2005 3:40pm
steveh2 (mail):
Err, my post was in response to Daniel Chapman's first post above ...
10.20.2005 3:40pm
Hans Bader (mail):
The constitutional objections to this bill are hypocritical. It's obviously a constitutional exercise of Congress's powers under the Commerce Clause.

The courts have upheld the total ban on private possession of machine guns, and total ban on possession of guns by juveniles, as a proper exercise of Congress's commerce powers.

This bill, which prevents the D.C. Council from imposing strict liability on Tennessee gun-sellers merely because a Tennessee buyer later moves to the District of Columbia and then commits a crime in D.C., is obviously much more closely linked to interstate commerce than the juvenile gun possession and machine gun possession bans.

Indeed, it effectuates the core purpose of the dormant commerce clause, to prevent one jurisdiction from effectively regulating conduct that occurred within another.
10.20.2005 3:40pm
Bob Bobstein:
Daniel Chapman: if I ran you down in my car, you wouldn't sue GM.

A fine point. But no one here disagrees with that. The issue is, what about when the gun manufacturer konwingly distributes guns that it knows will end up in the hands of bad people (or, as Hank points out above, negligently hires bad people), and as a natural and foreseeable result, people are hurt? This law might be-- we can't tell from the post-- a windfall to tortfeasors.
10.20.2005 3:41pm
J..:
S. 397 is also a proper exercise of Congressional power under section 5 of the 14th Amendment, to prevent local governments, including local courts, from infringing the Second Amendment rights (and the parallel state constitutional rights in 44 states) which are guaranteed to all law-abiding Americans.



This confused me. David, do you think that lawsuits by local governments (e.g., the City of NY) or lawsuits entertained by a local government (e.g., some Superior Court in Massachusetts) against gun manufacturers were unconstitutional as violative of the 2d amendment, viz the 14th? Presumably, a Court could have so found if Congress exercised its Section 5 powers.



At first blush, this seems an absolutely remarkable claim and well beyond any notion of the text, history, or purpose of the 2d amendment.



I can imagine being for the act based on policy reasons (I'm not b/c I don't favor protectionism for specific industries, esp when the gun industry has won most of the lawsuits filed thus far anyway), but to argue that the act is — virtually — constitutionally compelled seems a stretch.



[Reply from Dave: Yes, I think those lawsuits were a violation of the 2d/14th Amendment, although no court has ruled against such lawsuits on that basis. I do think that under section 5 of the 14th Amendment, Congress has the discretionary power to prohibit any form of state action--including local government suits in state courts--which infringe national constitutional rights.



Many of questions raised by other commentators, such as arguments about why the lawsuit ban is a bad idea as a matter of policy, are addressed in the articles I've written, and in materials on NRA website. I posted a link to the full text of the bill, so people who want to know the specifics of how the new law will work can find out for themselves.

Congress has enacted a huge variety of lawsuit preemptions, covering many different industries; the preemption was especially appropriate for the firearms business (even putting 2d Amendment rights aside) because the lawsuits were part of a centrally coordinated campaign aimed at coercing an industry to impose controls on sales to its customers--all of whom receive prior approval for the FBI or its state equivalent before every retail transaction--which had been rejected by state legislatures and by Congress.]
10.20.2005 3:41pm
Daniel Chapman (mail):
Bob: Yes I know. I have no doubt that circumstances (real or hypothetical) exist where this law prevents legitimate lawsuits. It's rather pointless to play a game of who can bring up the most examples of "abuse" or "non-abusive" lawsuits though. Apparently, enough abuse went on that congress drew the line. Maybe after a few years of this law, enough legitimate lawsuits will be barred that congress will be convinced to re-draw it.

In other words, my comments weren't meant to imply that all lawsuits are that clear.
10.20.2005 3:44pm
steveh2 (mail):
(In response to Daniel at 2:40)

No, because, just as Person B's child, I also did nothing wrong (at least nothing you can prove at this point ...). And I've had nothing to do with Person B's death.

Once again, it is an undeniable fact that a gun maker is profiting from selling items whose purpose is to give people the ability to kill or harm each other at distance. Maybe there is a policy reason why the maker should not bear responsibility for that, but that reason cannot be established by saying that "the" personal responsibility belongs to someone else, or that trying to place responsibility on the maker is necessarily "abusive."

I think a better argument on your side would be, shouldn't Person B have bought life insurance, since getting shot is a risk of life. I still think the costs of gun sales should be made part of the business of gun sales, so I would still place the responsibility on the manufacturers.

Although you raise a good point -- if we had a more socialistic-type "nanny" society, where health care, education, etc., were guaranteed to the citizens, then there would be less need for a negligence compensation system at all. But I don't see many conservatives fighting to strengthen comprehensive social insurance.
10.20.2005 3:46pm
rbj:
All auto makers know that some of their vehicles will be involved in drunk driving accidents. So why not sue GM, et al., as well as Budweiser, et al. It makes as much sense as suing Smith &Wesson because someone criminally used a lawful product.

Steveh2, that is why there is life insurance.
10.20.2005 3:47pm
Daniel Chapman (mail):
"No, because, just as Person B's child, I also did nothing wrong (at least nothing you can prove at this point ...). And I've had nothing to do with Person B's death."

I thought that was my point. Oh well. Guess we'll just have to agree to disagree on whether the act of making a gun is "wrong." In the meantime, I'm glad to see this law enacted.
10.20.2005 3:47pm
Hank:
rbj: If GM sold a car to someone whom it knew to be drunk and let them drive the car off the lot, they could be sued for negligence -- that's what dram shop laws are. If Smith &Wesson negligently allows a gun to get into the hands of someone it should know might kill someone, then it could be sued for negligence -- but for this new statute. We're not talking products liability here; we're talking plain and simple negligence. That's what Congress has immunized gun dealers from.
10.20.2005 3:52pm
Cornellian (mail):
I'm puzzled about the reference to the 14th Amendment as a constitutional basis for federal jurisdiction here. I would expect it to be pitched as interstate commerce, though I don't know the specifics of what the bill does ("abusive" is a conclusion, not an explanation) so I'm not sure it fits. Still, interstate commerce covers almost anything so it probably does.

Is there caselaw indicating that second amendment rights are implicated by private tort actions against gun manufacturers, and that Congress can enforce those rights against the States via the 14th Amendment?
10.20.2005 3:54pm
steveh2 (mail):
(To Daniel at 2:47)

There were two reasons why I shouldn't be liable. I did nothing wrong AND I did nothing to cause or contribute to the death. Only the first point could possibly apply to the gun maker.

Just so it's clear, I'm not saying that making or selling guns is "wrong." I'm just saying that making or selling guns has clearly foreseeable consequences, and that there is nothing ridiculous or abusive about suggesting that the maker bear those consequences, instead of imposing them on people like Person B's kids.

Hey, I can see someone saying that as a policy matter, liability should not be imposed on gun makers. Perhaps, as the original post suggests, imposing such liability would ultimately weaken our national defense (I don't buy it, but I can see the argument).

But if that is your point, then please be up front about it. In my view, it is less than honest to suggest that a gun maker should not face liability because "the" responsible party is Person A. I also believe that it is dishonest to deny that the gun maker does, in fact, make a profit from selling weapons, or that increased deaths and injuries are directly foreseeable consequence of the manufacture of guns.

And it is insulting to victims of accidental and intentional gun violence to suggest that it is abusive or illegitimate for them to seek compensation.
10.20.2005 3:59pm
KeithK (mail):
Firearms have legitmate, non-criminal purposes - self-defense and sport. A lawful gun owner does not purchase a weapon with the intent of killing people. The fact that some may use guns in an unlawful manner should not impose liability on a dealer or manufacturer who operates according to the law.
10.20.2005 3:59pm
Hank:
KeithK: a dealer or manufacturer can be negligent without violating a law. This statute immunizes them from negligence.
10.20.2005 4:01pm
Daniel Chapman (mail):
We're talking about a statute passed by congress, not judicial decree. Of course I'm talking about the policy implications of holding gun manufacturers liable. I'm even willing to accept that some legitimate lawsuits will be prevented by this bill, and I believe as a matter of POLICY that a gun manufacturer should not be held responsibile in any way for "causing" a death when responsibility clearly lies with the person who did the shooting.

Up front enough?
10.20.2005 4:01pm
TallDave (mail) (www):
when the gun manufacturer konwingly distributes guns that it knows will end up in the hands of bad people

It's also natural and foreseeable that people will run each other over with cars. Or stab each other with kitchen knives. Or hit each other with hammers. Or beat each other with sticks.

Do you sue the guy who planted the tree the stick came from?
10.20.2005 4:02pm
TallDave (mail) (www):
And it is insulting to victims of accidental and intentional gun violence to suggest that it is abusive or illegitimate for them to seek compensation.

Yes... compenstion from the party that injured them.
10.20.2005 4:03pm
steveh2 (mail):
rbj, in my view, one can draw a line between gun makers and GM or Budweiser because neither GM or Budweiser are in fact working to give people the ability to kill each other. If GM could feasibly add an avoidance system that would prevent contact with pedestrians or other vehicles, it would probably do so. If Bud could add a feature that would prevent drunks from getting behind the wheel, it would probably do so.

But there is no way Smith &Wesson would add a feature preventing a gun user from being able to kill others. Doing so would defeat the very PURPOSE of having a gun.
10.20.2005 4:03pm
TallDave (mail) (www):
neither GM or Budweiser are in fact working to give people the ability to kill each other.

Yes they are. It's easier to kill people with a car or a broken beer bottle.

If GM could feasibly add an avoidance system that would prevent contact with pedestrians or other vehicles, it would probably do so.

And if gun makers could make a gun that only shot in self-defense, they would.
10.20.2005 4:06pm
Owen Courrèges (mail) (www):
StevenH2,

Are you saying that every industry should pay for the costs of the foreseeable misuses of their product? Every kitchen knife maker should pay the families of those injured with their kitchen knives? Ever car maker should pay out to those injured while using their cars? By your logic, any time the sale of a product could foreseeably lead to injury, the manufacturer is liable.

