Shot Down

Last fall, when a Cook County judge dismissed Chicago's lawsuit against gun manufacturers, Mayor Richard Daley condemned "the suburban gun dealer who supplies Chicago street gangs with weapons that snuff out the lives of innocent children." Last month, after the Louisiana Supreme Court threw out his gun lawsuit, New Orleans Mayor Marc Morial referred to "children who've lost their lives" in gun accidents.

But the invocation of dead children could not hide the fact that both lawsuits, which sought to blame gun makers for the negligent or criminal use of their products, were legally and morally bankrupt. New Orleans and Chicago were the first cities to file such suits, back in the fall of 1998, and since then 30 cities and counties, along with one state (New York), have followed their example.

So far half a dozen of the government-sponsored suits have been dismissed. Those decisions, coupled with a recent ruling by New York's highest court in a private gun case, give reason to hope that the tide has turned against this brazen campaign to impose gun control through the courts.

Cook County Circuit Judge Stephen Schiller ruled that, even if Chicago could prove all the facts it alleged, it could not substantiate its charge that gun makers had created a "public nuisance" by allowing too many of their firearms to be sold in the Chicago area. Two months later, a federal judge rejected Philadelphia's attempt to use the public nuisance argument, calling it "a theory in search of a case."

The Louisiana Supreme Court saw the New Orleans lawsuit--which argued that guns lacking features aimed at preventing unauthorized use were defective--for what it was: "an indirect attempt to regulate the lawful design, manufacture, marketing and sale of firearms." As such, the court said, it conflicted with a 1999 law reserving that power to the state legislature.

The court ruled that the law, which was passed in response to the city's suit, did not violate the constitutional ban on retroactive legislation because it applied to municipalities rather than individuals. Twenty-two other states have passed laws aimed at preempting local gun suits, and more are expected to join the list.

New York (the only state with a gun suit of its own) is not likely to be one of them. But a recent unanimous decision by the state's Court of Appeals does not bode well for New York City's lawsuit.

The court effectively overturned a 1999 verdict in which a jury held gun makers liable for the sort of "negligent marketing" alleged in the government-sponsored suits. It's the only case in which a jury has ever awarded damages based on this theory.

Brought by the relatives of shooting victims, the case was tried in federal court because the defendants were from other states. But after the gun makers challenged the verdict, the U.S. Court of Appeals for the 2nd Circuit asked the state Court of Appeals to decide "whether the defendants owed plaintiffs a duty to exercise reasonable care in the marketing and distribution of the handguns they manufacture."

In other words, could the gun makers be held liable for failing to prevent their products from being used by criminals? Concerned about "potentially limitless liability" and "the unfairness of imposing liability for the acts of another," the court said no.

"None of the plaintiffs' proof demonstrated that a change in marketing techniques would likely have prevented their injuries," Judge Richard C. Wesley wrote. He added that gun makers could not be liable for "negligent entrustment" without evidence that they had knowingly supplied firearms to dealers who consistently made illegal sales.

This decision will make it hard for New York City to press similar claims, and it may inspire judges in other states to reject the dramatic changes in tort law favored by anti-gun activists and their trial-attorney allies. But it does not directly address the public nuisance argument at the heart of New York State's lawsuit.

George Mason University law professor Michael I. Krauss suggests an interesting twist on this claim in a paper published last year by the Independent Institute. Citing evidence that laws allowing people to carry concealed weapons help deter crime, Krauss notes that a criminal's uncertainty about whether a potential victim is armed benefits law-abiding people in general, not just those with guns. "Far from constituting a public nuisance," he writes, "firearm marketing generates a public good."

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