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Accusing a Group of Buying Legislation:

Slate runs a piece critical of the new bill preempting various lawsuits against gun manufacturers and retailers. The title of the piece is "Fire Sale," and the subtitle is "How the gun industry bought itself immunity from the rule of law." The piece ends with "Other industries will surely recognize the utility of such legislation and will seek similar treatment when they are sued. Doubtless they will make some steep campaign donations to get it. And why not, since the rule of law appears to be suddenly up for sale?"

But — unless I've missed something big — the piece never points to gun manufacturers buying anything. There's nothing said about any supposed contributions by gun manufacturers to legislators. There's nothing about any supposed bribes. The author obviously disagrees with the substance of the law, but he doesn't give any evidence that there was something corrupt about the process through which it was enacted. (By the way, see here for a brief note on the gun industry's general income and political giving — it turns out that both were low as industries go, at least as of 2000.)

Where then is the justification for the article's title, or the closing two sentences?

There is much else that I disagree with in the article. The gun industry has been exposed to novel theories of legal liability, which don't apply to other industries: If I'm hit by a 20-year-old driver who was drunk on Coors and driving a Ford Mustang, I wouldn't be able to hold the alcohol manufacturer or car manufacturer liable — even if the manufacturer sold the Coors to a liquor store in a college town (so that the manufacturer must surely have known that some fraction of its products would end up in the hands of the underaged), even if the manufacturer knew that the liquor store had been suspected in past unlawful sales (but still was allowed by the state to sell beer), and even if I can persuade the jury that car manufacturers shouldn't be able to sell really fast and powerful cars, especially to 20-year-olds, who are notoriously prone to speeding. Yet many of the gun manufacturer lawsuits were very similar to these lawsuits, and Congress was right to preempt them. Likewise, contrary to what the piece suggests, many other industries have been the subjects of industry-specific preemption laws: The Employee Retirement Income Security Act has an even broader preemption provision; Geier v. Honda Motor Co. illustrates federal preemption of certain state tort law claims against car manufacturers; there are other examples. (For more substantive points on this, see here, here, here, and here.) But for now, I thought I'd focus on the "buying" accusation.

Mac (mail):
Amen. But do facts ever interfere with prejudice?
11.9.2005 3:13pm
BruceM (mail) (www):
I agree the lawsuits should not take place, but where in the Constitution does it give Congress the right to preempt state lawsuits? The Commerce clause, like with all questions of congressional origins of power, will be the likely answer, but I vehemently disagree.

Good idea, but unconstitutional.
11.9.2005 3:16pm
BossPup (mail):
Umm, I'm going to go with the Supremacy clause, actually.
11.9.2005 3:23pm
Markusha:
The analogy with cars and liquor is flawed, I think. While the primary purpose of guns is to shoot (and kill or wound, presumably), the primary purposes of cars and liquor don't involve harming anyone else. Therefore, the situations are distnguishable. In any case, blanket immunities are rarely useful; usually, the jury system with its multiple layers of review (trial judge, appellate court, supreme court) has more than enough safeguards to ensure fair outcome.
While the author may not have pointed to specific instances of lobbing, noone needs any convincing that the gun industry has a huge clout over lawmakers. Just recall how similar bill was voted down last year because the gun lobby did not like certain amendments attached to it. Virtually all Senators previously voting for the bill suddenly switched their votes after the NRA declared its opposition.
Current Congress is really beholden to special interests. I am not saying Democratic-controlled Congresses were ideal, but it's incredible how much clout various lobbies (big pharma, banks, NRA) have over this Congress.
11.9.2005 3:24pm
frankcross (mail):
I don't think this has anything to do with the gun industry, I thought it was the NRA pushing it.

But your tort analysis is a little off, I think. The alcohol and fastfood industries have both been subjected to litigation on comparable negligent marketing theories. They involve negligent selling to youths while the gun cases involve negligent selling to criminals, but the basic theory is the same.
11.9.2005 3:26pm
Hank:
I strongly oppose the new law, but there is not the slightest doubt that it falls within the Congress's commerce power. The Supreme Court upheld a tort reform law as far back as Mondou v. New York, N.H. &H.R. Co., 223 U.S. 1, 49 (1912), and did so more recently in Duke Power v. Carolina Environmental Study Group, 438 U.S. 59, 88, n.32 (1978). In the past decade Congress has enacted numerous tort reform provisions, and none has been struck down. E.g., the Bill Emerson Good Samaritan Food Donation Act, the Volunteer Protection Act of 1997, the Y2K Act, the Paul D. Coverdell Teacher Protection Act of 2001, the SAFETY Act.
11.9.2005 3:27pm
anonymous coward:
"...the jury system with its multiple layers of review (trial judge, appellate court, supreme court) has more than enough safeguards to ensure fair outcome."

But there's always those pesky litigation costs, aren't there? (Not that I'm entirely convinced this legislation is a good thing.)
11.9.2005 3:29pm
Bill (mail):
How possible is it to come by evidence that a particular legislator's vote was bought? Surely the dontations of gun manufacturers to candidates or issue groups could be a matter of public record, but to what extent is it actually? Could we know how much was spent on lobbying? Do we? Would even this be sufficient evidence to support Slate's assertion? Even if not, the assertion could still be true and important.

In general, companies are often free to not disclose information that is relevant to the public. And they often refuse, dispite public pressure. Consider the example of a film studio's unwillingness to reveal how many billboards for the new movie "Get Rich or Die Trying" contained a photo of 50-Cent holding a gun. Critics of that ad campaign tried to get that info, as well as info about how many billboards were near schools and how many were removed as the result of interest group pressure on the studio. This info would have been useful to guaging the effectiveness of their efforts and for publicizing important facts about the highly controversial ad campaign for the film.

It's necessary to hold companies responsible for how much info they make available about these and other political activities. Its not that I disagree that Slate could have provided more evidence. But they also could have been completely accurate but not had access to the info to prove their point.
11.9.2005 3:34pm
Dave G:
Its not that I disagree that Slate could have provided more evidence.

Or, indeed, any evidence.


But they also could have been completely accurate but not had access to the info to prove their point.


Sure, in which case their point doesn't belong in a news-magazine, even in an opinion piece.
11.9.2005 3:42pm
Clayton E. Cramer (mail) (www):

The analogy with cars and liquor is flawed, I think. While the primary purpose of guns is to shoot (and kill or wound, presumably), the primary purposes of cars and liquor don't involve harming anyone else. Therefore, the situations are distnguishable.
You are correct. The right of the people to keep and bear arms is specifically protected by the Second Amendment. Cars and liquor have no comparable constitutional protection, because transportation and intoxication, while perhaps useful in some contexts, do not have a direct relationship to protecting the Republic from tyranny.

There are many times that killing someone, or making a realistic threat of such, is not only legal, but praiseworthy.
11.9.2005 3:49pm
FXKLM:
I don't understand objecting to this law on the grounds that it's usurping the power of the jury. It's the role of the jury to apply facts to determine liability in specific cases, but there's nothing wrong with the legislature setting the substantive law. That's what a legislature is supposed to do. This isn't like the Shiavo incident where congress intervened in a specific case. You can argue that congress had no authority to act because the matter should be left to state legislatures, but arguing that it should have been left to judges and juries makes no sense.
11.9.2005 3:52pm
Clayton E. Cramer (mail) (www):

In any case, blanket immunities are rarely useful; usually, the jury system with its multiple layers of review (trial judge, appellate court, supreme court) has more than enough safeguards to ensure fair outcome.
I want you to imagine how differently you would react if a majority of judges in the U.S. strongly disapproved of abortion, and every abortion doctor in the U.S. were being sued for causing the wrongful deaths of embryos and fetuses. Now, it might well be the case that
the courts would eventually find for the abortion doctors--but do you suppose that the cost of defending all these lawsuits might have some impact on what is, after all, a lawful business?
11.9.2005 3:53pm
Buying vs. Bad Policy:
Agreed, "buying" is a bad way to conceptualize what happened. But who cares? The policy is what's disgraceful. (By the way, Professor, you understand, don't you, that there's a difference between federal preemption of state lawsuits and wholesale legal immunity in state and federal court? The latter, not the former, is what was at stake in the immunity bill.) If the lawsuits were so weak, why couldn't the gun industry do what every other industry does: fight them on the merits? And why are guns shielded from federal consumer regulation, unlike nearly every other product in the marketplace?