You've been to law school, so you know that's not the way our tort system works. We hold manufacturers liable for manufacturing defects, design defects, or failure to warn. You're claiming none of these, that manufacturers should be held liable for selling a perfectly legal product simply because misuse is foreseeable. By that logic, virtually everyone in the market is stictly liable for almost any injury. That's absurd on its face.
10.20.2005 4:07pm
Cornellian (mail):
I'd rather see comprehensive reform of the tort system in general rather than this kind of ad hoc patch for whatever type of lawsuit is currently in the news.

However, I suppose since tort law in general is within state jurisdiction and given the political realities, I suppose an ad hoc patch is better than nothing. I just have some lingering concern that this is going to end up like the tax code, with businesses making economically irrational decisions based on the vagaries of a "swiss cheese" approach to tort reform.
10.20.2005 4:09pm
steveh2 (mail):
To KeithK (and others): I recognize that people don't buy guns with the intention of killing others. But they buy them to obtain the ABILITY to kill or harm others from distance. A gun only works for self-defense if the aggressor knows that the gun could kill or injure him.

Since there are a bunch of people on this now, can anyone give me a good moral reason why a gun maker should not be liable for deaths/injuries resulting from the manufacture of guns? I don't mean an argument based on tree-planters and GM not being liable for injuries caused by their products. I mean an argument that imposing liability on makers would be immoral, unfair, or otherwise "wrong."
10.20.2005 4:09pm
TallDave (mail) (www):
I mean an argument that imposing liability on makers would be immoral, unfair, or otherwise "wrong."

Easy, they didn't injure anyone. Punishing someone for something they didn't do is wrong.
10.20.2005 4:10pm
Elliot123 (mail):
What's wrong with profit?
10.20.2005 4:11pm
Alex Dorph (mail) (www):
Im very into gun control, and regulations and the like...

But I dont have a major problem with this. I think that in many cases, the lawsuits as enforcement trend in our culture goes too far.

I think that gun makers are harldy to blame for gun control problems. I think it is much more about gun dealers, gun shows, or gun owners (legal ones) who dont keep their gear under lock, or who sell it to criminals etc.

As a person said above, its not the knife maker that is the problem (so long as they make a legal product), it is the store that sells the knife to a kid, or the parent who leaves a knife around for their kids, or the criminal who uses the damn thing.

And all this from a liberal! :O)

R2000
Bathroom Review
10.20.2005 4:11pm
Bob Bobstein (mail):
TallDave: please read the comments above. This point about suing the tree planter has been dealt with. Hank wrote: If GM sold a car to someone whom it knew to be drunk and let them drive the car off the lot, they could be sued for negligence -- that's what dram shop laws are. Here, however, we have a windfall to negligent tortfeasors, if this law in fact immunizes negligence.

steveh2, you are not helping Hank and me out much with your arguments. Guns can be used lawfully in self-defense.
10.20.2005 4:11pm
Owen Courrèges (mail) (www):
steveh2,

Sure. I'm arguing that gun makers should not be liable for the misuse of their products unless they were somehow defective in design or manufacture, or without reasonable warning, or they were somehow legally negligent. What you propose, however, is making gun makers liable simply for making guns -- when they have done nothing wrong, and there is nothing wrong with their product. The law doesn't impose such liability, and neither does common sense. Hence the GM analogy.
10.20.2005 4:13pm
rbj:
Hank, if S&W sold a gun to a guy who's getting away from a bank robbery, fine. Usually though, people are not drunk when they are buying a car or in the midst of a crime when buying a gun.

My big beef is with all of these tort suits that try to "socialize" (as my torts prof called it) the costs of a subsequent actor who intentionally misuses a lawful product. I wouldn't hold GM responsible for drunk drivers, S &W responsible for murderers, or teddy bear makers responsible for pedophiles.
10.20.2005 4:14pm
TallDave (mail) (www):
Bob,

I see, you dismiss all the valid arguments, then ask for a valid argument.
10.20.2005 4:14pm
Daniel Chapman (mail):
I don't think anyone's arguing with you or Hank, Bob. Just Steveh2.

To you and Hank, all I can say is that I think you overestimate the occasions where the MANUFACTURER of the gun
10.20.2005 4:16pm
IT Guy:
Not to be too picky or anything, but a lot of the comments seem to assume that negligence on the part of gun manufacturers is fully protected under this law. A quick reading of the bill itself would show otherwise. In part, here's what is listed under things that the law will not block:

(i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought

That seems to address at least some of the concerns posted about here.
10.20.2005 4:17pm
Owen Courrèges (mail) (www):
Bob,

The law may be overbroad by necessity, but it doesn't limit all liability for negligence. It is my understanding that there is still liability for knowingly selling a gun that will be used in violent crime or narcotics offense.
10.20.2005 4:18pm
Veggie_Burger (mail):
You originalists need to reread the 2nd amendment. It says that the right to bear arms shall not be infringed upon. Well, I want my nuclear tipped missle right now! I'm not going to tell any of you (another constitutional right btw) where I'll stash my ICBM or when I intended to launch it, or which population center I plan on destroying. It's just too bad that I'm a paranoid schizopohrenic and I think you're all a bunch of devils - I thought that when I wasn't psychotic too!
10.20.2005 4:19pm
Bob Bobstein (mail):
rbj: the costs of a subsequent actor who intentionally misuses a lawful product.

If I sell a car to my cracked-out neighbor, I might be liable under negligent entrustment. If a gun manufacturer is on notice that 95% of its sales to Sam's Gun Shoppe wind up on the black market and 55% of those are used in crimes, then we are in the realm of negligence. This new law creates an exception to the rule of law by immunizing negligence for one industry. I think that I am supporting an individual right to bear arms and elementary legal principles of liability all at the same time.
10.20.2005 4:20pm
Daniel Chapman (mail):
mea culpas...

I think you overestimate the occasions where the MANUFACTURER of the gun should legitimately be held liable. Examples like selling a guy who's obviously drunk and letting him drive off the lot is NOT the same as suing GM for making a dangerous product.

For those more familiar with the details of this law than I am: Say there's a gun store owned and operated directly by the manfuacturer, and the salesman let an obviously deranged person walk out with a gun with no questions... would the gun manufacturer be vicariously liable for the salesman's negligence? Does this sort of lawsuit fall outside of the statute?
10.20.2005 4:21pm
steveh2 (mail):
To Owen:

I'm not saying that liability should extend all the way to foreseeability. But as you know, the law imposes strict liability on certain highly dangerous activities. I would put the sale of guns in that class, for the reasons I have outlined above (degree of danger, the purpose of the item, the utility the item has other than the ability to inflict injury/death, etc.). And what motivates me is not simply the notion that guns could be used by bad people to commit crimes, but also that guns can be used by innocent, but careless people.

TallDave, do you really think that if gun makers could somehow develop a gun that could only shoot in self-defense, they would do so?
10.20.2005 4:21pm
TallDave (mail) (www):
Well, I want my nuclear tipped missle right now!

Guns have a legitimate use as a self-defense tool. Nuclear-tipped missiles have no legitimate civilian use.

I think it's pretty well-established that if a product has a legitimate use, it can be sold regardless of whether people will abuse it.
10.20.2005 4:21pm
Bob Bobstein (mail):
Owen Courrèges, IT Guy, thanks for your info-- some of my concerns were overheated.
10.20.2005 4:21pm
TallDave (mail) (www):
TallDave, do you really think that if gun makers could somehow develop a gun that could only shoot in self-defense, they would do so?

No, I think they're murderous hateful monsters that want criminals to kill people.
10.20.2005 4:22pm
David M. Nieporent (www):
Or is the term "abusive" simply added as a matter of hackery?

No. You want to know what 'hackery' is? Rhetorically attacking someone in the guise of asking a question, the answer to which is readily available by reading the bill in question.
10.20.2005 4:23pm
Daniel Chapman (mail):
It's also been pointed out (Here, if I'm not mistaken...) that there is a difference between "arms" and "ordnance."

"original meaning" and all that jazz... no, you can't have your nuclear warhead.
10.20.2005 4:24pm
TallDave (mail) (www):
TallDave, do you really think that if gun makers could somehow develop a gun that could only shoot in self-defense, they would do so?

Think about how many people don't own guns. Now imagine they can buy a gun that only fires for good and moral reasons: never by accident, never to commit a crime, only in self-defense. You'd have very little reason not to buy such a gun.

I think it's safe to say that would at least double their market.
10.20.2005 4:25pm
corngrower:
Steveh2

And you would hold GM to the same standard? GM Sold a car to a person with a drunk driving conviction? It is without question GM sold the car. Or, maybe it was the dealer. He's the one in the wrong, or maybe it was the women across the street that was the last person that sold the car. (for cash, thats suspicious!)
10.20.2005 4:31pm
Hank:
Daniel Chapman: the manufacturer would be liable only if the salesman had violated a state or federal statute in selling to an obviously deranged person, or if the sale constituted "negligent entrustment" as defined by the bill. If the obviously deranged person were legally entitled to purchase a gun, then I'm not aware of a statute that would prohibit the sale, but, depending on the circumstances, it might be "negligent entrustment," which the bill defines as supplying the product when you should know that the recipient is likely to injure someone with it.
10.20.2005 4:33pm
David M. Nieporent (www):
I still think the costs of gun sales should be made part of the business of gun sales, so I would still place the responsibility on the manufacturers.

If you want to make gun manufacturing a strict liability matter, that's one thing. It would effectively destroy the second amendment, but at least it would be logical and consistent. But that's not what the trial lawyers are doing; they're filing what are at least nominally negligence suits.

----

Yes I know. I have no doubt that circumstances (real or hypothetical) exist where this law prevents legitimate lawsuits. It's rather pointless to play a game of who can bring up the most examples of "abuse" or "non-abusive" lawsuits though.

Dan, that's true, but it's also important to understand that (based on my experience when this bill came up for approval last time around), at least 75% of the "legitimate lawsuits that will be prevented by this bill" examples raised by anti-gun types will actually be lawsuits of a type that are NOT preempted by the law.

For instance, pretty much everything Hank says above in this thread is wrong. Neither lawsuits for negligence nor lawsuits for negligent entrustment are affected by this law.
10.20.2005 4:33pm
David M. Nieporent (www):
"Hacktacular" -- I don't think you know the meaning of "hack." Or the meaning of "standard."

