Gun Liability Shields


From a political standpoint, I’m fairly convinced that the Democratic Party should steer far, far away from its gun control stance: frankly, it’s a losing issue and it costs them too many votes that could be used to forward far more important progressive goals. From a personal standpoint, I’m all for letting people have guns, but every now and again I read a story about the whiners who head up the NRA and some primal part of me just wants to regulate the gun industry right out of existence, purely for spite. The assault weapons ban, granted, is frivolous and mostly useless, and the NRA was right to oppose it. Nevertheless, there’s no reason that the gun industry shouldn’t be treated like the auto industry—universal registration of firearms, granting gun owners licenses based on skills and knowledge of gun law, a liability insurance requirement, letting the Consumer Product Safety Commission test and rule on guns—and perhaps a modest limit on gun purchases (one per month, maybe).

Now it may be that the NRA opposes these common-sense measures because they fear that sensible regulation would just amount to one giant slide down the slippery slope to total gun confiscation—and admittedly, that fear has some basis in fact, since lots of liberals really do want to ban all guns—but by itself, the opposition to these sensible regulations is pretty much without merit.

Anyway, that’s all by way of saying that I have mixed feelings about this liability shield for gun manufacturers that’s coming up for a vote in the Senate. Some might argue that lawsuits against gun manufacturers as a result of misuse of a firearm are just frivolous, and will never succeed anyway. (After all, should alcohol makers face lawsuits for “foreseeable misuse” of their products too?) The first point seems true—strictly speaking, holding a gun manufacturer liable for the “criminal or unlawful misuse of a [gun]” by a third party seems idiotic.

But then again, say a gun manufacturer starts selling far more guns in states with weak-gun control laws, more than the people living there could possibly buy, and the excess guns end up in, say, the hands of criminals in a state with tight gun-control laws like New York? Should third parties be allowed to sue for “negligent marketing”? These aren’t hypotheticals, of course; the courts have thrown out these exact cases—even supposedly anti-gun activist judges like U.S. District Judge Jack Weinstein have ruled against the plaintiffs—although that trend could change over time, as legal thinking “evolves.” (Surely the gun industry isn’t just worried about frivolous lawsuits—they’re worried they might start to lose these suits.) Meanwhile, negligent marketing does seem like a problem and not at all something in the spirit of the Second Amendment, or freedom to bear arms, or anything of the sort. We can all see what’s at issue here—manufacturers are getting rich by circumventing laws meant to reduce gun crime. And when legislatures at the state and national level can’t or won’t do anything about it, then litigation can often step in and force an industry to account for its negligent product marketing and/or design, as it did to the tobacco industry in the 1990s.

Then again, it may be unwise to rely on activist courts to fight these sorts of battles. So there just might not be any answer to gun manufacturers running amok, at least barring a shift in popular sentiment at the national level. (And given that rural states are disproportionately represented in the Senate, that seems unlikely; unless, of course, the filibuster were to be abolished.) Now as it happens, I’m not convinced that guns are even among the top 10 biggest problems facing America today, so I don’t lose a whole lot of sleep over this, but it still seems like a difficult issue.

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