Guns, with Occasional Lawsuits

Brian Doherty | December 3, 2004

Cato's Robert Levy over at the American Spectator site explains how being pro-gun rights doesn't mean you are for anti-federalist measures that ban gun manufacturer liability suits (which hold manufacturers of guns responsible for the crimes and torts of gun users) in state and federal courts. It contains a good summation of the history of most such suits: Fortunately, they almost always ultimately fail to squeeze cash out of gunmakers.

Comments

|12.3.04 @ 8:02PM|#

I am personally against gun manufacturer suits because it stifles free trade.

Gun makers have to inflate their MSRP prices to compensate for carrying high premium liability insurance.

|12.3.04 @ 8:05PM|#

Would blocking them in fed court be anti-federalist? Don't think so. It just means you would have to file in state court.

|12.3.04 @ 9:09PM|#

Headline writer:
You're referring to "Cloudy with the Chance of Meatballs," right?

I enjoyed reading that many times to my beloved daughter, who is now 30.

Jon Bristow|12.3.04 @ 9:40PM|#

No, he's referencing one of my favorite Sci-Fi novels, Jonathan Lethem's Gun, With Occasional Music

|12.3.04 @ 9:55PM|#

Jon,
I grok you, and am in the process of garroting my silly self.

Peace out... way out.

(Don't call 911, as what I'm really doing is going beddie-bye.)

See you tomorrow!

"Gun with Occasional Music"
hmmm...
Have you ever lived in da 'hood?

|12.3.04 @ 10:46PM|#

Actual defect is the only case where liability charge can be levy against the gun makers. If the gun does not blow up upon use, or failed to kill the would be attacker because it failed to fire, a product defect liability makes sense.

|12.4.04 @ 10:21AM|#

they almost always ultimately fail to squeeze cash out of gunmakers.

Except the for money spent in legal costs defending these suits, which has already bankrupted smaller manufacturers and motivated others the abandon the handgun market in fear (alas, the LAR Grizzly...)

G

Brian Carnell|12.4.04 @ 10:43AM|#

It contains a good summation of the history of most such suits: Fortunately, they almost always ultimately fail to squeeze cash out of gunmakers.

Regardless of whether Levy is right or not, this is not much comfort. Lawsuits against tobacco companies also generally failed for decades, but all it took were a handful of successes to open the floodgates. Given how much smaller the gun industry is compared to the tobacco industry, it won't take many successful lawsuits in anti-gun friendly areas to threaten the viability of the entire gun industry.

Levy's argument seems to rely on the fact that this watershed hasn't arisen yet,

Of course, the industry contends that costs of litigation have driven companies out of business and raised prices for firearms. Yes, that may be a problem; but unless and until Second Amendment rights are compromised, there's no role for the U.S. Congress.

Waiting until after this happens would be far too late.

|12.4.04 @ 10:58AM|#

I'm so used to seeing the commerce clause used to justify letting the feds do anything that I almost didn't notice that this is exactly what it was intended to do. Anti-gun groups are using lawsuits in anti-gun states to affect gun sales throughout the country. The commerce clause was made to allow the feds to stop states from restricting the trade of other states so this law is not a violation of origional intent.

|12.4.04 @ 1:47PM|#

Why am I not surprised that this would be the one place where everybody on this forum is OK with the feds overstepping their enumerated bounds?

|12.4.04 @ 2:24PM|#

To put it in perspective, what if the product wasn't guns, something that lots of people here feel strongly about?

What if it was, oh, let's say something that people on the other side of the political divide tend to buy? Something produced by a company headquartered in a US state. Hmm, well, Volvos are Swedish. Maybe Starbucks (all those "latte-drinking elitists"), but lattes have crossed the cultural divide. PBS and NPR are publicly funded, so that raises all sorts of other issues. Maybe there's some sort of mail-order catalog favored by upper-income lefties? Being a heterosexual male scientist I don't know where my professors (or, more accurately, their wives) buy home furnishings and decorations.