The former does not mean "People who know more than an anonymous poster about a subject." The latter does not mean "majority," nor does it mean "average" (although it could).

It's unclear why gun owners are a "disgraceful special interest" to you, although perhaps you're following the logic of the New York Times, which thinks that this is a disgraceful giveaway to a special interest but at the same time is campaigning heavily for a journalist shield law.
10.20.2005 4:54pm
steveh2 (mail):
TallDave: I'm not suggesting that gun makers are murderous hateful monsters who want criminals to kill people. But in the absence of liability, what incentives would gun makers have NOT to be?

I don't think makers would limit themselves to defense-only guns because in my experience, a lot of people buy guns for reasons other than self-defense (like hunting, or just to have cool powerful weapons in their hands). If defense were the only goal, I don't think you'd need to have a lot of range, but are makers working to limit the range on the weapons they sell?

I probably would buy a defense-only gun, though.

Corngrower: As I've said before, I think car makers are in a different class than gun makers. So I don't think any "same standard" argument would work. But if GM decides to add a super-powered engine that enables the car to go 200 miles per hour, and makes that feature a big part of its marketing, I would support a claim against GM by victims of a 200-mph impact.

I will admit that there can be no bright line. But the law usually doesn't have bright lines. I believe it comes down to utility, purpose, degree of dangerousness, etc.

TallDave: As I read your moral argument against imposing strict liability on a gun maker, it's that it is immoral to impose liability on someone who didn't cause the injury. But there are other situations in which the law imposes liability without fault. In strict liability, a person may be held liable for causing an injury even if he or she didn't do anything "wrong." And in workers comp, an employer is liable for an employee's injury even if the employer did nothing wrong. I don't see strict liability as immoral in those situations, and I think the same reasoning would apply to gun makers.

My preference to see liability on gun makers isn't because they're evil and should be punished. It's because, IMHO, the sale of guns imposes costs, and those costs would be most effectively, and most fairly, visited on those who profit from the sale. I would expect the sellers to spread the costs through insurance, higher prices, etc. But once again, between Person B's kid and the seller, it just seems more fair to impose those costs on the seller.

To David Nieporent, why would strict liability gut the Second Amendment? Are you saying that imposing liability would inherently violate the Amendment? Or that the consequences of imposing liability would shut down the industry, thus making guns unaffordable or unavailable? Or something else?
10.20.2005 4:57pm
Houston Lawyer:
I guess next they'll have to start suing Dell Computers for selling computers to pedophiles who use those computers to download child-sex pictures from the internet. Or is it the pedophiles who sue Dell, because without that computer they wouldn't have been busted for downloading kiddie porn? When the judiciary greatly expands the liability of people who have done nothing wrong (other than legally pursuing a living) sometimes the legislature steps in to limit the judiciary. That is the essence of a functioning democracy.
10.20.2005 5:11pm
Brett Bellmore (mail):

How is it possible for the "vast majority" of ammunition to be more likely to penetrate body armor than "standard ammunition of the same caliber."


It's trivially simple: Hunting ammo, in order to be effective, must be more penetrating than target ammo, which only has to "kill" pieces of paper. All you need is for the AG to declare target ammo to be the "standard", and hunting ammo can be declared "armor piercing".

And we've had several AGs who'd have done that in an instant, given the slightest legal leg to stand on.
10.20.2005 5:13pm
Lyn Y (mail):
Below is a part of a column written by Robert Reich, former Clinton Cabinet official, entitled "smoking and guns". The column was written in response to the Clinton Administration's attempts to use lawsuits similar to those brought by the Brady Center and a number of large cities against gun manufacturers to alter gun policy under the guise of enhancing "gun safety". I think Reich's comments were right on the mark and I strongly applaud the Congress for passing the legislation passed today. It was long overdue!

from the article:

A few weeks ago, the administration announced another large lawsuit, this one against America's gun manufacturers. Justice couldn't argue that the gunmakers had conspired to mislead the public about the danger of their products, so it decided against using RICO in favor of offering "legal advice" to public housing authorities organized under the Department of Housing and Urban Development, who are suing the gunmakers on behalf of their three million tenants. The basis of this case is negligence--the gunmakers allegedly sold defective products they knew or they should have known would harm people.

Both of these legal grounds--the mobster-like conspiracy of cigarette manufacturers to mislead the public, and the negligence of the gunmakers--are stretches, to say the least. If any agreement to mislead any segment of the public is a "conspiracy" under RICO, then America's entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon. And if every product that might result in death orserious injury is "defective," you might as well say goodbye to alcohol and beer, fatty foods, and sharp cooking utensils. These novel legal theories give theadministration extraordinary discretion to decide who's misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust.

Worse, no judge will ever scrutinize these theories. The administration has no intention of seeing these lawsuits through to final verdicts. The goal of both efforts is to threaten the industries with the risk of such large penalties that they'll agree to a deal--for the cigarette makers, to pay a large amount of money to the federal government, coupled perhaps with a steep increase in the price of a pack of cigarettes; and for the gunmakers, to limit bulk purchases and put more safety devices on guns to prevent accidental shootings. In announcing the lawsuit against the gunmakers, Secretary of Housing and Urban Development Andrew Cuomo assured the press that the whole effort was just a bargaining ploy. "If all parties act in good faith we'll stay at the negotiating table."

But the biggest problem is that these lawsuits are blatant end-runs around the democratic process. We used to be a nation of laws, but this new strategy presents an entirely novel means of legislating--with settlement negotiations of large civil lawsuits initiated by the executive branch. This is nothing short of faux legislation, which sacrifices democracy to the discretion of administration officials operating in utter secrecy.
10.20.2005 5:30pm
jgshapiro (mail):
I can see arguing for this law on policy grounds: that gun manufacturers are almost never the proximate cause of these accidents, but make too tempting targets for lawsuits because of their deep pockets. So you pass a law establishing immunity for them except where they could conceivably be the proximate cause of the injury. From a constitutional perspective, ths is justified on commerce clause grounds.

I cannot see the argument, however, that this law is justified as a means of enforcing second amendment rights, or the even sillier argument from Kopel that you need a broad civilian market in arms to keep the military market innovating.

The second amendment was not adopted to allow sportsmen (and women) to own guns, nor was it adopted to allow people to own weapons for self defense against criminals. It was adopted in the wake of the Revolutionary War as a measure to keep a newly powerful federal government from tyrannical measures, including the abolition of democracy, on the theory that the government couldn't menace the people if the people were armed to the teeth and could fight back against the government.

The problem with this argument today is that the federal government is armed with weapons far more powerful than the citizenry. Since almost no one is willing to allow Joe Sixpack to buy a tank, what is left of the core purpose of the second amendment? What are a bunch of people armed with handguns, shotguns and rifles going to do if and when they are confronted with M-16s, laser-guided smart bombs and tanks?

As for Kopel's argument, how does innovation in the handgun/shotgun/rifle market assist gun manufacurers in making laser-guided automatic weapons? This may have been true in the 1800's, but I have hard time seeing how it makes any sense today. Military weaponry today is far more powerful and modern than non-military weaponry and gets even more so as each year passes.
10.20.2005 5:38pm
TallDave (mail) (www):
I'm not suggesting that gun makers are murderous hateful monsters who want criminals to kill people. But in the absence of liability, what incentives would gun makers have NOT to be?

The same incentives as people who make or do anything else.

I don't think makers would limit themselves to defense-only guns because in my experience, a lot of people buy guns for reasons other than self-defense (like hunting,

OK, our hypothetical magic gun now fires for any reason not morally objectionable, including hunting and target practice. Do gun makers make it? Hell yes, it's now the perfect gun as far as most people are concerned. Just as a perfecttly safe car would be desirable, so would a morally responsible gun.

You seem to be assuming that criminals are the primary market for guns, nd that gun makers would be loathe to lose it. Not so.
10.20.2005 5:41pm
IT Guy:
jgshapiro,

There is a civilian version of the M16, so that might not be the best example for your argument. Also, every military I know of, including the US military, still uses handguns and rifles, so the innovation argument isn't all bad. The M16 was fairly recently upgraded from the M16A2 to the M16A4, and the military also fairly recently picked a new shotgun. Yes, they have other things (smart bombs, tanks, mortars, etc.) that the average civilian would have no way to get, but they also have small arms that the civilian sector helps develop.
10.20.2005 5:43pm
Andy Freeman (mail):
> If a gun manufacturer is on notice that 95% of its sales to Sam's Gun Shoppe wind up on the black market and 55% of those are used in crimes, then we are in the realm of negligence.

Gun stores are regulated in this country. Manufacturers can not sell to individuals or unlicensed biz.

If the alleged facts are actually true, that sure looks like a regulatory failure. If the law can't shut down
"Sam's gun shop", doesn't that suggest that the alleged facts are simply untrue? If it is true, isn't the correct response to shut down sam's gun shop? ("Correct" doesn't result in a contingency fee or stop the gun manufacturer from supplying other buyers. Why should I, an honest guy buyer, pay because law enforcement doesn't?)

BTW - A large fraction of cars will be driven by a drunk at some point. Almost all cars will be used to speed at least once. Should be GM liable?

BTW - The "into the black market" and "used in crimes" is not nearly the virtuous standard implied. For example, what does "black market" mean in one of the many states where personal sales are unregulated? What does "used in crimes" mean in a state where it is technically illegal for someone to take a legally purchased gun home, where it can be legally possessed.
10.20.2005 5:45pm
eddie (mail):
Perhaps this is too simple a question to pose on such a "learned" subject:

The Second Amendment protects the owner of the gun. So where is the constitutional underpinning for this "reform".



The arguments hidden in all of this seem a bit circular:

First there is the conflation of the right to bear arms and our first amendment rights. Then there is the ever present "originalist" interpretation of the Second Amendment that simply states that the words



A well regulated militia, being necessary to the security of a free state,


really don't mean much.

Finally there is the reverse engineering of the commerce clause, i.e. by taking away common law causes of action (which may or may not be put forth by individuals or groups of individuals) a non-individual (namely, the gun companies) are being granted special rights that no individual would ever be granted. Where is the constitutional basis for protection non-human entities?