The reality is that the NRA exercises undue influence on Congress and the federal government as currently constituted. This bill was a power grab: a naked effort by the gun industry to extend its influence at the federal level to state and local governments (such as Chicago) where the gun industry is not so powerful. I don't blame the NRA for taking what it could get, but I do wonder about academics who profess to believe in federalism singing the virtues of such legislation.
11.9.2005 3:53pm
BruceM (mail) (www):
The Supremacy Clause is not a grant of legislative power, but rather a truism.

I disagree that it falls within the commerce clause, and citing supreme court cases on the commerce clause's application won't convince me otherwise. It's like citing wickard v. filburn to convince me Raich was properly decided. Yeh, well, so what. Bad precedent makes bad law.
11.9.2005 3:55pm
Clayton E. Cramer (mail) (www):

I don't understand objecting to this law on the grounds that it's usurping the power of the jury. It's the role of the jury to apply facts to determine liability in specific cases, but there's nothing wrong with the legislature setting the substantive law.
And the courts almost everywhere have sided with the gun manufacturers on these "negligent marketing" suits. At this point, the people filing these suits know that they aren't going to win; they are just making it very, very expensive for gun makers and wholesalers to stay in business--and that is their stated goal--to achieve judicially what they can't accomplish by persuading the masses.


You can argue that congress had no authority to act because the matter should be left to state legislatures, but arguing that it should have been left to judges and juries makes no sense.
Many states have passed similar measures; the problem is that many of these suits take place in federal courts because the guns are moving in interstate commerce. Hence the need for a federal statute.
11.9.2005 3:56pm
BossPup (mail):
True, my Supremacy clause comment was a little flippant. But it is going to fall within the modern definition of the commerce clause. Like it or not, the commerce clause post-Raich is exceedingly broad and encompasses such an action. You might not like that broad reading of the commerce clause (neither do I) but it is what it is, not what we wish it to be.
11.9.2005 3:59pm
mikem (mail):
At least the editor had the decency to point out that the author is a hired gun himself.
11.9.2005 3:59pm
Clayton E. Cramer (mail) (www):

By the way, Professor, you understand, don't you, that there's a difference between federal preemption of state lawsuits and wholesale legal immunity in state and federal court? The latter, not the former, is what was at stake in the immunity bill.)
The gun banners wouldn't have accepted anything that blocked their attempt at banning guns by litigation.


If the lawsuits were so weak, why couldn't the gun industry do what every other industry does: fight them on the merits?
Because the gun industry, contrary to popular opinion, is not terribly rich. It is a small industry--and in some cases, the lawyer suing the gun maker has deeper pockets than the gun maker.

You do understand, I presume, that there are lawsuits so expensive to fight that you can't afford to win?


And why are guns shielded from federal consumer regulation, unlike nearly every other product in the marketplace?
Because Congress knew that the sort of people that would end up at the CPSC would have come up with a regulatory scheme that effectively banned handguns.
11.9.2005 4:00pm
James of England:
Markusha,

Surely the primary purpose of liquor is to intoxicate the user and turn him into the kind of obnoxious citizen who will cause harm to his neighbours and to the state, be this by being loud, driving badly, becoming easily aroused to violence, becoming sexually aggressive, making poor decisions, vomiting, or by losing dexterity and failing to maintain balance. Sometimes this purpose will be no more than a nuisance, sometimes it will result in one or more lives ended or ruined. This analysis does not even go down the route of dealing with addiction, nor with the long term health effects, nor with the emotional issues of domestic violence and so on.

For some people there may be an aesthetic appeal to the liquor, just as many people collect more guns than they could possibly use to defend themselves or to shoot innocent children/ puppies.

There is a considerable benefit to the state derived from the possession of firearms. There is none derived from the possession of alchohol. One might even suggest that the primary purpose of the lawful use of firearms was to defend the person and possibly the homestead, rather than the aforementioned butchery of puppies.

Regarding the other portion of your post, many Senators recognise the tremendous expertise in firearms law that the NRA has amassed. Most Senators do not have a comparable grasp of the issues involved. That the advice of an acknowledged expert in the field was persuasive should speak highly of the Senators, not suggest that they are corrupt. This is particularly the case given that the NRA was likely a significant intended beneficiary of the legislation. It is rarely wise policy to pass laws for the benefit of people who really don't want those laws passed.
11.9.2005 4:04pm
Markusha:
Clayton,

What is to prevent anyone from suing abortion providers? As I understand, Congress did not pass any law granting them immunity from wrongful death lawsuits. Now, I think that these lawsuits would be laughable and would be dismissed (probably because fetus is not a child for the purposes of the murder laws, although maybe in some states, it is). But my point is that there's no law which would prevent these suits. I won't like them, but I won't insist on blanket immunity. Also, another distinction is that in abortion cases, a right to abortion is protected in the Constitution (at least, as currently interpreted by the SCOTUS). The second amendment is much less clear in terms of what it actually allows. You would not disagree that there's much more debate about the scope of the 2nd amendment than about the scope of Roe/Casey, would you? I mean, at least it's clear that abortions within the first few weeks of pregnancy by adult women are protected.
As far as your first post, yes, the Constitution protects the right to bear arms. What is the meaning of the amendment is very unclear. Nobody argues that in some cases, threatening to use arms and even using arms is justified. Often times, it's not, however. That's why any blanket immunity to gun manufacturers is wrong: given the immunity, they will be less likely to invest in sensible measures such as gun locks, scrutiny of dealers, etc. I know that there are many controls imposed on gun manufacturers already, but granting an absolute immunity removes many of the market incentives to make products safer.
11.9.2005 4:09pm
Markusha:
Clayton,

What is to prevent anyone from suing abortion providers? As I understand, Congress did not pass any law granting them immunity from wrongful death lawsuits. Now, I think that these lawsuits would be laughable and would be dismissed (probably because fetus is not a child for the purposes of the murder laws, although maybe in some states, it is). But my point is that there's no law which would prevent these suits. I won't like them, but I won't insist on blanket immunity. Also, another distinction is that in abortion cases, a right to abortion is protected in the Constitution (at least, as currently interpreted by the SCOTUS). The second amendment is much less clear in terms of what it actually allows. You would not disagree that there's much more debate about the scope of the 2nd amendment than about the scope of Roe/Casey, would you? I mean, at least it's clear that abortions within the first few weeks of pregnancy by adult women are protected.
As far as your first post, yes, the Constitution protects the right to bear arms. What is the meaning of the amendment is very unclear. Nobody argues that in some cases, threatening to use arms and even using arms is justified. Often times, it's not, however. That's why any blanket immunity to gun manufacturers is wrong: given the immunity, they will be less likely to invest in sensible measures such as gun locks, scrutiny of dealers, etc. I know that there are many controls imposed on gun manufacturers already, but granting an absolute immunity removes many of the market incentives to make products safer.
11.9.2005 4:09pm
Kazinski:
"Buying vs Bad Policy" seems to be mixed up about the difference between the "Gun Industry" and the NRA. The Gun Industry is a small and not very powerful commercial interest. Their clout as compared to the auto, oil, banking and insurance industries is insignificant. The NRA on the other hand is a extremly powerful grassroots organization because it made up of a voluntary group of citizens that cares deeply about a single issue. They are willing to contribute scads of money, vote, and lobby their fellow citizens at a grassroots level to protect their constitutional right to keep and bear arms.

One other thing, the gun industry was not conferred "wholesale legal immunity" by the bill. If a gun manufacturer produces a defective product they can still be sued under product liability laws. But if there is nothing defective with their product, then they can't be sued for any accidental or intentional misuse. Just like any other product produced by any other industry.
11.9.2005 4:10pm
frankcross (mail):
I have heard it asserted many, many times that this litigation is costing gun manufacturers such enormous sums that it threatens to bankrupt them. I have yet to see those making the assertions present any evidence of this. Is there any?
11.9.2005 4:12pm
Markusha:
Oops, sorry for double posting!
11.9.2005 4:15pm
NickM (mail) (www):
It's nice to see that the defenses of the Slate article elide over the distinction between the "gun industry" and the "gun lobby". It's not the manufacturers of firearms who made large contributions, it's the multitude of small contributions to politicians endorsed by a membership organization with hundreds of thousands (possibly even over a million) of dues-paying members - and the millions of voters who pay attention to which politicians that membership organization supports and opposes. The NRA has political power because for millions of American voters, government protection of their right to keep and bear arms. and support of traditional uses of those arms (e.g., hunting) is a very important issue.