Anyway, assume there's some company that sells essential accoutrements of the upper-income lefty lifestyle, and a mean conservative decides to sue them out of existence. The conservative hires lawyers in the home state of that company and recruits plaintiffs from that state. He files some frivolous lawsuits and takes advantage of his deep pockets and state laws to destroy this company.

How many people would clamor for Congress to step in and protect interstate commerce in whatever it is that upper income lefties enjoy?

|12.4.04 @ 4:40PM|#

I'll bite.

Unfortunately we now sue each other, not to win, but impose the cost of defense on the other party. The suers dont need to win, just to harrass and annoy. Perhaps people who file frivolous lawsuits could be held in contempt and forced to reimburse the legal costs of the people they sued.

The situation with guns is happening with cigarettes, fast food, and anything else the wackos don't like. These lawsuits hurt shareholders, consumers, employees, and suppliers as well as executives. Legislating to prevent this would hardly be the furthest the interstate commerce clause has been stretched.

|12.4.04 @ 7:17PM|#

thoreau
How about homosexual pornography if you want something lefties might want that righties would use underhanded tricks to ban? While I have no interest in such products I would support congress blocking attempts by the people in one state to stop people in other state from making a living at it.
It's true that I'm more interested in this law because I care about gun rights (when did self-interest become a bad thing?) but it doesn't violate my constitutional principles.

The key questions to ask about the use of the commerce clause are:

Does the law directly address the buying and selling of a commodity?
Does it directly involve at least two states?
Does it encourage and not restrict trade?

The law in question, unlike almost every other time the commerce clause is invoked, meets the above standard.

|12.5.04 @ 10:01AM|#

Thoreau,
The gay porn analogy that Eryk uses is a good one.

I don't know that conservatives have tried to get stuff banned the back door way, by suing the companys that produce them.

That whole approach angers me. There has to be some kind of rule to protect someone from being run out of buisness that way.

I think the better comparison for me would be tobacco, I detest the use of dipping tobacco from being around people that spit all the time (it is big in the military) and while stationed in VA I worked part time as a bouncer, and I hated smelling of cigarettes at the end of the night.

However trying to protect people by suing tobacco companys out of existence strikes me as very unbecoming of a free people. Trying to control behaviour of adults who are supposedly responsible for their own actions.

The proper way to do the wrong thing, is to do like they did in CA and ban it through the law.

|12.5.04 @ 11:37AM|#

Off topic, but did you all hear about McCain wanting legislation to make MLB drugtest their ballplayers?

Is that even legal? Is MLB a public institution? If so, how, and if not, how can they legislate something like this?

|12.5.04 @ 11:41AM|#

*... if so, WHY? :)

That's what I meant.

|12.5.04 @ 12:33PM|#

I completely agree that it is despicable to ban something by suing the company out of existence. The question is whether tort law should be a federal or state matter. I see Eryk's point, but I'm not convinced. I will think about it more, however.

And, kwais, I salute your use of double entendre!

The gay porn analogy that Eryk uses is a good one.

I don't know that conservatives have tried to get stuff banned the back door way, by suing the companys that produce them.

|12.5.04 @ 1:04PM|#

Glad you appreciate the double entendre, I was aware of it when I wrote it, but I didn't plan it. I should have said "I don't know IF" instead of "I don't know that"

Also regardless of whether it is a state issue or a federal one, you understand that it is generally an issue of trying to force a nanny state on people right? And that it is a deviant way of forcing other people to behave as some behavior crusader believes they should.

Also something about it not being governments job to put buisnesses out of buisness, if they are not committing a crime.

|12.5.04 @ 3:36PM|#

kwais-

I'm as opposed to these lawsuits as you are, and I recognize that these lawsuits are attempts to force a nanny state on people. I just wonder whether it's better to address these things at the federal or state level.