I find it almost pornographic that one equates the rights and issues having to do with first amendment rights with the right to bear arms (remember that old saw "sticks and stones").

So let's do a little comparison:

Zoning laws which limit where "adult" entertainment establishments have be sanctioned as not impacted any First Amendment rights, based on a fairly low standard, and usually the winning argument is: These places are a breeding ground for illicit behavior.

Now, let's see, guns are used in the commission of crimes and actually do physical harm to citizens and impinge on their basic right to life, liberty, etc. However, even the most basic licensing schemes draw howls of constitutional outrage. So tell me what am I missing, because none of the arguments used here (or in what seems to be passing for legal scholarship-publish or perish) have any "reasonable" basis.

The argument that there is no priority among the amendments and the substantive rights granted thereunder is belied by the absolute supremacy that seems to be placed on the Second Amendment. I can be arrested for yelling "fire" in the theater, but if I am a gun seller and sell to a criminal ... I should escape liability?

Please show me how this is based on a rational analysis based on principal. And certainly not based on the common health of the people.
10.20.2005 5:52pm
IT Guy:
eddie,

Have you bothered to actually read the law? First of all, it's not about gun sellers, it's about gun manufacturers. If a gun seller sells a gun to a criminal, this law doesn't protect them at all. Where are you pulling your argument from?
10.20.2005 5:55pm
Tflan (mail):
Guns are designed to kill. That is their purpose. Their legitamate use is in killing (injuring) something. It is up to the operator to use the gun as designed for a socially acceptable end.
Matches are designed to burn. That is their purpose. Their legitamate use is in burning something. It is up to the operator to ensure the fire is only used for socially acceptable ends.
A gun that cannot kill is a paper weight and a match that cannot burn is a toothpick.
There can be no liability (real negligence excepted) when a product is used as intended, but for an immoral purpose.
10.20.2005 6:01pm
Eric Anondson (mail):
Then there is the ever present "originalist" interpretation of the Second Amendment that simply states that the words

"A well regulated militia, being necessary to the security of a free state, ..."

really don't mean much


Actually, I would say that an originalist interpretation does not claim those words don't mean much. Rather that those words don't mean what you think them to mean. Militia meant something a bit different in the 18th century than it does today.
10.20.2005 6:07pm
BWA (mail):
steveh2:

You seem to suggest that gun makers should be liable because guns are only intended to kill people. So what? Killing people is not a universally wrong, or unacceptable outcome. Killing people is not, by default, illegal. Only when killing people in specificly defined circumstances, called murder, is it illegal. There are times, I think, when it would be immoral not to kill someone, provided you had the power to do so. In fact, the purpose of the Second Amendment is to guarantee that the federal government would not take away the citizens ability to kill.

Turning to the automobile analogy. I think its probable that with current technology, all automakers could make their cars shut off at a certain maximum speed, i.e., 70 miles per hour. I don't think there are many (if any) places out there where it is legal to drive above 70 mph. Should automakers be held strictly liable for auto accidents in cars traveling more than 70 mph ?
10.20.2005 6:11pm
A Guest Who Enjoys This Site:
Houston Lawyer is about the only one, thus far, who has pointed to the forest for the trees. What just about everyone has missed is the motivation behind this legislation, to wit:

There has been a conscious, deliberate, and demonstrable effort in the creation of multiple and, often, frivilous lawsuits against firearms manufacturers with the express intent of increasing the cost of manufacture to a point where it would be perceived as unprofitable to continue operation. The scheme is deliberately designed by gun control/elimination groups to use the judiciary as a 'weapon' to accomplish what they could not achieve through the free market or the legislature. In other words, it was a deliberate and inappropriate use of the judiciary to achieve legislative ends. Thus, the legislature is simply reasserting its authority as a Constitutionally intended 'check' on such activities.

Were there legitimate suits related to negligence? Certainly. Were they precluded by this legislation? Certainly not.

What it appears to boil down to, so far, on this thread is that we have two positions. Position One: Firearms manufacturing is legal and manufacturers should be held no more liable than any, non-firearms manufacturer, for the creation of a product. Position Two: All firearms manufacture is intrinsically 'evil' since the end product can be used for criminal or nefarious purpose, and while production of the product may be legal, it certainly should be penalized due to the potentialities of use.

No matter where you stand vis a vis the Second Amendment, I find there is a distinct difference between positions one and two. Position One is a rational, consistent, and fair approach to legislation and legal decisions. Position Two is an agenda-ridden, intellectually inconsistent, and decided, prejudice-informed, pejorative approach to leglislation and legal decisions.

Similar styles of reasoning as found in Position Two has led to the very controversial and suspect limitations placed on cold/allergy medicines. The end product has been used for the 'evil' purpose of illicit drug manufacture; thus, no matter the positive and legitimate purpose of the original manufacture, the product must now be 'regulated' and distributors held criminally 'liable' for an unintended use. Further, should citizens who are allowed to legally purchase the product for the intended use obtain more than an arbitrarily established 'amount' of the product within a specified period of time, they shall be subject to investigation as a potential criminal suspect or person of interest in a criminal investigation.

This exemplar is only one of a number of instances where Position Two-style reasoning has created a perception of 'illegality' and 'civil liability' around a previously and continued legal activity. Again, regardless of where one stands on the issue of the 2nd Amendment, the intellectual inconsistency, intellectual dishonesty, and the potential net effects of such a premise has got to be troubling to any rational analysis.

In fact, it is the very 'extremism' of this position that leads to the 'extreme' exemplars, no matter how logically they follow, from holders of Position One. Such myopic extremism is exactly what is described in the phrase: "Can't see the forest for the trees."
10.20.2005 6:14pm
luagha:
In answer to: "What do people armed with handguns, shotguns and rifles do if they are confronted with M-16s, laser-guided smart bombs and tanks? "

Traditionally they hide their handguns, shotguns, and rifles. Later, when the heat has died down, they assassinate political leaders. Eventually political leaders can't show their face without so many armed guards that there's not much point, and eventually the police forces can't safely show their faces either - like the way the German police were forced to leave the Warsaw ghetto and call in three divisions of the SS.
I won't say it's safe, but that's the way things go once it's that far gone. You have to have the guns to get to that point, though.
10.20.2005 6:16pm
big dirigible (mail) (www):
Phew, what a load! I like this one, "the courts have upheld the total ban on private possession of machine guns". There is no such ban. The last figures I checked from ATF showed something very close to a quarter of a million machine guns registered and in private hands in the US. Some ban.

This one's good, too - "there is a difference between 'arms' and 'ordnance'." Not so far as the historical understanding of the Second Amendment is concerned, there isn't. Consider the place of the privateer during "Mr Madison's War."

I think some of the posters here have not kept up with the state of the culture wars. The "abusive lawsuits" in this context are the ones which no plaintiff forsees winning, or sees a need to win. The strategy is that the cost of litigation will drive retailers, distributors, and manufacturers out of business without plaintiffs ever having to bear the burden of actually winning a case. Winning a series of lawsuits can put a business out of business every bit as effectively as losing. This strategy has a chance of success because the gun industry is made up of small entities which can be easily out-spent, one after another, by the big pockets which are aligned with the ranks of the anti-gun types.

This is the abuse which the law is meant to deflect. Until the legislatures and the courts decide that guns should be an illegal product, it is not the place of private interest groups to manipulate the legal system to make guns unavailable to the citizenry. Seems like a reasonable law to me.
10.20.2005 6:23pm
A Guest Who Enjoys This Site:
Correction: Houston Lawyer and Lyn Y.

As an example of 'extreme' statements to support 'extreme' positions...


The second amendment was not adopted to allow sportsmen (and women) to own guns, nor was it adopted to allow people to own weapons for self defense against criminals.


Actually, if you were to go and read the debates surrounding creation of the Bill of Rights, such rationale was precisely what many of the delegates and citizenry had in mind and stated such on the record.

A second example...


Now, let's see, guns are used in the commission of crimes and actually do physical harm to citizens and impinge on their basic right to life, liberty, etc.


So, we blame the guns and those who produce them for the illegal or improper use? Guns are inanimate objects which, by definition, "DO" nothing. The animate use of the object requires a causal behavior on the part of an individual. It is NOT the manufacturer who has performed the causal act leading to the inappropriate behavior. The manufacturer has simply created an inanimate object. That is the extent of their behavior, causal or otherwise, in the matter.

Again, the problem here is that some individuals are trying to defend a specifically desired outcome by using inappropriate means. Thus, they are led to the use of false claims or nonsensical exemplars. How is this appropriate, legal reasoning or rational discourse?
10.20.2005 6:32pm
steveh2 (mail):
BWA: You are right in that my preference for strict liability is because guns are designed to kill. But not because killing is always illegal, or prima facie illegal, or always wrong, or whatever. And not because the manufacture of guns is immoral.

My position is based on the fact that guns are dangerous. Extremely dangerous. And not just dangerous to the user, but dangerous to others who had no part in the user's decision to buy a gun. And that they are INTENDED TO BE AND DESIGNED TO BE dangerous (unlike Dell computers, six-packs, tree seeds, station wagons, etc.).

The law has long recognized that highly dangerous activities can be the subject of strict liability, not because those activities are immoral, but because those who engage in dangerous activities should ultimately bear the costs those activities are likely to impose on others, as opposed to imposing costs on people like Person B's kids. I'm merely saying that the manufacture and sale of guns should be considered an ultrahazardous activity, and that those who willingly engage in the sale of dangerous weapons should bear more responsibility than people who just happened to be living withing shooting range of people who decide to buy guns.

But what drives me the most about issues like this is that many times, the same people who trumpet "personal responsibility" are also calling it "abusive" to suggest that gun makers bear responsibility for the foreseeable and natural consequences of their actions.

In my view, I can see a legitimate policy-based argument that gun makers should not be liable for deaths or injuries caused by guns. But I do not believe that one who makes that argument can validly claim to be supporting personal responsibility at the same time.
10.20.2005 6:51pm
Bruce Hayden (mail) (www):
I am going to slightly disagree with big dirigible on his definition of abusive law suits. My definition would probably add that they are primarily designed to make changes at a national level through local courts. Or, maybe that their purpose is not primarily to compensate injured parties, but rather to significantly affect a national business (selling an entirely legal product).