As for the commenter who asked about to what extent the political contributions of companies are public record, check out FEC Info. It's all public record, and has been for over 30 years.

Nick
11.9.2005 4:21pm
Riskable (mail) (www):
"There's a lot of money in elections, but it's there very indirectly. And we don't have a free-market system. We've got a sort of black-market system going on and a gray market where, because we're in a commercial society, money is being spent to influence elections. But because of the existing regulations, it's being spent in very indirect and circuitous ways."
- Trevor Potter, former Federal Election Commissioner (National Public Radio, Morning Edition, 3/11/1996)

In my humble opinion, *only* individuals should be allowed to donate to campaigns. Special interests and corporations should not be able to influence legislation so easily. I also think we should ban political ads. Their purpose is dubious at best.
11.9.2005 4:26pm
Sincere:
Clayton: you make a good point about the need for Fed legislation since suits are brought in Fed Ct. under IComm.

Question to everyone: Congress can confer jurisdiction on an Article III court, no? Can Congress take an item off the table through legislation? In other words, can Congress remove all suits against gun manufacturers from Art. III courts, despite their IComm movement? Or, could they give the Supreme Court plenary authority to hear such cases (thereby effectively filtering suits out of Fed Cts. through the cert process)?
11.9.2005 4:43pm
Clayton E. Cramer (mail) (www):

What is to prevent anyone from suing abortion providers? As I understand, Congress did not pass any law granting them immunity from wrongful death lawsuits. Now, I think that these lawsuits would be laughable and would be dismissed (probably because fetus is not a child for the purposes of the murder laws, although maybe in some states, it is). But my point is that there's no law which would prevent these suits.
Judges have the authority to sanction attorneys for frivolous lawsuits. They very seldom do so, and there is at least a legitimate argument that you don't want to discourage suits for which there is at least some vaguely plausible argument.

If pro-life lawyers filed suits of the type that I am hypothesizing--which are about as far out there as the "negligent marketing" suits--judges, being overwhelmingly liberal, would definitely see that the pro-life lawyers ended up paying the defendant's legal fees. Do you suppose that they might be disbarred as well?


As far as your first post, yes, the Constitution protects the right to bear arms. What is the meaning of the amendment is very unclear.
It hasn't been unclear to the courts until the 20th century. Nineteenth century decisions are (with one exception) very clear that it protects an individual right.

Nobody argues that in some cases, threatening to use arms and even using arms is justified.
You need to talk to gun control advocates. Many that I have talked to assert that a victim who uses a gun in self-defense is morally indistinguishable from a murderer.
Often times, it's not, however. That's why any blanket immunity to gun manufacturers is wrong: given the immunity, they will be less likely to invest in sensible measures such as gun locks, scrutiny of dealers, etc. I know that there are many controls imposed on gun manufacturers already, but granting an absolute immunity removes many of the market incentives to make products safer.
1. These lawsuits aren't "market incentives."

2. The negligent marketing lawsuits demanded that manufacturers perform functions that the BATF is supposed to be doing--checking for unlawful transfers by dealers. Furthermore, a manufacturer has no way to determine if a particular dealer is violating the law by engaging in strawman sales--that information is only available to BATF, who will not provide it to the manufacturers (and rightly so, if they are conducting a criminal investigation).

3. The recent statute passed by Congress mandated inclusion of trigger locks, and this received no criticism from the industry because they have been doing this for some time, anyway.

You don't seem to get it. The lawyers filing these suits have stated that their goal is to shut down the gun industry, not to make it safer. You might try reading Outgunned, written by one of their lawyers--and a book that shows an astonishing ignorance of existing federal gun control law. He states that the goal was to make lawyers the fourth branch of the government, banning handguns because the legislative branch isn't prepared to do so.
11.9.2005 4:48pm
Clayton E. Cramer (mail) (www):

Question to everyone: Congress can confer jurisdiction on an Article III court, no? Can Congress take an item off the table through legislation?
I can't remember the case right now, but I believe that Congress has taken authority away from federal courts before in some type of labor union dispute (the courts hadn't taken the union side of things).
11.9.2005 4:57pm
Bisch:
Re: Markusha,
"...noone needs any convincing that the gun industry has a huge clout over lawmakers."
I'd say evidently some people do need convincing. That was supposed to be the point of the article.

And do Roe and Casey protect having abortions or performing abortions? Or both? Because if you're going to argue that the right to "bear arms" doesn't protect the right to manufacture/sell arms at some point you'll have to deal with it on the abortion end, too.
11.9.2005 4:57pm
Cornellian (mail):
I actually don't have a problem with the assertion that industries make campaign donations in order to secure legislation favorable to their interests. Surely that's obviously true of how Washington works in general, even if the specific effect is hard to trace in individual cases. Businesses aren't making donations because they're concerned about our policy on human rights in Zimbabwe.

However, having said that, plaintiff trial attorneys also make campaign donations in the hopes of securing legislation favorable to their interests, so would that make every piece of legislation that increased liability for gun manufacturers immediately suspect? Presumably the author of the article wouldn't think so.

Given transparency of campaign donations, why not just evaluate the legislation on its merits, regardless of which entity donated what sum to which politician?
11.9.2005 4:59pm
labrat:
link

...is an article detailing how Florida legislators are proposing a law backed (sponsored? suggested?) by the NRA that would allow felony charges to be filed against private individuals or companies that attempt to enforce gun restriction regulations against locked vehicles, including contractors on your own property.

Could the article be borne out of frustration due to the proposed aggressive intrusions of individuals pushing their perceived constitutional rights into the personal space of other individuals and businesses? Would this be akin to passing a law saying I have a right to sit on my neighbors yard and plant burning crosses or huge signs prostelysizing gay marriage punishable by a felony conviction? In other words, does the resentment expressed in the article arise out of the apparent favored status of the 2nd amendment over all others?
11.9.2005 4:59pm
labrat:
and by "article" in the second paragraph Im referring to the original one in Slate
11.9.2005 5:04pm
Markusha:

If pro-life lawyers filed suits of the type that I am hypothesizing--which are about as far out there as the "negligent marketing" suits--judges, being overwhelmingly liberal, would definitely see that the pro-life lawyers ended up paying the defendant's legal fees. Do you suppose that they might be disbarred as well?


Not true. Judges are not "overwhelmingly liberal" by any stretch of imagination. While it's hard to compile reliable data on the state level, most of federal judges were appointed by Republican presidents, hardly liberals. Care to provide any evidence for the "overwhelmingly liberal" statement?


It hasn't been unclear to the courts until the 20th century. Nineteenth century decisions are (with one exception) very clear that it protects an individual right.


So what? We don't live in the nineteenth century. The nineteenth century's decisions were "very clear" that Plessy v Fergusson was a good law. It has no bearing on the argument how the courts in the nineteenth century understood the second amendment.


You need to talk to gun control advocates. Many that I have talked to assert that a victim who uses a gun in self-defense is morally indistinguishable from a murderer.


Please don't send me to talk to anybody. I am defending my own position, not somebody else's. There are extremes on both sides of the debate


These lawsuits aren't "market incentives."


Just because you say so?
As if your statement is self-evidently clear. Any evidence? If there's a credible threat of a lawsuit for negligence or whatever, there's a market incentive to reduce the negligence.

You don't seem to get it. The lawyers filing these suits have stated that their goal is to shut down the gun industry, not to make it safer. You might try reading Outgunned, written by one of their lawyers--and a book that shows an astonishing ignorance of existing federal gun control law. He states that the goal was to make lawyers the fourth branch of the government, banning handguns because the legislative branch isn't prepared to do so


As I said, there are extremes on both sides. My point was that blanket immunity is like fighting sparrows with a gun: using a blanket immunity is a very disproportionate remedy to whatever ills, if any, of gun manufacturers' litigation.
11.9.2005 5:05pm
anonymous coward:
"And do Roe and Casey protect having abortions or performing abortions?"

You mean, does it violate Roe/Casey for private citizens to attempt to make abortion expensive and hard-to-obtain by hitting abortion clinics with high litigation costs? I'm guessing not.
11.9.2005 5:06pm
frankcross (mail):

judges, being overwhelmingly liberal,


This comment is downright humorous, at least to a person living in Texas.

