A Smith & Wesson FAQ

A gun deal with many losers.

Walter Olson from the June 2000 issue

(Page 3 of 3)

Legislation-by-lawsuit allows another end run around constitutional review. We saw this first in the tobacco round, where the settlement included curbs on advertising that would have been unconstitutional if they had been imposed directly by lawmakers (or courts, for that matter). When it's done through a lawsuit settlement, not only are the rights deemed waived, but interested third parties, such as magazines that might have a stake in the right to advertise, lack "standing" to challenge the deal. Now we see the same sort of thing in the gun round. Had the Cuomo-Spitzer-Blumenthal package of gun controls been enacted through legislation, Second Amendment advocates might have hoped to get courts to strike down parts of it, such as the restrictions on taking possession of handguns. But doing it through a lawsuit settlement may insulate such provisions from constitutional review.

The gun suits are also a textbook example of the gross abuse of litigation in a system that lacks any semblance of a loser-pays principle. Yale law professor Peter Schuck told The New York Times that he "doubts [Smith & Wesson] would have lost a court case" had matters reached trial. Indeed, several municipal gun suits had been thrown out already. Yet these often-wealthy cities faced no risk at all of having to compensate the far smaller, often family-owned gun companies with whom they'd picked a fight. Several gun makers have gone bankrupt since the legal onslaught began, and even Smith & Wesson's continued ability to function was in doubt.

Until quite recently in legal history, the use of litigation costs as a weapon to pry concessions from an opponent was considered unethical. Now they're boasting about it. Cuomo warned gun makers that unless they cooperated they'd suffer "death by a thousand cuts." "If you don't sign," said Spitzer at a press conference, referring to holdout Glock, "your bankruptcy lawyers will be knocking at your door." Who says there are no Ayn Rand villains in real life?

And with all that, Smith & Wesson has not bought and cannot buy peace. Initial reports portrayed Cuomo as vainly imagining that he could "deliver" the settlement signatures of the 30 mayors who have sued so far, most of whom have hired outside trial lawyers. Shortly after, this theme was quietly dropped as it became apparent that up to half the cities weren't taking the deal. Josh Horwitz, executive director for the Educational Fund to End Handgun Violence, which represents some of the cities, explained that the cities were not dropping their suits in part because the deal "does not contain any monetary damages." Observes gun scholar David Kopel, "In the long term, S&W has increased the chances that it, along with every other handgun manufacturer, will be destroyed."