And they potentially might impact interstate commerce. If a successful (or even an unsuccessful) law suit in Chicago can affect my gun buying in Colorado (including making me pay more to also buy an unneeded gun lock), then I think you clearly have interference in interstate commerce. And, thus, hanging the Constitutionality of this bill on regulating Interstate Commerce is, IMO, highely justified.
10.20.2005 6:52pm
Nunzio (mail):
Interesting that 34 states already had a similar law on the books. Seems sort of lazy for the manufacturers to just go to Congress when they only had 16 states left to lobby.

This law seems well within the commerce clause, but I don't buy the Section 5 argument. It first assumes that the 2nd Amendment, whatever it means, is incorporated through the 14th Amendment against the states. What if it's just another 7th Amendment?

Second, doesn't seem this is a congruent and proportional way to protect 2nd Amendment rights. Law is way too broad. There's already at least one gun for every American so even if all gun manufacturers were gone tomorrow, there's plenty of guns for the next 10 generations of Americans.

Last, let's not forget that it was juries who were holding manufacturers liable. Courts let the lawsuits go through, but juries decided whether or not manufacturers were liable. Sort of elitist to take these issues away from them. Thought the point of the common law was to let 6 or 12 citizens decide the standards for an industry.
10.20.2005 7:03pm
Bruce Hayden (mail) (www):
steveh2

Sure, guns are dangerous. Cars are just as dangerous. I am far, far, more likely to injure someone with my car than with my gun. But, then, again, the vast majority of gun owners never point their guns at another person, or if they do, it is with the potenital intent to do legitimate, legal, bodily damage to that other person.

But I think that you have given away your agenda. A majority of Americans apparently believe that guns are worthwhile to own or to have in the community. You are essentially suggesting that their elective will be overriden by your view that they are wrong, and that guns are too dangerous to have in the hands of the populace. In short, you are suggesting the imposition of a judicial solution more to your liking because you disagree with the elective will of that majority of Americans.

Indeed, that is really the question here. Who should be determining whether gun manufacturers should be liable under a strict liability standard or a negligence standard? The elected representatives of the people? Or a couple of judges?
10.20.2005 7:05pm
Bruce Hayden (mail) (www):
Nunzio

The problem with your point about 34 states already having such laws is that the avowed intent of the law suits (in the other 16) is to affect the actions of gun manufacturers nationally. This is called forum shopping. You find the forum that you like (in this case, one of those 16 states), and you sue there, and ask for what turns out to be a verdict that affects the other 34 states too.

As for the jury suggestion - why should a jury of 12 in one part of the country (in presumably one of those 16 states) decide the issue nationally? Again, you have a small unelected number of people deciding national policy - in this case, potentially as few as 7 people in a 12 member jury.

Besides, you have to look at playing the numbers. What we have seen time and time again with tort lawsuits is that they are often tried over and over again in different courts before different juries, until one finally comes in in their favor. So, your 12 member jury suggestion doesn't include all the 12 member juries who found in favor of the gun manufacturers, just the one or two that didn't.
10.20.2005 7:12pm
PersonFromPorlock:
FOR IMMEDIATE RELEASE
PR- 401-05
October 20, 2005

STATEMENT FROM MAYOR BLOOMBERG ON LEGISLATION THAT PROVIDES IMMUNITY TO GUN MANUFACTURERS

"The House of Representatives has today passed a disgraceful piece of legislation that will give gun manufacturers immunity from acting negligently. Hundreds of Americans are victimized every year by illegal handguns, and it is well-known that many of these guns are in criminal hands because some gun manufacturers turn a blind eye to dealers that sell guns to criminals. Congress' response to this enormous problem is to hand the gun industry sweeping blanket immunity from lawsuits by persons and communities injured by this irresponsible practice. No other industry has this type of protection.

"Granting the gun industry immunity will make it easier for criminals to get firearms and put our law enforcement officers at greater risk. As a City and as a country, we have made great strides in stopping gun violence, and this legislation will seriously hinder our efforts to further reduce crime. I strongly urge the President to veto this damaging legislation."


I note that Mayor Bloomberg says nothing about the "sweeping blanket immunity from lawsuits by persons and communities injured" by irresponsible government practices. Probably too busy preparing legislation to repeal it to comment.
10.20.2005 7:13pm
PersonFromPorlock:
I note that Mayor Bloomberg says nothing about his "sweeping blanket immunity...

Drat.
10.20.2005 7:16pm
KeithK (mail):
The legislature is entitled to set the definitions of liability and negligence. Juries make their decisions within the constraints set down by the legislature. Theerefore I don't think it is in any way elitist to take this out of the hands of juries. It's how our system works.
10.20.2005 7:30pm
steveh2 (mail):
Bruce Hayden:

I do not believe I have ever said that guns are "wrong, and that guns are too dangerous to have in the hands of the populace." It would surprise me to see that I said that, given that I don't believe that statement to be true. So I'm not sure precisely what "agenda" I've given away.

And I do agree that the issue should ultimately be decided by legislatures. I'm not sure that Congress actually represents the will of the "people" on this issue, and I certainly don't agree with the policy decision, but I agree that the law is a legitimate exercise of legislative power. But you will certainly grant me that just because Congress passes a law does not mean that the law is "right." Right?
10.20.2005 7:38pm
Stephan Kinsella (mail) (www):
While lawsuits against gun manufacturers are outrageous, I am not persuaded that this law is indeed a valid exercise of Congress' power. The idea that it is justified because of the effect on interstate commerce is a ridiculous interpretation of the IC clause. That it is not quite as absurd as the construction given in Wickard v. Fillburn does not change this. And the idea that the 14th amendment empowers Congress to do this is likewise absurd: for it rests on the incorporation doctrine, which is based on the ridiculous notion of "substantive due process" and ignores the history and purpose of the 14th Amendment.

Congress has no power to pass such a law. The law is unconstitutional. I bet you Ron Paul, the Conscience of the Congress, voted against it.

Advocates of the right to bear arms and the Constitution undercut their own principles by joining in the distortion of the Constitution even in the support of well-intentioned ends.
10.20.2005 7:47pm
JonC:
steveh2, I realize you've gone a bunch of rounds with several other commenters already, but I have to take exception with your statement that guns are "designed to kill". They are not, anymore than a kitchen knife or hammer is "designed to kill". A gun is a tool that can be to positive or destructive ends, depending on the user.

Okay fine, you say, but it's different because you say that guns "are INTENDED TO BE AND DESIGNED TO BE dangerous" (caps yours). Again, I would quarrel with you over whether guns are "designed" to be dangerous any more than any other tool is. But are guns "intended" to be dangerous? If we assume arguendo that they are, the question becomes, do you favor strict liability for manufacturers of other products that are "intended" to be dangerous, say, pepper spray? If your quarrel with that is pepper spray is non-lethal, what about hunting crossbows? A guy who likes bow hunting goes out, buys a bow, gets drunk, and shoots what he thinks is a deer but is actually a person. Strict liability for the bow manufacturer: good or bad policy?

Finally, since you think guns are so inherently dangerous, I'd point out that there a good many perfectly legal products out there on the market that kill many more people each year than guns. There's a product out there that especially deadly to small children, killing hundreds every year, and results in a particularly debilitating and horrific death through irreversible brain damage. Would you favor strict liability for the makers of this product...the swimming pool?
10.20.2005 7:59pm
mighty iguana:
I do not think it is right to sue gun companies for the act of criminals. You are in effect threaten their right to survive and make a perfectly legal product. Gun are made to kill it is that simple. And it is legal in this country to own things that are made to kill and legal to make instruments made to kill. Because of the nature of that instrument, everybody knows that a criminal would want to acquire that instrument. Suing a gun company because its product has been used as intended, I think it is the same as threatening the reason why the company existed in the first place. The instrument is used as intended, you cannot sue the company because its product was used as intended.
You can't sue a matches maker because some pyromaniac used matches to burn down a forest.
I do believe there is a legitimate case in which the gun manufacturer can be liable, if the gun manufacturer knowingly lets its product fall into nefarious hands. But the fact is we have gun control laws, we have laws for making sure that gun makers do not do such a thing. You can argue that the laws are inadequate, sue the government, and not the gun maker for lax gun laws. If it was found today that the gun makers are delibrately supplying drug dealers with gun and skirting gun control laws on the book, sue the the gun maker for skirting gun controls not for the actions of the drug dealer for using the gun as intended. I guess gun makers are perfectly liable on how their product reaches the market because they are then indeed negligent just knowingly supplying a drunk person with alcohol. But you cannot sue the gun maker because some murderer buys a gun from a guy who gets the gun legally from walmart. The maker is not liable for the gun after the gun reaches legal places of sales. If not you are requiring that gun makers should track every single gun made and make an effort to determine the morality of the owner, I think that is an unreasonable request for the gun makers especially if they follow legal means of distribution.
10.20.2005 8:13pm
steveh2 (mail):
JonC:

I must respectfully disagree with your analogy to knives or hammers. The whole point of having a gun is to have the ability to kill or injure people or things at distance. I will agree that a gun can be a tool to a positive end, but any end achieved with a gun is achieved only because the gun can kill or injure at distance, or from giving the impression that the gun can kill or injure at distance.

As I've admitted before, I can't come up with a bright line rule as to what items or activities are ultrahazardous and should be subject to strict liability, and what should not. (But then again, strict liability for ultrahazardous activities has been around for a long time without bright line rules.) As you predicted, I don't think pepper spray would count, because it's not lethal and because it's probably not going to cause injury at any given distance. I would not subject pool makers to strict liability because the purpose of a swimming pool is not to give someone the ability to kill or injure.

I like your crossbow example, because that one gives me fits. I will put it on the non-strict liability side of the line, but I'm having problems coming up with a principled distinction between that and guns, other than the fact that guns are just more dangerous, to more people, and more likely to cause more uncompensated losses.

(I don't know if this made it into one of my posts or not, but under my ideal gunmaker and gunowner liability law, the liability would be strict, but secondary to the liability of the shooter, and self-inflicted injury would not be compensable.)

I don't really expect to persuade people here to be in favor of strict liability for gun makers. If I wanted to do that, I'd be posting on dailykos or something.