Clayton Cramer, you're making a lot of assertions. And they may be accurate. But would it be asking too much to expect you to occasionally back them up?
11.9.2005 5:14pm
Monkberrymoon (mail):
Re "market incentives"

I, for one, thought your use of the term was meant to be wittily ironic. Of course a lawsuit isn't a market incentive. It may persuade (or coerce) a business into doing something, but it certainly has nothing to do with the market. A market incentive exists because there is market-wide demand for it (e.g., if research indicates that people will buy more guns with gun locks) -- not because some judge (or jury) decrees it to be so.
11.9.2005 5:18pm
JonC:
Frank Cross:

I have heard it asserted many, many times that this litigation is costing gun manufacturers such enormous sums that it threatens to bankrupt them. I have yet to see those making the assertions present any evidence of this. Is there any?


Walter K. Olson, in his 2003 book "Overlawyered" (pp.118-122) cites several examples of gun companies filing for bankruptcy or being severely burdened with legal fees as a result of lawsuits. Lorcin of Southern California had to shut down as a result of legal fees. Freedom Arms of Wyoming laid off 12 of its 35 empolyees after a year's worth of fees came to over $200K. SIG, a Swiss gunmaker, had to sell its US unit. After $3 million in legal bills in a single year, Colt had to fire a big chunk of its workforce and discontinued most of its civilian handgun lines.
11.9.2005 5:19pm
Gordon (mail):
Of course gun manufacturers don't have to buy political influence with generous campaign contributions and lobbying allownaces.

They have a determined army of "gun nuts" promoting their agenda anyway. :)

What the cigarette industry wouldn't give for an army of angry smokers demanding cheap smokes and the right to watch cigarette commercials on TV!
11.9.2005 5:32pm
Karl Maher (www):
Just to fire the coup de grace into this argument:

In the 2004 election cycle "gun rights" political action committees contributed $1,282,774, ranking the industry 78th of 122 tracked by the Center for Responsive Politics. Nearly all of the money came from the NRA or Gun Owners of America, both membership organizations.

So if the gun manufacturers do politics, they do it through the NRA, would wouldn't seem particularly wise if you're out to buy influence.
11.9.2005 5:33pm
Jeff Dege (mail):

noone needs any convincing that the gun industry has a huge clout over lawmakers


The NRA doesn't represent the gun industry, it represents gun owners.

And it doesn't have clout because of the massive amounts of money that the gun industry doesn't have and isn't spending, but because of the massive amounts of individual time and effort that the tens of millions of gun owners are putting in to make sure their representatives hear their voices.
11.9.2005 5:36pm
Markusha:
Re: market incentives.

Of course, lawsuits are not "market incentives" in the sense that a lawsuit is not a market. I simply meant that a possibility of a lawsuit creates an incentive to behave non-negligently.
11.9.2005 5:37pm
Markusha:
Even if the NRA is technically a gun owners' association, I would bet a thousand bucks that it agrees on 99.9% with the gun manufacturers. And it's not "tens of millions", I think it's more like 2 millions, but I am not sure.
And why would gun owners be pushing for a legislation which would outlaw almost all lawsuits against manufacturers? Do you seriously think that they were afraid that the gun manufacturers will go out of business?
In reality, NRA and gun lobby pursue the same goals. Of course, the vast majority of NRA members are ordinary folks who would have no problem with neither a gun inndustry subject to the same laws as other industries nor with prohibition on assault weapons (I am not going to argue about the Assault Weapons ban which had tons of loopholes and probably was only marginally useful. My point is simply that most NRA members would have no problem with sensible gun control laws).
11.9.2005 5:45pm
JRDickens:
I always thought holding gun manufacturers negligent for gun deaths was crazy. Seems to me that if you point a gun at someone, pull the trigger, and cause their death that the gun worked exactly as it was intended to.
11.9.2005 5:46pm
frankcross (mail):
Thanks, Jon C.
But it doesn't appear that Lorcin shut down, looks like it filed for Chapter 11 reorganization.
And I don't understand the "had to sell its US unit" rationale re legal costs; it found a buyer.
The Colt case seems to have more of a record. It documents $3 million in fees (of which two-thirds were covered by insurance). Even in this case, Guns magazine and other sources say it left the market for some guns for business reasons unrelated to litigation.

I concede some evidence of litigation costs here, but the bankruptcy claims seem awfully exaggerated.
11.9.2005 5:49pm
William Spieler (mail) (www):
I don't see how this doesn't fall under the Commerce Clause, even ignoring the Wickard line of cases. On its face, it seems that tort actions such as these can reach sales that take place outside a given state, and due to this affect that one state's courts will have on other states' sales of guns, Congress is properly stepping in.

Of course, the other part of the Constitution that makes this valid is the Privileges and Immunities Clause of the Fourteenth, the Second Amendment, and Section 5 of the Fourteenth.
11.9.2005 5:59pm
Steve:
I am a pretty doctrinaire liberal, but I happen to think the gun law was good policy, and I think the good Professor was 100% right in this post.

If the NRA enjoys a disproportionate amount of lobbying clout compared to other interest groups, I'd imagine it is because they have substantial influence over the votes of an awful lot of Americans who believe strongly in gun ownership. That kinda seems like a legitimate form of democracy to me.

The abortion analogy was a good one. If someone brings a frivolous lawsuit against an abortion provider, yes, let the court dismiss it. But if there is a concerted movement to file such lawsuits, and if the prospect of financial harm to abortion providers is significant, I would view it as entirely appropriate for Congress to enact a legislative solution.
11.9.2005 6:01pm
Jeff Dege (mail):

I have heard it asserted many, many times that this litigation is costing gun manufacturers such enormous sums that it threatens to bankrupt them. I have yet to see those making the assertions present any evidence of this. Is there any?


Bryco.

Charter Arms.

Davis Industries.

Professional Ordnance.
11.9.2005 6:04pm
roy (mail) (www):
It's worth correcting the idea of "blanket immunity" and the common falsehood repeated in the article:

The victim of the D.C. snipers who recently recovered $2 million from a dealer whose negligence allowed 17-year-old Lee Malvo to obtain an assault rifle would be out of luck.


The law is "limited immunity", so there's certain activity for which the gun industry is not immune to lawsuits. They are not immune to "an action brought against a seller for negligent entrustment or negligence per se", or "any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept" as in the Malvo case.

There are other exceptions as well, behaviors for which they can still be sued. If they fail to comply with laws and regulations, they can be sued for the consequences.

This is thoroughly (and repeatedly) discussed over at Alphecca. That link talks about an older version of the bill, but the major details are still correct. The text of the law as passed (I think) is here.

So when you talk about "negligence" in the technical sense, remember, they can still be sued for that.
11.9.2005 6:05pm
TJ (mail):
Markusha,

As I said, there are extremes on both sides. My point was that blanket immunity is like fighting sparrows with a gun: using a blanket immunity is a very disproportionate remedy to whatever ills, if any, of gun manufacturers' litigation.

This another way of saying that (1) blanket liability is like using a bazooka where a .22 will do and/or (2) blanket liability is treating a symptom and not a problem- meaningful reform would likely involve reassignment of costs to bringers of meritless claims?
11.9.2005 6:06pm
Clayton E. Cramer (mail) (www):

In other words, does the resentment expressed in the article arise out of the apparent favored status of the 2nd amendment over all others?
Favored status? What are you talking about? If companies made it unlawful to have union literature in the trunk of your car in their parking lot, the ACLU would file suit and get a federal judge to rule the statute files freedom of speech and freedom of the press (even though neither exactly fits into this situation).

I do not approve of these laws telling private companies what they can and can't do in setting policy on private property--but I can see a rather interesting analogy to public accommodations laws that require businesses open to the public not to discriminate. The various state laws in question usually specify that an employer may not have such rules if the parking lot is open to the public.

If you want to know where the resentment in that Slate article is coming from, think of the money that the lawyers involved in these suits aren't going to get. The book Outgunned explains that the lawyer that got them all started on this venture was also the lawyer who started the tobacco lawsuits. You remember: the suits where Congressional Republicans suggested that the legal fees received by the attorneys should be limited to $1000 per hour of billable time--and the Democrats, friends of the little guy, insisted that this was far too low.
11.9.2005 6:14pm
Jeff Dege (mail):

Even if the NRA is technically a gun owners' association, I would bet a thousand bucks that it agrees on 99.9% with the gun manufacturers.


Tell it to Smith &Wesson.

