Too Many Guns?

Restricting the supply of firearms could cost lives rather than save them.

In August 1998, Chicago police officer Michael Ceriale, a 26-year-old rookie, was shot with a Smith & Wesson revolver during a stakeout at a public housing project. He died a week later. His family blamed Smith & Wesson.

If that strikes you as unreasonable, you're probably not a judge on the Illinois Appellate Court. On Dec. 31, a three-judge panel of the court unanimously ruled that Ceriale's family and the families of four other homicide victims could sue the companies that produced the guns used to kill their relatives.

Briefly put, the plaintiffs argue that gun makers make too many guns. Since criminals use some of them, they say, this overproduction constitutes a "public nuisance."

Until now, no appellate court has bought this theory, which also underlies many of the gun lawsuits filed by local governments in recent years. That includes Chicago's, which a Cook County judge dismissed in 2000.

It now seems likely that the city's suit will be revived by the same panel that allowed the Ceriale case to proceed. "A reasonable trier of fact," the judges ruled, "could find that (gun homicides) were occurrences that defendants knew would result or were substantially certain to result from the defendants' alleged conduct."

The essence of the "alleged conduct" is that firearm makers "oversupplied" dealers in Chicago's suburbs, knowing that some of the weapons would end up in the city, where handguns are banned. "Manufacturers are endangering the public health and safety (by) knowingly and intentionally supplying the criminal market," argues David Kairys, the Temple University law professor who developed this approach to gun litigation.

That certainly sounds bad, but it's hard to see how gun makers can be expected to stop their products from falling into the hands of criminals. Let's assume they can figure out what the legitimate demand ought to be in a given area and restrict their shipments to dealers accordingly. Let's also assume they can do this without running afoul of antitrust laws.

Such coordination plainly would not be enough to prevent criminals from shooting people. The gun fired by Ceriale's killer was originally shipped to a Houston dealer in 1980. No conceivable precaution by Smith & Wesson could have stopped it from being used to murder him nearly two decades later.

"The manufacturers set in motion a chain of events with the foreseeable result being the death of our clients," said Jonathan Baum, an attorney for the plaintiffs. While it's true that gun makers must know that some of their products will be used to commit murder, the only way to avoid that "foreseeable result" is to go out of business.

No wonder Dennis Henigan, legal director of the Brady Center to Prevent Handgun Violence, called the Illinois Appellate Court's decision "the gun industry's worst nightmare." But gun makers are not the only ones who should be worried. The same logic that condemns them could also be used against manufacturers of any product used by criminals.

Doesn't Chrysler know that its cars will be used in bank robberies and drive-by shootings? Can't Rawlings foresee that thugs will use its baseball bats to deliver vicious beatings? Isn't Stanley aware that adolescent toughs (not to mention hijackers) use its box cutters as weapons?

All these companies, and many others, could be said to "oversupply" their markets, making more of their products than is needed for legal uses. If suing them seems more ridiculous than suing Smith & Wesson, perhaps it's because guns are widely perceived as less legitimate than cars, baseball bats and box cutters.

Yet guns, like these other products, are used for lawful purposes far more often than they are used in crimes. And since one of these purposes is self-defense—for which are used some 2 million times a year, according to national surveys—restricting the supply of firearms could cost lives rather than save them.

That's especially likely because criminals, whose stock in trade is the use or threat of violence, are more highly motivated to obtain weapons than is the typical law-abiding citizen. Hence they are more willing to pay the higher prices that would result from a smaller supply.

"Perversely," observes George Mason University law professor Michael I. Krauss, successful Chicago-style lawsuits "would put a relatively greater percentage of the nation's weapons in criminals' hands, and a smaller percentage in the hands of honest citizens." That may not be the intent of the litigation, but it's a foreseeable result.