I would hope to convince some people, however, that the idea of such liability should not be dismissed out of hand as absurd, outrageous, or abusive. I would also hope to make one or two people see that anyone who professes to value "personal responsibility" while categorically rejecting gunmaker liability has some reconciling to do.
10.20.2005 8:27pm
Nunzio (mail):
I think if Mayor Bloomberg is so outraged by gun violence, he might make it harder for some people to become an NYC cop.

Lots of people complain how easy it is to get a gun in this country, but almost no one complains how easy it is to get a job in law enforcement, which allows you to have a gun and a right to kill people who you think pointed a cell-phone that "looked like a gun" at you.

If cops can carry guns, most citizens should be able to.
10.20.2005 8:30pm
Brett Bellmore (mail):

I would also hope to make one or two people see that anyone who professes to value "personal responsibility" while categorically rejecting gunmaker liability has some reconciling to do.


No, because it's personal responsibility for what you personally do.

The best analogy here isn't a car, a knife, a bow, or anything like that: It's a printing press. Why? Because a printing press, just like a gun, is a legal item of commerce which is inextricably involved in the exercise of an explicit civil liberty. Like a gun, a printing press can be used to do harm, or to commit a crime, and everybody who manufacters or sells them is aware of that.

Shall we have strict liability for printing press manufacturers, in the case of libel and counterfeiting?

And like guns, if somebody started suing printing press manufacturers, (Or maybe today website authoring programs, I suppose.) to force them to implement all sorts of restrictions on their customers, or be driven into bankruptcy by the legal costs of successfully defending themselves in court... You'd know it was an attack on that civil liberty.
10.20.2005 8:56pm
George Turner (mail) (www):
The law was written in response to lawsuits filed with the intent of eliminating the manufacture and sale of all firearms. This was a legal strategy being pursued when gun control legislation favored by certain parties didn't get through the legislatures. The gun industry is not very large or highly profitable by manufacturing standards, and the nation's largest handgun manufacturer, Smith and Wesson, only sold $82 million worth of guns in 2004. If they cleared $5 million in profit I'd be surprised. The rest of the handgun makers sell even less than this.

The city of Chicago and several other liberal groups decided to file lawsuits to recover the "millions" in extra costs that stem from guns. The trouble is, just one or two of these lawsuits could easily bankrupt the gun industry, as could some bizarre jury verdict holding that the families of Bonnie &Clyde victims should get $150 million in pain &suffering compensation - from the gun companies. Since using negligence lawsuits was the publicly stated legal strategy for eliminating the manufacture and sale of all firearms, everywhere, why would Congress not act to stop this abuse?

It's trivially easy to sue an industry out of existence, and this by-and-large happened to American light aircraft manufacturers, who've been replaced by kit-aircraft builders, who operate with less legal exposure.

If the victims of a drunk drivers could successfully sue GM and win $5 billion a pop, we'd have no automotive industry in about a year.
10.20.2005 9:01pm
Andy Freeman (mail):
> because guns are designed to kill.

Kill what?

It can't be kill humans because:
(1) They're not very effective
(2) They vary too much in design and functionality to have a common design goal.

FWIW, we actually have stated design goals for certain military weapons which the above person would no doubt claim are "designed to kill". The actual goals happen to specifically exclude "kill" as a goal, his confidence notwithstanding. (Seriously injure is more useful than kill in many military situations, but you'd have to actually understand warfare to understand why.)
10.20.2005 9:18pm
Fabian:
>In addition, the bill is also a necessary and proper exercise >of the Congressional war power, because the civilian firearms >industry is now, and always has been, essential to the >production of firearms for the military.

The above may be the funniest thing I've ever read on this blog.
10.20.2005 9:44pm
Kevin Baker (mail) (www):
jgshapiro wrote:
As for Kopel's argument, how does innovation in the handgun/shotgun/rifle market assist gun manufacurers in making laser-guided automatic weapons? This may have been true in the 1800's, but I have hard time seeing how it makes any sense today. Military weaponry today is far more powerful and modern than non-military weaponry and gets even more so as each year passes.


By earning enough profits to pay for product development. And modern light weapons used by the military are no more powerful than light weapons used by civilians. I haven't seen any Special Forces soldiers using .375 Weatherby Magnums. Or S&W .500 Magnum revolvers, for that matter.

The M16/M4 that the military uses today is far less powerful than the M1 Garand used during WWII, except it's capable of 3-round "burst" fire, which the civilian AR-15 version is not. But there are hundreds of thousands of AR-15 rifles in civilian hands - and each one of them makes it less expensive for manufacturers to build the military versions. Economies of scale, you know.

The Barrett .50 caliber sniper rifle was designed and built for long range target shooters before it was adopted by the military. The McMillan bolt-action .50 used by Canadian snipers to effect the longest-range kill ever recorded is also sold to the general public. That keeps it from being prohibitively expensive. Again, economies of scale.

And those lasers? (And other high-tech optical gunsights like the EOTech I just bought for my AR?) They can make them in really large batches and sell them to the public. If the public market wasn't there, there would be insufficient justification for the research and development. Not enough profit if you're only able to sell to the military, and they control how many you build.

The civilian market is essential to the health of innovation. The government is far too small a market. If private citizens could by an F22 Raptor, they wouldn't cost $100 million a pop. Or we'd have something that cost half as much and was at least as good if not better.
10.20.2005 10:05pm
David Pittelli (mail) (www):
Mayor Bloomberg : “it is well-known that many of these guns are in criminal hands because some gun manufacturers turn a blind eye to dealers that sell guns to criminals.”

steveh2: “I would also hope to make one or two people see that anyone who professes to value "personal responsibility" while categorically rejecting gunmaker liability has some reconciling to do.”

1) Gun manufacturers are not (with rare exception) the same as gun retailers.

2) Gun retailing is a highly regulated business. It is the proper role of the state to discover that a retailer is “selling to criminals” and to pull the retailer’s license. Manufacturers have no way of discovering on their own which retailers’ guns are found used in crimes, because manufacturers do not perform crime scene recoveries. Manufacturers do have to cooperate with governmental efforts to track down serial numbers. The way the state informs the manufacturers that a retailer is not fit to sell guns is to pull the retailer’s license. It is the government which is negligent (i.e., “responsible”) if it allows an unfit retailer to keep its license. The manufacturer is not “personally responsible” if it sells guns to a retailer who is currently licensed by the government. How can it be otherwise?
10.20.2005 10:49pm
Kibbey (mail):
My understanding of American military firearms, at least since the Civil War, is pretty good. And I certainly agree with Kopel's first sentence (below), but the second sentence I can't reconcile with history.

"Without a robust civilian firearms industry, manufacturers who had to produce only for a military or police market would have to charge much higher prices, and would innovate far less. Almost every gun ever used by the U.S. military was originally developed for the civilian market."

What examples of civilian-first military-later weapons are Kopel talking about? Previous posters have mentioned specialized sniper rifles and shotguns, but just what else is there besides a fairly small number of substitute or special issue items (e.g. the Colt Model 1903 Officer's Pistol or the S&W Victory Revolver) which didn't come about as a direct product of either a US Arsenal or a competition to produce a weapon the military wanted first? The list of weapons the military had designed specifically for them covers almost all of the weapons of the military back to the Spanish American War. Off the top of my head:

Model 1894 and 1896 Krag Rifles and Carbines
Model 1903 Springfield Rifle
Model 1917 "Enfield" Rifle
M-1 "Garand" Rifle
M-1 Carbine
M2-"Grease Gun" Submachine gun
"Liberator" pistol
M-14 Rifle
M-16 Rifle

The Thompson SMG was first sold to the public, but only because WWI ended before the Army received the prototype models it had requested. It would be another 10 years before the Army, the intended customer, bought its first Thompsons.

Finally, essentially all the automatic weapons the miltary has purchased were made for their purposes alone. The list of light, medium, and heavy machine guns made by Browning, Vickers, Maxim, and the like were never made with the civilian market in mind.

Is the pre Civil-War era (particularly the Revolutionary era) what Kopel has in mind? In the age before mass production the distinction between military and civilian weapons is small. But in the industrial era, the vast majority of the guns the military has used have been either designed by them or for them for their primary use. The design of military weapons has certainly benefitted from the lessons learned by civilian gun manufacturers and shooters, but it is simply not true to state that most military guns were first developed for the civilian market.
10.20.2005 11:16pm
Gary and the Samoyeds (mail) (www):
I'm fine with the main content of the (soon to be) law. I have a question about the gun lock requirement.

If I were a gun dealer, would it be legal to sell the required lock with the gun and also have a "buy back" offer where the customer can turn in a lock (with a receipt from your store) and get his money back?
10.20.2005 11:17pm
David Pittelli (mail) (www):
jgshapiro: “The problem with this [defense against tyranny] argument today is that the federal government is armed with weapons far more powerful than the citizenry. Since almost no one is willing to allow Joe Sixpack to buy a tank, what is left of the core purpose of the second amendment? What are a bunch of people armed with handguns, shotguns and rifles going to do if and when they are confronted with M-16s, laser-guided smart bombs and tanks?”

It occasionally happens (e.g., Hama, Syria) that a tyrant will blow up a city to put down the people. Massed use of tanks and other heavy weapons is somewhat more common (Tiananmen, 1989; Moscow, 1991). But generally a tyrant does not want to so boldly and suddenly announce his tyranny, or to face a guerilla war, or to have to so flagrantly put one down, and any attempt to do so risks opposition from the tyrant’s own armed forces (and even assassination of the tyrant by either force). A tyrant would much prefer to use secret police forces, or at least semi-deniable paramilitary forces (e.g., Kosovo) to intimidate an unarmed populace by selective disappearances of dissidents and potential opponents. And even with concerted use of heavy forces, fully backed by all elements of the armed forces, victory against a lightly armed popular movement is far from assured.
10.20.2005 11:23pm
juris imprudent (mail):
"If a gun manufacturer is on notice that 95% of its sales to Sam's Gun Shoppe wind up on the black market and 55% of those are used in crimes"

What you are describing is not a breach of the manufacturer's duty to monitor the sales of a gun store, as Brady, et al would have it. The failure here is on the part of the BATF and state and local police to enforce the relevant laws.