When they tried to reach a "compromise" with the DOJ, exchanging preferential sales to law-enforcement for letting the AGs regulate their sales, and ending the lawsuits, the NRA was front and center in driving the consumer boycott that destroyed them.
11.9.2005 6:15pm
Clayton E. Cramer (mail) (www):

Not true. Judges are not "overwhelmingly liberal" by any stretch of imagination. While it's hard to compile reliable data on the state level, most of federal judges were appointed by Republican presidents, hardly liberals. Care to provide any evidence for the "overwhelmingly liberal" statement?
Republican appointment doesn't preclude them from being liberals. Look at the Republican appointees to the Supreme Court and how they voted on Romer and Lawrence.
11.9.2005 6:16pm
William (mail):
Buying vs. Bad Policy said

This bill was a power grab: a naked effort by the gun industry to extend its influence at the federal level to state and local governments (such as Chicago) where the gun industry is not so powerful.



The problem is, you have local government like Chicago making naked attempts to circumvent a constitutional right. I live in Chicago, I have my entire life, and I've owned firearms for most of my adult life. What Chicago has done is nothing short of harassment. The City of Chicago has banned handguns by fiat (the mayor simpy ordered the Police to reject any new liscenses applied for after 1981). Gun owners who try to stay legal and register their firearms have to take a day off from work every year to hand carry their liscense applications and renewals because somehow your check gets cashed but your application gets lost if you mail it in instead of showing up in person for a reciept. Even if you get a reciept, theres better than even odds that the city will either neglect to send you your completed registration cards or won't actually send them out until six months after you've applied (turn around is supposed to be 6 weeks). Every gunstore in city limits has been driven out, so those of us who do decide to own firearms have to drive to a different county to buy ammunition or use a range.

How is a small gun manufacturer supposed to fight a local government that engages in behavior like that? How are they supposed to answer a mayor who says in public that he won't be satisfied until only police have anything more portable than a musket? More importantly, how are citizens supposed to do anything about it? If a gun control measure fails in the city council, the mayor has it moved to the county (which is run by his brother), if it fails there he sends it to the State (where a third of congress won't be on the ballot if they cross him).

I'm not a fan of the immunity, either, but I can see why it was pushed. What do you do when an industry vital for national secuirty is threatened by unaccountable politicians and special interests? What do you do when a mayor in Illinois decides that he is going to keep suing a company in another state until they shut down?
11.9.2005 6:19pm
Clayton E. Cramer (mail) (www):

So what? We don't live in the nineteenth century. The nineteenth century's decisions were "very clear" that Plessy v Fergusson was a good law. It has no bearing on the argument how the courts in the nineteenth century understood the second amendment.
The closer you get to the Framers, the more clearly judges understood the right was individual. I can't find a single commentary or decision before 1900 that took the position that the Second Amendment protected a right of the states. I can find dozens that take the opposite position. They often argue that the right is a limitation only on the federal government, or does not protect all forms of "bearing" (concealed carry, for example, could be banned as long as open carry was allowed), but there's no dispute that the right is individual.

There is also the little matter of James Madison's own description of the rights that he was introducing as being "private rights." There is also the little matter of the requests for the Second Amendment from the states; none indicate that it is collective, and several are explicit that the right is individual.

Your statement about Plessy v. Ferguson makes no sense; that case was decided in 1896, so there are precious few (any?) decisions that cited it as precedent.
11.9.2005 6:21pm
Clayton E. Cramer (mail) (www):

Even if the NRA is technically a gun owners' association, I would bet a thousand bucks that it agrees on 99.9% with the gun manufacturers. And it's not "tens of millions", I think it's more like 2 millions, but I am not sure.
Last I checked, we have a bit more than four million members--but public opinion surveys often show that as much as one-third of the electorate identifies the NRA as an organization whose goals and concerns they share.


And why would gun owners be pushing for a legislation which would outlaw almost all lawsuits against manufacturers? Do you seriously think that they were afraid that the gun manufacturers will go out of business?
I certainly was concerned about it. Many of the smaller makers that made inexpensive handguns have gone under (although at least one, Lorcin, went under for actions that would not have been exempted by this new law). Smith &Wesson caved in, and Colt has effectively gotten out of the handgun business because of the threat of these suits.

NRA and gun makers are often, but not always on the same side. Smith &Wesson caved in, and gun owners boycotted it until new owners took over. Teddy Kennedy actually backed an NRA-backed bill to allow surplus military firearms to be imported; U.S. makers opposed it, because they were afraid of the competition. This is also why NRA and U.S. gun makers were often on opposite sides in the 1950s and early 1960s, when attempts to restrict imports of "cheap guns" were more about protectionism than about disarming black people. (Where do you think the expression "Saturday Night Special" comes from?)
11.9.2005 6:27pm
Markusha:

Republican appointment doesn't preclude them from being liberals. Look at the Republican appointees to the Supreme Court and how they voted on Romer and Lawrence.


Oh....You still haven't provided evidence for your claim besides pointing out that 2 Justices voted against juvenile death penalty and against criminalizing consensual sex between adults, both decisions supported by majority of the population and many conservatives.
Both Kennedy and O'Connor are pretty conservative judges, especially on federalism, law enforcement, etc. The fact that they occasionally arrive at progressive social decisions is not in any way an indicator that they are "liberals".
Still waiting for evidence that "most judges are overwhelmingly liberal."
11.9.2005 6:28pm
Clayton E. Cramer (mail) (www):

Still waiting for evidence that "most judges are overwhelmingly liberal."
How about the fact that the federal courts (with the exception of the 5th Circuit) keep insisting that the Second Amendment isn't about an individual right?
11.9.2005 6:32pm
Steve:
But see, your definition of "liberal" is a judge that you don't agree with, regardless of who appointed them, regardless of what their decisions might be on other issues. Of course most judges are "liberal" if you get to define what liberal means.
11.9.2005 6:41pm
Markusha:

How about the fact that the federal courts (with the exception of the 5th Circuit) keep insisting that the Second Amendment isn't about an individual right?


That only shows that this is a position shared by the judicial mainstream. Also, district courts are bound to follow the appeals court precedent, so if this issue was resolved in the appeals circuit court, all judges in that circuit must follow it, whatever their beliefs are.

Most federal judges are pretty conservative, which is a result of concerted policy starting with Reagan to reshape federal judiciary. Starting in 1980s, courts more actively took pro-industry positions in consumer cases; vastly expanded and enforced arbitration provisions (which usually favor industry and not consumer), made it more difficult to even reach jury stage as the standards for summary judgment are relaxed, narrowed protections to defendants in criminal cases, expanded the doctrine of federalism to protect states from private lawsuits even when expressly allowed by Congress, etc.
So, no, most of the judges are not liberal.
11.9.2005 6:41pm
The General:
Now how are the trial lawyers going to buy state legislators to make it easier to sue gun manufacturers? That can't possibly be the same thing!
11.9.2005 6:42pm
Clayton E. Cramer (mail) (www):

So, no, most of the judges are not liberal.
No, they just keep striking down legislative acts of which the ACLU doesn't approve (sodomy laws; state marriage laws) while upholding laws that conservatives disapprove of (gun control laws, for example). Now, I agree that the federal bench isn't completely filled with people who hate capitalism, but that doesn't mean that they aren't an overwhelming liberal bunch.
11.9.2005 6:48pm
frankcross (mail):
Bryco.
Charter Arms.
Davis Industries.
Professional Ordnance.


Ok, research these cases. Three of them were Chapter 11 to avoid litigation, so they didn't go out of business. Only Bryco was Chapter 7. Both Bryco and Charter Arms were held liable for producing defective guns, a claim that I trust nobody disputes, not the claims eliminated. Professional Ordnance had a reputation in gun magazines for producing defective products and reorganized to improve that, according ot those mags. Davis Industries looks like a possible example, but that bankruptcy may have simply been due to the divorce of their primary owners.

Argue against these suits if you wish, but if you're going to base it on a claim that they're bankrupting manufacturers, bring the evidence.
11.9.2005 6:48pm
The General:
In addition to the law being constitutional under the Commerce Clause, it also is a proper exercise of Congressional Power under Section 5 of the 14th Amendment, which allows Congress to pass appropriate legislation to protect fundamental (including 2nd Amendment) rights.
11.9.2005 6:53pm
Markusha:
Clayton,

If your definition of a liberal is someone who is upholding the Constitution; someone who is not a right wing nut like Judge Moore; someone who is protecting the rights of all americans and not just of the ones he/she agrees with; someone who believes that states cannot criminalize private consensual sex between adults; someone who is following the Supreme Court precedent; someone who believes that the Constitution forbids preference of religion over irreligion, then I guess you could say that judges are liberal.

But then 70% of Americans are liberals because 70% support some gun controls. Don't you see a problem with your definition of "liberal"?
11.9.2005 6:56pm
Brett Bellmore (mail):
Um, Frank, last time I checked, Chapter 11 WAS "bankruptcy".
11.9.2005 7:23pm
frankcross (mail):
Sure it is. But it's not shutting down a business, which is implied. It's used by companies to escape their liabilities, which range from lawsuits to pension plans, etc. Not that it's trivial, but it needn't cost any jobs or production of guns.

And while Clayton is correct that the federal courts have issued some liberal decisions, the vast majority of their judgments are conservative. And the courts have become much more conservative in the past ten years. Check the databases. State courts vary a great deal, some liberal, but Texas is very conservative.
11.9.2005 7:55pm
Kazinski:
This whole issue just represents democracy at work. What you had was some local and state governments that were representing majority views to crack down on the gun industry using some novel legal theories, most of which weren't finding much traction in court. Because these local and state activities were affecting the national gun market, Congress voted overwhelmingly (65-31 and 283-144) to use its Commerce clause power to maintain the national market for guns. The almost 2-1 majorities in both houses indicates that there is a national consensus that the gun industry has a right to sell their product in a lawful manner, regardless of what the consensus is in a few scattered local jurisdictions.

And even if "70% of Americans" believe in some form of gun control it doesn't matter, because that is why we have a constitution to protect our rights from the vagarities of public opinion. After all in 2002 a poll found that 49% thought the first ammendment went too far. Should we make speech a collective right too, and regulate that?
11.9.2005 8:28pm
TJIT (mail):
Markusha you said "NRA members are ordinary folks who would have no problem with neither a gun inndustry subject to the same laws as other industries nor with prohibition on assault weapons".

I would suspect most NRA members absolutely detested the "assault weapons ban" because they realized it was a ban based on nothing more then what a gun looked like.
11.9.2005 8:43pm
Nunzio (mail):
I'm a bit surprised at this Slate piece. I'm assuming they're in favor of the "federal shield law" for reporters. Why is the journalism industry's rent-seeking any better than the gun industry's (or gun owners)?

You can hardly say the people opposing this legislation had no voice. They had local gov'ts, trial lawyers groups, and anti-gun coalitions arguing against it. This seemed like a pretty fair fight to me.
11.9.2005 9:04pm
Nunzio (mail):
I'm a bit surprised at this Slate piece. I'm assuming they're in favor of the "federal shield law" for reporters. Why is the journalism industry's rent-seeking any better than the gun industry's (or gun owners)?

You can hardly say the people opposing this legislation had no voice. They had local gov'ts, trial lawyers groups, and anti-gun coalitions arguing against it. This seemed like a pretty fair fight to me.
11.9.2005 9:04pm
Jack Danyuhls (mail):
Sheez. I just waded through nearly 70 comments hoping, and ultimately failing, to find some kind of substantive response to the actual topic of Eugene Volokh's post. You know, the topic on which he explicitly emphasized he wished to focus. You know... the topic of Slate magazine. Specifically, the magazine's "justification for the article's title, or the closing two sentences."

So I guess I'll go first.

It's likely that the headline and closing paragraph were cast without regard to supporting evidence because of built-in leftist premises: namely, that corporate donations drive all legislation whose effects could be viewed as beneficial to corporations; and that support for anything whose repulsiveness is so obvious to intelligent people -- like, say, guns -- can be explained only by some unrelated motivation, like greed.

These premises must be so deeply embedded that they're taken for granted. And so everything proceeds without their ever being noticed, let alone questioned. You'll find similar evidence in a lot of the polling conducted by major media organizations, whose surveys typically include questions such as, "Do you approve/disapprove of the way the president is handling the economy?" -- without ever examining the notion that a president's role is to "handle" "the economy" in the first place.
11.9.2005 9:09pm
Robert Lyman (mail):
As it happens, I know a lot of NRA members (and am one myself). I don't have any actual polling data, but I have never talked to an NRA member who supported the "assault" weapons "ban," (they all think it's stupid and proof of gun controllers' bad faith) or who thought suing gun makers because of criminal acts was at all acceptable. The fact that you agree with the NRA's politics is the primary reason for joining, after all.

And given that the point of the lawsuits wasn't so much to bankrupt companies as to convince them to impose gun control policies on themselves, it's not surprising that NRA members who oppose those policies in legislatures also oppose them as negotiated settlements to litigation.

The gun industry's lobby is called the National Shooting Sports Foundation. Obviously it agrees with the NRA on many issues, but it is distinct from the NRA, which is about gun owners, not the industry.

Finally, if you want evidence of poltical donations, why not consider a trip to opensecrets.org? All there, all free. Amazing that Slate's reporters haven't heard of it.
11.9.2005 9:28pm
Justin (mail):
"How about the fact that the federal courts (with the exception of the 5th Circuit) keep insisting that the Second Amendment isn't about an individual right?"

I'm pretty sure the United States Court of Appeals for the Federal Circuit has taken no position on the manner.
11.9.2005 10:34pm
Dave Hardy (mail) (www):
I agree the lawsuits should not take place, but where in the Constitution does it give Congress the right to preempt state lawsuits? The Commerce clause, like with all questions of congressional origins of power, will be the likely answer, but I vehemently disagree.

While I am NOT a fan of expansive reading of the commerce clause, it seems to me that it is fairly read to allow protection, of major interstate industries, against State measures that are aimed at putting them out of business.

Esp. when some of the legal theories involved (suit on theory that gun mfr in state A is selling too many guns to state X, and should thus be on notice that some buyers in X must be reselling to state Y which has stricter laws) probably infringe the dormant commerce clause. In this case, the suit in state Y is intended to inhibit completely legal interstate commerce between A and X.
11.9.2005 10:54pm
countertop (mail):

And it's not "tens of millions", I think it's more like 2 millions, but I am not sure.


To follow up on Clayton's earlier comment - I have it from a good source (neighbor who is works at NRA) that at any one time there are actually 4 million dues paying and lifetime members ($35 a year for dues paying, $750 for lifetime, or folks like me on the extended life plan - $25 each quarter until I hit $750 which will be paid off this winter. there are also associate members who don't get the magazine subscription, my wife for instance, and the cost of that is $15).

There are another million or so people who's membership has lapsed and are generally unaware of their status (but believe themselves to be members) or in the process of renewal (or not) but who still receive the NRA's materials and tend to think they are still members.

In addition, the NRA also has federation members - members of local state clubs and also local hunting clubs and things like the Izaac Walton League through which they also receive NRA materials. I have heard the number of these folks to be estimated from anywhere between 10 million to 20 million and possibly as high as 30 million with up to half of them believing that they are members of the NRA through their local membership (the NRA would like them to be fully paid, but they don't join because they get most of the bene's anyway - and all active at times in supporting the NRA's mission).

In addition to those numbers - a reliable voting and advocacy block of NRA voices in the range of 30 - 40 million members - there is the base number of about 100 million gun owners nationwide who generally disagree with politics of the gun ban lobby (though aren't single issue voters).

Its also worth mentioning, while we are on the subject, that the NRA's political side is a rather recent development in the organization's history. The NRA-ILA wasn't formed until the mid to late 70s - decades after the birth of gun banners in this country and only after Congressman John Dingel (Democrat of Michigan - whom the current Democrat Gun Banning leadership in Washington tried to remove from office a couple of years ago felt the threat of a total gun ban was imminent. Until that time - and still in large measure today - the NRA's mission was as an educator (single largest trainer of police forces and other firearms users), standards setting, media/publishing, and competition sponsoring organization. Back then, before the NRA-ILA, it was rather rare for the NRA to get involved in hill issues.

Anyway, I have yet to see a reliable source of data that really indicates either the "majority" or 70% of American's support gun control as the Democrats Gun Banning Bigots see it. Rather, most people (especially those outside of NY City, Chicago, San Fran and LA) probably consider gun control to be a 1" group at 250 yards.
11.9.2005 11:57pm
Kevin L. Connors (mail) (www):
Hear, hear, Jack Danyuhls! Further, many of these redundant augments have bordered on absolute asininity. For instance: whatever a judge, or group of judges, record might be on a whole spectrum of cases is of no consequence to this discussion - only the record on gun cases. And, on that account, there can be little argument that the majority of judges are "liberal".
11.10.2005 12:11am
countertop (mail):
Sorry for the typos in the last post. I meant to hit PREVIEW but hit POST COMMENT instead. Anyway, in addition to correcting the typos, I also wanted to make clear that the only information I got from my neighbor is the info on paid members - which comports to what I have seen the organization state elsewhere.