Most gun manufacturers sell to federally licensed wholesalers who in turn sell to federally licensed retailers. Very few manufacturers sell directly to retailers and I don't know of ANY that sell directly to consumers.
10.21.2005 12:10am
juris imprudent (mail):
Steve-

"bear responsibility for the foreseeable and natural consequences of their actions"

You would apply this standard to gun manufacturers, but not auto manufacturers or brewers and distillers.

Tell me, how does a 300hp automobile NOT have foreseeable and natural consequences? What about liquor sold by the 5th? Let alone the combination of the two?
10.21.2005 12:26am
CJ:

Why is it necessarily "abusive" for a gun manufacturer to be liable for the foreseeable consequences of its actions, when it willingly sells weapons knowing that the sale of weapons will in fact cause hundreds or thousands of injuries or deaths each year?


Why is it abusive for a car manufacturer to be liable for the forseeable consequences of its actions, when it willingly sells vehicles knowing that the vehicles will in fact cause hundreds of thousands of injuries and deaths each year?
10.21.2005 9:55am
Matt Anderson (mail):
The analogy of not sueing GM because of Person A hits Person B is flawed. Before the car dealer can sell the vehicle to Person A, Person A must get insurance to cover the car and his liability in owning it. If the dealer does not see proof of insurance and still sells the car to Person A, he and GM (He is a licensed representative of GM) are very much liable for the car and can be sued by Person B's family. So the precedent should really be that if one wants to buy a gun and the gun industry doesn't want to be sued "abusively" then the gun industry should be pushing for legislation requiring mandatory liability insurance policies for every gun owner.

Yeah, I see the NRA signing up for that one...
10.21.2005 9:57am
Ken Arromdee (mail):
"I recognize that people don't buy guns with the intention of killing others. But they buy them to obtain the ABILITY to kill or harm others from distance. A gun only works for self-defense if the aggressor knows that the gun could kill or injure him."

The fallacy is that you're lumping together the desired effect (hurt aggressors) and the undesired effect (hurt innocents) into a single category (hurt others) and claiming that the gun is designed to perform the whole category.

A gun, as far as self-defense is concerned, is designed to hurt aggressors. It's not "designed to hurt people" any more than a car is "designed to use gasoline". Cars are not designed to use gasoline; they are designed to use gasoline for particular purposes. The same goes for guns. The fact that we can't make a gun that hurts aggressors without making it able to hurt people in general doesn't make the latter into a design goal, any more than the fact that we can't make a car that uses gas for transportation without making it able to use gas to run people over.
10.21.2005 10:50am
juris imprudent (mail):
Matt-

"...he and GM (He is a licensed representative of GM)..."

Wrong. Could be a used car dealer that has absolutely no relationship with GM. Even then, the analogy to the gun lawsuits in question fails: 1) someone sues ALL gun manufacturers because he was shot but doesn't know by what brand of gun, 2) cities sue ALL gun manufacturers for the cost of violence associated with guns - again without knowing who's guns are to blame. Thus the real analogy is, I get hit by a Toyota sold to X by Y but sue GM, Ford and Chrysler.
10.21.2005 11:18am
Andy Freeman (mail):
> Before the car dealer can sell the vehicle to Person A, Person A must get insurance to cover the car and his liability in owning it. If the dealer does not see proof of insurance and still sells the car to Person A, he and GM (He is a licensed representative of GM) are very much liable for the car and can be sued by Person B's family.

None of the above "facts" are true.

Insurance is required in SOME states as a condition of vehicle registration for use on public roads. It's quite legal to sell vehicles to someone who has no intention of doing that.

Also, dealers are not "licensed" representatives of GM.

It is interesting that folks pushing the "why can't we treat guns as strictly as we treat cars" don't seem to know anything about the laws in either case.

For example, no state places as many constraints on driver's licenses as they do on CCW permits. No state places as many constraints on car ownership as they do on gun ownership.
10.21.2005 11:48am
Andy Freeman (mail):
BTW - The car vs gun regulation summary above also applies at the federal level. For example, there are NO federal restrictions on car ownership. There are significant federal restrictions on gun ownership.
10.21.2005 11:50am
steveh2 (mail):
To CJ and Juris Imprudent: You both have asked why I draw a line between car makers and gun makers, given that injuries and death are a foreseeable consequence of both cars and guns. I've explained it before -- it's not a bright line, but my opinion is based on weighing various factors, such as degree of dangerousness, purpose of the item, utility apart from the dangerousness, etc.

The law has for a long time recognized that some actions are ultrahazardous, and thus appropriate for strict liability, and some are not, and are thus appropriate only for negligence liability (or higher). There is no bright line; courts make that determination based on weighing factors like the ones I outlined above and in a bunch of posts yesterday. That doesn't render illegitimate the principle of strict liability for ultrahazardous activities.

Remember, the lady with the blindfold and the sword is holding a scale, not a ruler. She's doing a balancing test.

Andy Freeman: Are you sure that Utah poses fewer restrictions on gun ownership and drivers licenses?

(FWIW, I'm not some big gun control freak. I don't oppose laws allowing possession of concealed weapons.)
10.21.2005 12:32pm
Tflan (mail):
Juet to reiterate the gun / car analaogy:

You do not need insurance to buy a car.
You do not need a drivers license to buy a car.
Minors can buy a car.
Felons can buy a car.
The insane can buy car.
Drug addicts can buy a car.
People under a restraining order can buy a car.

As to the last 5, they are prohibited from legally purchasing weapons.
Undoubtedly, if a drunk guy walked into a car dealership and they knowingly sold him a car and he later was involved in an accident, there would be dealer liability. However, the same scenario would also apply to gun dealers. The law does not change that kind of liability.
10.21.2005 12:57pm
Andy Freeman (mail):
> Andy Freeman: Are you sure that Utah poses fewer restrictions on gun ownership and drivers licenses?

I'm sure about what I actually wrote, which I'll repeat here.

>> For example, no state places as many constraints on driver's licenses as they do on CCW permits. No state places as many constraints on car ownership as they do on gun ownership.

Note - TWO comparisons.

I distinguish between ownership and public use because the laws do and they're different. CCWs are analogous to driver's licenses and ownership is analogous to ownership. Comparing analogous things....

Of course, the problems with guns and cars have different roots. The problems with cars are largely the result of unintentional acts. The problems with guns are almost completely the result of intentional acts.

To understand why that's relevant, consider whether competency training will weed out someone who wants to do bad things. (I've yet to see a driving competent use test that discriminates against someone who wants to drive a get away car or do drive-bys. Is there a competent use test that would discriminate against someone who wants to rob/kill people?) Yet the "why can't we regulate guns as strictly as we do cars" folk who believe that cars are more strictly regulated seem to believe that it must.
10.21.2005 1:10pm
Deoxy (mail):
The NRA and mot other gun groups would LOVE guns to be regulated "just like cars". That would mean the following:

- No background check.
- No license required (only required for use on public property - you can allow your 8-year-old to drive your car on your own property).
- No storage requirements.
- No lock requirements.
- No state tracking of private arms on private property (again, you can buy a car and use it only on private property, and you never have to have it inspected, tagged, or anything else).

Etc. Guns are FAR more regulated than cars, while cars kill FAR more people every year.

Other silly things mentioned above:

"TallDave, do you really think that if gun makers could somehow develop a gun that could only shoot in self-defense, they would do so?"

DUH!!!! They would probably MORE than double their market!! Do you know how many people (especially men whose wives freak out about guns) DON'T have guns in their house due to child concerns? (Even though, most years, more toddlers drown in buckets than children accidentally killed by guns.) If you are that ignorant about it, you have no business even commenting on this topic, and I mean that in the most serious and least insulting way possible.

"If a gun manufacturer is on notice that 95% of its sales to Sam's Gun Shoppe wind up on the black market and 55% of those are used in crimes"

Again, sheer and utter ignorance of actual facts. The government licenses gun sellers (another point where cars are less regulated) - if the government has certified that they may sell, then what's the problem? Isn't that THE POINT of certification? The gun SELLER is committing crimes (most likely - it's possible that there is some serious and sophisticated "straw" purchasing going on), but the government is still explicitly saying that they are allowed to sell guns.

"intended to be dangerous"

So, because it's INTENDED to be dangerous (that's a feature which people actively buy it for), it should be held to a higher standard, even though automobiles, which AREN'T supposed to be dangerous, kill more people. Run that by me again? The more dangerous object is less regulated because it's more dangerous by accident?

There is one other MAJOR problem with the reasoning regarding "made to harm": the people who would use guns intentionally to harm non-aggressors will, generally speaking, still be able to get guns. (Evidence after next point). In other words, this sort of "blame the producer" mentality and its effects almost exclusively affect exactly those who don't need to be affected while not affecting those it supposedly targets.

Evidence: guns are VERY old technology. The average machine shop can produce them; in the modern age, with automated machines capable of downloading plans from the internet, it is literally possible to produce a weapon that you don't know anything about. Even in countries with the most rigorous and draconian gun policies (Great Britain, Australia), guns still amazingly show up in criminal hands, a noticeable number of them made locally.

All "gun control" does is disarm the law-abiding.
10.21.2005 1:11pm
Andy Freeman (mail):
> my opinion is based on weighing various factors, such as degree of dangerousness, purpose of the item, utility apart from the dangerousness, etc.

We've focused on whether the weighing is informed/fact-based.

However, we've yet to see any discussion of the costs.

One likely result is a significant increase in the cost of guns. This would likely lead to a significant decrease in their number.

Suppose that this made no difference in the "societal cost". (The criminal market is small enough and has enough other sources that this is a likely result.) What did we get for the cost increase? Does this question matter to Steveh2?

What if the actual result was a small increase in violence? (While insisting that it can't, please tell us whether you're willing to put a "gun free zone" sign on your residence.) What then?
10.21.2005 1:20pm
Andy Freeman (mail):
> I don't oppose laws allowing possession of concealed weapons.

It turns out that gun-banners don't either. They just want it to be a political perk. Since the political class is relatively safe, I think that that's wrong.

However, I am willing to compromise. How about a "duty to protect" WITH liability. (Yup, a cabbie dies or gets robbed and the city pays.)