Everything else comes from my general knowledge of the organization - and I believe most of the other numbers can be found out on the internet with a minimal amount of searching and have otherwise been reported in the media (I seem to recall there being a news special - perhaps on NPR - about the size of the NRA's influence).

Anyway, there is a reason they are the most powerful voice in DC, even more so than AARP - it comes from having overwhelming numbers of members and supporters who are passionate and educated (far more so than the typical Democrat gun banning bigot about the issues.
11.10.2005 12:15am
therut (mail):
Hear, Hear ========from a female NRA, GOA, Second Amendment Foundation member these groups are powerful because they are made up of millions of citizens sending in from 15-35.00 a year. WE ARE CITIZENS------- WE are not "the gun lobby". We support what the ACLU does not (as Paul Harvey would say) The rest of the Constitution. Power to the PEOPLE. Democracy at the grassroot level. Just like good classical Liberals should.
11.10.2005 1:33am
Brett Bellmore (mail):
The 70% "in favor of gun control" essentially comes from polls asking if people are in favor of any restrictions on gun ownership or sales at all. Including people who actually favor restrictions considerable less strict than are already in place, whether or not they're actually aware that they are already in place.

Thats why, outside of a few places like San Francisco, the initiative route has been generally unproductive for the gun control movement: As soon as an initiative makes gun control sufficiently salient that voters look at the issue, they find out that existing gun control is at least as much as they want, usually more, and turn against additional measures.

The gun control movement didn't turn to extortion by means of court costs because they had a high level of popular support, of that you may be sure. It was a desperation move on the part of a movement that largely lacks popular support.
11.10.2005 3:35am
Publicola (mail) (www):
As it has been pointed out, the gun industry is not completely immune from lawsuits. If a manufacturer make a firearm that discharges unintentionally, then that maker can be sued, just like anyone else who make a defective product.

I forget the case, but a few years back a boy won a suit against a gun maker (a smaller one - Lorcin? Bryco?). He was shot &paralyzed by his babysitter who was attempting to unload the family pistol. The babystiiter removed the magazine. Then he claimed to be attempting to unload the round in the chamber, but somehow had his finger on the trigger &applied pressure. The pistol discharged &the muzzle happened to be pointed at the young boy in question. Any gun nut will tell you the babysitter violated two cardinal rules of safe firearm handling (keep the muzzle pointed in a safe direction &keep your finger off the trigger until you're ready to shoot) but the paralyzed young boy sued &won based on the idea that the pistol was defective. In order to unload it you had to disengage the external manual safety. That was the defect. Never mind that revolvers - which have been around since the 1850's - have no safety whatsoever. Because this pistol had to have its external safety disengaged to unload - as many models of pistol made from about 1900 til present require - it was "defective".

I have rifles &pistols which require the eternal safety to be disengaged for unloading. I've never negligently shot anyone or anything. If I did then the fault would clearly be my own, as guns really don't magically fire all by themselves. There has to be some sort of external action applied to it, be it a very jarring bump (more jarring than you'd think) or pressure applied to the trigger. &even if I somehow inadvertently fired no one would be hurt because I never ignore controlling where the muzzle is pointed. That's basic gun handling. Been doing it that way since I was about 9. I see no excuse for anyone 10 or over not to be able to behave as safely as i do.

So I see the incident as the sole result of the babysitter's negligence. Most folks who knew anything about firearms would also come to that conclusion. Under a logically excercised legal theory, somehow it became the manufacturer's fault. I'd say this was due to the jurors ignorance about the facts, plus an obvious misapplication of law (or possibly a very bad law to begin with).

That's why such lawsuit pre-emption was needed. If a gun maker made a product with a defective mechanism they could &would be sued. But suing a gun maker for making a product that worked as designed but resulted in injury due to a third party's negligence? Or suing a gun maker because two cops were shot with that make of gun? (happened in NJ) Or suing a maker because a gun shop had a rifle stolen that was used in a crime? (that was the D.C. sniper case against Bushmaster - the maker of the rifle used).

Further - the NRA... I don't view it as a pro-gun organization per se. It's primarily a sport shooters &sporting industry organization. The NRA itself supports too much gun control (The GCA of 68, which was largely industry protectionism; the Brady bill so it could get its instant check in place; The FOPA which contained the dreadful Hughes Amendment that prohibited civilian possession of new automatic weapon, etc...) Nevertheless it has a large membership &a larger base of support. On certain issues you get the NRA members as well as folks like me who will not join the NRA (till they stop supporting gun control) united for a common cause. That's where the NRA's clout comes from. Rightly or wrongly it's seen as the representative of all american gun owners, &gun owners as a voting bloc are extremely influential. How influential? Well on the chance of courting us Kerry (who never saw a gun control law he'd vote against) dressed up in cammies &pretended to go duck hunting. That's influence. But it is a separate influence than the gun makers themselves have, even though much of the time there's an alignment of interests.

The "assault weapons" ban was mentioned - that it'd had been added on to an earlier version of the Lawful Commerce in Arms act &the entire bill was killed. That was not due to the NRA or the gun industry. That was due to people like me who raised pure t. hell at the idea of the AWB being extended. The industry &the NRA seemed willing to let the AWB pass with the larger bill in the hopes it'd be cleaned up in committee. I &every gun owner I could reach called (not wrote - called) our senators &told them very plainly that if the bill wasn't killed their party - whole party - would never get a vote from us again. The NRA got flooded with calls from members saying that if the AWB passed out of the senate it'd lose members very quickly. That's what prompted the NRA to ask the senate to kill the bill, &that's why the senators were more than happy to do so.

But confusing the gun manufacturers, the gun organizations &the grass roots gun owner is common. It usually just results in people saying "the NRA" when they mean any one of or a combination of the three. &there are a lot of more pro-gun orgs that do things which the NRA gets credited for. An example is the JPFO - Jews for the Preservation of Firearm Ownership - who had a billboard that had hitler addressing a bunch of saluting Nazi's. The caption read "all those who support gun control raise your right hand". But it was largely credited to the NRA.

&Markusha,
I'd submit that most NRA members are not in total agreement with NRA policy. Most probably think the NRA either supports too much gun control or does not go far enough in supporting pro-gun measures. NRA membership is required for certain vocations (firearms instructor, professional competition shooter, etc...) as well as required for many gun club memberships (due to the insurance discount certain gun club get if they have 100% NRA membership) &is essential if you intend to seriously compete in matches. A lot if not most NRA members are also members in other more pro-gun rogs such a JPFO, GOA, SAF or local groups such as Grass Roots North Carolina or Rocky Mountain Gun Owners.

So no; most NRA members would not support "reasonable" gun control. Besides, what the hell is "reasonable" gun control? We all support laws that concern actions which may cause harm (prohibitions against shooting in crowded areas like downtown, etc.) but I see nothing "reasonable" about prior restraint. It's the premise that if I have an object I am going to miuse it to someone's detriment. Apply the same theory to poltiical speech, religious speech, or sexual conduct &tell me what "reasonable" would mean. The majority of gun control is on its face unreasonable. It presumes that mere possession of an object would cause negligent or malicious actions by the possessor. Leaving the constitutional arguments aside, that's a damned insulting proposition - that we're all just one object's possession away from becoming harmfully negligent or malicious.

When presented with the facts about the mechanics of firearms &what any specific law would or would not do, I think that most folks would oppose most if not all gun control laws. Trouble is the facts are not usually available, as most press time is given to the people who would risk shooting themselves or someone else trying to unload a pistol. Kind of like taking advice from legislation concerning the wearing of gloves by people lacking opposable thumbs.
11.10.2005 7:30am
Clayton E. Cramer (mail) (www):

If your definition of a liberal is someone who is upholding the Constitution; someone who is not a right wing nut like Judge Moore; someone who is protecting the rights of all americans and not just of the ones he/she agrees with; someone who believes that states cannot criminalize private consensual sex between adults; someone who is following the Supreme Court precedent; someone who believes that the Constitution forbids preference of religion over irreligion, then I guess you could say that judges are liberal.
This claim of yours is so bizarre that it must be obvious even to you that you have confirmed my point. The idea, for example, that states can't criminalize consensual between adults is a liberal idea--and as recently as 1986, the Supreme Court disagreed. The preference of religion over irreligion--that's not the Constitution that requires it, but the ACLU. The Framers set up a government that quite consciously gave preference to religion over irreligion.


But then 70% of Americans are liberals because 70% support some gun controls. Don't you see a problem with your definition of "liberal"?
Even most gun rights activists support "some gun controls." We support bans on convicted felons owning guns, for example, and we would vehementhly oppose handgun vending machines in the schools.
11.10.2005 10:52am
Not a lawyer but ...:
What is to prevent anyone from suing abortion providers?

Umm ... lack of standing?
11.10.2005 12:24pm
Andy Freeman (mail):
> It documents $3 million in fees (of which two-thirds were covered by insurance).

And those insurance companies passed that cost along to their comparable customers, otherwise known as other gun manufacturers.

The only way the manufacturers could satisfy the terms demanded by the plaintiffs was to go out of biz. (Guns sold to police get misused too.) In some cases, going out of biz would be a two-step process, where the owners lost their equity in the first step, but the end was the same.
11.10.2005 12:31pm
eddie (mail):
Clayton:

If you are going to provide links, please have them be relevant and not merely self-referential (i.e. actual authority, actual proof).

A. "One nation, under God" please at least admit that this formulation has nothing to do with the framers and everything to do with the anti Communist hysteria of the 1950's.

B. When you make a sweeping statement that the framers set up a government that clearly gave precedence to religion over irreligion, where is your actual proof. For the life of me, I search and search the Constitution itself and can't seem to find the word God. And whatever you might interpret the First Amendment establishment clause to be, if the framers were favoring religion, then why ban any law establishing same?
11.10.2005 1:18pm
Clayton E. Cramer (mail) (www):

Clayton:

If you are going to provide links, please have them be relevant and not merely self-referential (i.e. actual authority, actual proof).

A. "One nation, under God" please at least admit that this formulation has nothing to do with the framers and everything to do with the anti Communist hysteria of the 1950's.
My point was that the sort of generic religion of "under God" in the Pledge of Allegiance is in line with the views of the Framers.


B. When you make a sweeping statement that the framers set up a government that clearly gave precedence to religion over irreligion, where is your actual proof. For the life of me, I search and search the Constitution itself and can't seem to find the word God. And whatever you might interpret the First Amendment establishment clause to be, if the framers were favoring religion, then why ban any law establishing same?
Gee, I gave you evidence that even in the Jefferson and Madison Administrations, government buildings were regularly used for church services--completely contrary to ACLU doctrine.

While the federal government's authority was limited by the First Amendment, it is quite clear from the materials that I presented that the ACLU notion of treating religion and irreligion equally would have been incomprehensible to a group whose state constitutions limited office holding to Christians, sometimes only Protestants, and that in some states, directed the legislature to pass mandatory church attendance laws.

The establishment clause clearly didn't prevent the federal government from favoring religion, as long it wasn't specific to a particular denomination. As I pointed out here, Congress set aside public lands for the support of churches. The federal government reserved section 29 of each township in Ohio for the support of religion. See American State Papers, House of Representatives, 11th Congress, 3rd Session, Public Lands: Volume 2, p. 220, document 187:

It appears to the committee, by the statement of the petitioners, that the third township of the eighth range in the Ohio Company's purchase is a fractional township, being intersected near the centre by the boundary line that separates the track purchased from the donation tract conveyed to the said company; that the said fractional township does not contain the section No. 29, set apart for the support of religion in the several townships in the said purchase, whereby the inhabitants are deprived of the benefit of the ministerial lands.


As late as 1833, you find Congressional bills that make reference to this, such as HR 653, 22nd Cong., 2nd sess.

To authorize the Legislature of the State of Ohio to sell the land reserved for the support of religion in the Ohio Company....


This seems to be the bill that created this, from Journal of the Senate of the United States of America, 1789-1873, December 30, 1801:

Mr. Tracy gave notice that he should, to-morrow, ask leave to bring in a bill to carry into effect the appropriations of lands in the purchase of the Ohio company, in the northwestern territory, for the support of schools and religion, and for other purposes.


Any notion that the First Amendment demanded neutrality between religion and nonreligion would seem to be contradicted by the actions taken--apparently without criticism or suit.
11.10.2005 1:40pm
Clayton E. Cramer (mail) (www):


What is to prevent anyone from suing abortion providers?



Umm ... lack of standing?
The lawsuit in New York was for injuries in particular cases caused by handguns--and was against companies whose handguns were involved in the particular case. I believe that the courts did finally release the uninvolved companies from responsibility on appeal, but they still had to hire lawyers to defend them for actions in which they had no involvement.

Imagine if lawyers sued you because someone that looked like you was in a car crash, and they sued not only the actual driver, but you, because you had a lot in common with the driver. Yeah, eventually, you would be off the hook. But think of the costs you would incur.

This is why I say that judges are very liberal. The abuse of the legal process of suing a gun company for crimes committed with a gun that you didn't make is obvious--except to liberals.
11.10.2005 1:50pm
Beau Sterling (mail):
Justin wrote:
I'm pretty sure the United States Court of Appeals for the Federal Circuit has taken no position on the manner.

Justin, I think you mean the United States Court of Appeals for the D.C. Circuit. The Court of Appeals for the Federal Circuit hears appeals from the federal Court of Claims. The Court of Appeals for the D.C. Circuit is Chief Justice Roberts' former court. (Also not to be confused with the District of Columbia Court of Appeals, the highest court of the District of Columbia!)

-BagLimit
11.10.2005 2:36pm
corngrower:
Dont remember who said it. Abortion law suits...Can't happen due to lack of standing. So if my wife of 25 years and the mother of my two children gets an abortion that I dont know about, I have no standing in the courts??? really? I seem to remember legal suits that claimed damages for children not yet concieved.
11.11.2005 11:37am
Strophyx (mail):
While the NRA has roughly 4 million members, there are several million people who when ask consider themselves to be members, even though their membership status has lapsed. Even without counting those additional, that's still several hundred times larger than the paid membership of all gun control and "gun safety" organizations combined. In addition there are reputable public opinion polls showing that more people indicate that the NRA represents whir point ov view than there are those who say the same thing of either the Republican or Democrat parties. Funny, isn't it, how a few highly paid attorneys, Hollywood celebs and and media darlings can be accepted as representing the true public interest, while millions of average Americans are relegated to the status of a "special interest".

I don't think that any of us should have any concerns about those "sensible gun control laws" that the NRA supposedly opposes, but that their members would support. I haven't seen any during the past 40 years or so. Right now in my state, the Attorney General has taken it upon himself to decide that most handguns, including those used by the FBI, US military and most police partments (including those that protect his office) are inherently unsafe, and as such that it would be a violation of "consumer safety" regulations for any dealer to sell me one. He also refuses to publish any list indicating which guns do or do not meet his criteria, waiting instead for a dealer to sell one that he considers "unsafe", then imposing large fines on the dealer with great publicity. He's even threatened out of state distributers so that many of them refuse to make perfectly legal sales of any handguns to federally licensed dealers here. Was that what you had in mind as "reasonable", or was it forcing me to spend an additional $5-10 on every purchase for a cheap lock that I'll never use because (1) it wouldn't really prevent a determined 12-year-old from using my gun and (2) I already spent several hundred dollars on a safe that would stop not only the 12-year-old but his burgler uncle.

The assault weapons is a perfect example of the delusion of "sensible gun laws". The ban didn't suffer from any loopholes. It was a complete and total fraud from very beginning. The original backers admitted beforehand that is was simply a means to get people to accept the idea of banning some firearms so that that category could be easily and slowly expended in the future. Start by banning guns that looked scary to unknowledgable people, then add small, inexpensive handguns ("Saturday Night Specials"), then accurate hunting rifles ("Sniper Rifles") and so on and so one, ad infinitum. The very term "assault weapon" was created to make people think of machine guns, an effort deception which the major media gladly assisted by repeatedly showing footage of machine gun fire while discussing the ban. The law banned guns solely on the basis of (1) their names or (2) the presence of certain cosmetic features that had no effect on the way the guns operated or on their power. When the manufacturers produced similar firearms with different names of with the offending features removed, the backers portrayed it as a cynical attempt to subvert the law, and pushed for these "loopholes" to be closed. That's like saying that driving at 40mph was "subverting" the 55mph speed limit or that it represented a "loophole" that had to be closed. I'll hold my opinion on any reasonable gon laws until such time as I see one.
11.11.2005 4:41pm