What? Police can't be everywhere that potential victims are? Hmm....
10.21.2005 1:29pm
Mr. Wizard:

If I were a gun dealer, would it be legal to sell the required lock with the gun and also have a "buy back" offer where the customer can turn in a lock (with a receipt from your store) and get his money back?


When this became the law in Massachusetts several years ago, savvy gun buyers would bring a lock of their own to the gun shop, and sell it to the dealer for a pittance before buying a new gun. Then they would buy the gun, the dealer would add a pittance, and sell them back their old lock.
10.21.2005 3:28pm
steveh2 (mail):
Andy Freeman: I'm not sure what point you were making with your 12:29 post, or whether it has anything to do with the points I've been making (or trying to make, anyway). But in case I wasn't clear, when I said I'm okay with allowing concealed weapons, I wasn't talking about letting only the police carry them. I was saying that I am okay with responsible private citizens having the right to carry them. (As long as private property owners have the right to exclude them from their property, which is a big fight here in Utah. In Utah, even churches had to fight for the right to NOT allow guns into their services.)

Regarding your post on the costs, I'm also confused about your question regarding "additional cost," when you are positing that there is no societal cost.

I am thinking that if the overall societal cost of gun injuries/violence remained the same, but gun makers were held strictly liable for injuries, then we as a society have come out ahead. Now, Person B's kid has not been deprived of his chance to go to college (or whatever, you get the point), and the costs of gun violence/injuries are focused more on those who either make profit from the guns or who choose to buy the guns.

If it could be proved that imposing strict liability on gun makers actually resulted in a net increase in crime/violence (taking into account accidental injuries as well), I would be fine with eliminating or not imposing strict liability.

But hey, if someone is going to disagree about strict liability because he feels that the societal consequences of such liability make it a bad idea, that's fine. I can handle losing an argument on that ground. I just don't like seeing the begging-the-question arguments like "Person A did the shooting, so he's the only one who could be responsible" arguments of the sort that started this thread.
10.21.2005 4:09pm
Andy Freeman (mail):
> Regarding your post on the costs, I'm also confused about your question regarding "additional cost," when you are positing that there is no societal cost.

The "no additional" was counting only violence. I'm pointing out that there are other costs, such as costs to gun owners. Note, for example, that my feeling safer is worth something even if I'm not actually safer. (This is the flip side to criminalizing assault, ie making someone feel unsafe.)

> I am thinking that if the overall societal cost of gun injuries/violence remained the same, but gun makers were held strictly liable for injuries, then we as a society have come out ahead.

That's not clear. A huge part of the basis for strict liability is that the costs will reduce some "bad thing". If, as stipulated, that reduction doesn't happen, that basis disappears.

I'm sure that Steveh2 is going to get around to responding to the errors in his original argument about the relationship between gun manufacturers and buyers. Surely his position actually does depend on the "facts" that he used to justify it....
10.21.2005 4:25pm
Brett Bellmore (mail):
Steve, you still have yet to come to grips with a basic point: Gun ownership is a civil liberty. This constrains what the government can do to impede it, quite independent of what any cost/benefit analysis might suggest is good policy.

If the government decided that widespread ownership of printing presses, or widespread membership in churches, had net societal costs, could it act to discourage freedom of the press, or of religion?

While it's true that the Constitution "does not enact Mr. Herbert Spencer's Social Statics", it's important to remember that it doesn't enact the works of Jeremy Bentham, either.
10.21.2005 4:36pm
Actual Owner & Shooter:
I've tried to read all the posts and except for a few of the later ones most people seem to be using the wrong arguments and don't really understand firearms or ownership and this new law.
Try going to ANY gun manufacture and buy a gun. You can't. Gun manufactures sell to a Federally licensed wholesale dealer who usually sells it to a Federally licensed retailer who then sells it to a consumer after they have passed a background check by the FBI. By the time you as an individual purchase a firearm it usually 2-4 steps removed from the manuafcture, and thats on a new purchase. Anyone involved in a straw purchase (illegally purchasing a firearm for someone else) is commiting a felony and faces possible jail time. If a dealer feels that someone is about to make a straw purchase it is their duty not to sell the gun. If it is found that firearms from a particular dealer are being used in crimes the they can have their FFL (Federal Firearms Licensed for those of you who have never purchased a gun)pulled and face criminal charges.
This new law will shield gun manufactures from civil lawsuits based solely on the fact that they manufacture a certain type of product. NOT FROM ANY CRIMINAL ACTIONS from wrongfully distributing a product. Why should an organization be able to be sued when their product is 4 times removed from them. To get away from the car gun debate lets use guns and drugs. If someone is prescribed a bottle of OXYCONTIN and their child steals it, snorts it and dies of an OD should they be able to sue the company for simply making the drug. After all the drug is sold to a wholesaler who sells to a retailer who then gives it to someone who has been prescribed the drug by a doctor.
10.21.2005 4:44pm
Deoxy (mail):
Strict liability for guns makes less sense than strict liability for cars. The people killed by cars are just as dead (and there are more of them), and in a a great many if not most cases, the insurance from the offending motorist is certainly not sufficient to send a kid to college, etc, etc (and that's without the problem of uninsured motorists, who most certainly exist).

For cars, we recognize that, in addition to these societal costs, there are societal benefits, such as the ability to travel to work, etc.

For guns, there are also societal BENEFITS. Estimates of deefensive guns uses range into the millions every year, often with no shot being fired. One of the best home defenses in the country is pumping a pump-action shotgun - the distinctive sound is an incredible deterrent, and thieves are known to flee the building at the sound, especially with a commanding male voice warning them to do so.

Actually, as has been brought up, the product with the most danger for the least societal benefit (or at least one of top ones) is swimming pools. What societal benefit do they produce? Their societal costs are quite significant, yet their benefit is... none. And we don't impose strict liability there, either.
10.21.2005 6:44pm
steveh2 (mail):
Gotta leave soon, then I doubt I'll be around on the weekend.

But to Andy Freeman: I'm not sure what errors I've made in my original argument about the relationship between gun manufacturers and buyers. I don't think I said anything about that relationship, and I don't think it's pertinent to my position. A few others have posted a hypothetical about manufacturers selling to someone they know or should know to be dangerous, but that wasn't something I was addressing.

To Brett Bellmore: It's far from established that gun ownership is a basic civil liberty; the whole "well-regulated militia" thing. But who knows, maybe a court would find that just as the First Amendment bars or limits strict liability for harm caused by defamatory statements, perhaps the Second Amendment does the same for gun manufacture.
10.21.2005 7:04pm
Duncan Frissell (mail):
The defendant reportedly hired an employee who was a crack addict who supported his habit by trading half-finished guns for drugs and cash. The lawsuit contends that the defendant hadn't done a background check on him before hiring him, and did not use metal detectors

I hate to mention it to the progressives posting on Volokh these days but some of us follow the common law doctrine of negligence under which an intervening criminal act breaks the chain of causality necessary to lead to liability for negligence. We don't buy left-wing innovations in this area.
10.21.2005 11:47pm
Duncan Frissell (mail):
Hans:

The courts have upheld the total ban on private possession of machine guns, and total ban on possession of guns by juveniles, as a proper exercise of Congress's commerce powers.


FYI, there is not a total ban on machine guns at the federal level (just by some states) and children can possess guns they just can't buy them directly. They can own them indirectly (for example by using fictitious entities). In practice, I can buy a gun for my son and tell him it's his and give it to him to keep in his room without violating the laws of most jurisdictions.
10.21.2005 11:56pm
Ryland (mail):
Kibby,
The Beretta Model F 9mm that the US Armed Forces currently use was a civilian handgun long before it became military. The military wanted something cheaper to fire than the old 1911A .45's. They required a little bit more in the line of safeties and drop resistance, but they are the same pistol. The navy also uses a standard off the shelf Mossberg(sp?) 12 guage shotgun.

If you'll also look at the history of the M-16, Colt designed it and then took years trying to sell it to the Army. From what I understand, the Army didn't want anything to do with small caliber rifles at the time.
10.23.2005 9:18am
Kibbey (mail):
Ryland,

I think you are just illustrating my point. Besides the Beretta pistol, combat/riot shotguns, and specialized sniper weapons, the vast majority of American military guns for the past century have been designed for the military, not the civilian market. Kopel's contrary claim has not been true since at least the Civil War, over a century ago.

Contrary to what you remember, the M-16's development was at the request of the military and was the result of years of Army/DOD research into the optimal rifle and cartridge combination for infantry use. The rifle went through teething pains in its early years, but the difficulties were quickly worked out. In fact, it just recently surpassed the venerable 1903 Springfield rifle as the longest serving front-line rifle in Army history. It is, without doubt, one of the most outstanding assault rifles ever developed.

The history of the M-16 is, in fact, the typical story of military interest preceeding and eventually sparking a civilian interest. In the early sixties (the time the M-16 was first being adopted by the military) there was almost no civilian interest in small caliber, moderately accurate, semi-automatic rifles. Target shooters of the day were still dedicated to bolt action .30 caliber rifles and the newly available .30 caliber semi-automatic Garand of WWII fame. Hunting with a .22 caliber rifle was, and remains, illegal for everything but small game (rabbits, squirrels, varmints), and there already existed ample inexpensive .22LR guns for small game at short range, and more powerful and very accurate guns/cartridge combinations (e.g. .220 Swift, .22-250) for tougher or longer range small game. There was simply no meaningful civilian market for the semi-auto .223 caliber AR-15/M-16 rifle when it was introduced.

The civilian interest in the AR-15/M-16 did grow, however, and today they are among the most popular "assault-style" rifles. The cartridge they introduced, the 5.54 NATO or .223 Remingtion, is among the most accurate cartridges in the world. Civilian and military gunsmiths and armorers have figured out how to optimize the rifle to produce outstanding accuracy, and the "black rifle" is a common winner in "highpower" target competitions. There currently is a large aftermarket in parts, accessories, and supplies for the AR-15/M-16 which allow it to be configured for target, hunting, personal defence, and law enforcement uses. But all of this popularity has come long after the original military requirements were proposed and Armalite given the go-ahead to develop what would become the M-16 for the US military. This history is the norm for most military infantry weapons, not the other way around.
10.24.2005 9:57pm