I believe that a distinguishing trait between libertarians and everybody else is that when we see a problem, before pushing for Congress to get involved we usually stop to ask "Is this really something that Congress should be involved with?"

|12.5.04 @ 5:17PM|#

My 44 magnum Ruger Blackhawk left the house last night and shot my ex wife and three other people. It was at the front door this morning begging to come back in. I cursed the big pistol and told it that it had commited unproper behavior. These stupid guns will probably never learn.
We need more laws aganst them!!!!

|12.5.04 @ 6:34PM|#

andy,
He may not need to legislate he, an easy way he could pressure MLB is to threaten to take away baseball's anti-trust exemption. Bud would rollover for that. Though I'm not sure how much I would mind a revocation of baseball's exemption.

And no I don't think regulating MLB is Congress' business, but I'm sure they could try to fit it in under workplace safety regs.

|12.5.04 @ 6:45PM|#

Hee, hee, hee.

Schumer can't spell and Hillary's a bitch.

Bet you're really missing me and D'Amato about now.

God, it's good being dead. Gives you wonderful perspective. Life is wasted on the living.

|12.6.04 @ 9:01AM|#

I'm not a lawyer, but what I would love to see is a counter suit naming 10 or 15 major law firms and special interest groups in a conspiracy to interfere with interstate commerce. After all, you can demonstrate that they keep losing and venure shopping the same tired cases. At some point, it has to be obvious that they are not interested in anything other than driving out interstate commerce in a certain product. I would like to see actual damages in the form of increased liability insurance, lost business, and aggregate legal defense fees. I would also like to see punitive damages assessed against law firms that bring these cases.

Punitive damages are designed to prevent the occurrence of design flaws that are determined to be financially sound based on the risk of someone getting hurt. Similarly, venue shopping is just repeating the same act of commerce interference repeatedly in the hopes of striking gold once.

I guess a flaw in my plan is that interefering with interstate commerce may not be an actionable item in any civil court in the land, but with all the goofy conspiracy charges I've heard, there has to be SOMETHING that would work along those lines ...

|12.6.04 @ 1:39PM|#

"The situation with guns is happening with cigarettes, fast food, and anything else the wackos don't like. These lawsuits hurt shareholders, consumers, employees, and suppliers as well as executives. Legislating to prevent this would hardly be the furthest the interstate commerce clause has been stretched."

The overall solution to the problem of using lawsuits as a social crusading vechicle is to change the legal system to a loser pays court costs system as they have in other countries - countries that (surprise) have nowhere near the number of lawyers or lawsuits per capita as the US does.

That would not only take care of the social crusading type lawsuits, it would also take of the sleazy, ambulance chasing lawyer type lawsuits that attempt to extort money from corporations or individuals by filing baseless or weak lawsuits to get them to pay some settlement becuase it would be cheaper than going to court.

|12.6.04 @ 4:23PM|#

I wonder if conservatives will take a page from the tobacco-nannies and the food-nannies and sue over porn at some point. They already have studies which "prove" that porn is bad for you. How tough would it be to come up with numbers on how many minors get their hands on porn despite laws against it in some states?

So here's how it goes:
1) The product is bad for you
2) There are laws to keep this product away from minors
3) Minors are getting this bad product anyway
4) The people who make this product aren't doing enough to stop this, and may even be marketing to teenage boys
5) Therefore, they are a "public nuissance" and are complicit in something that harms "the children."

Paging John Banzhaf! Paging John Banzhaf!

|12.7.04 @ 11:48AM|#

Thoreau,
What??? Are you trying to encourage conservatives to be nanny staters too? I'm sure it is only a matter of time before some church going nazis figure that one out. After all, there are a lot of people on the right who are not that concerned with taking away the 2nd Ammendment via lawsuits.

You know that any lawsuits against porn would have much bigger implications. You can't buy playboy at the PX anymore, so many have turned to the internet. Any suit against porn would have to involve the internet.

Now that you mention that, I am more convinced than ever that there needs to be some measure to prevent poeple from suing stuff out of existence.

I like the two ideas mentioned earlier;
Sue the law firms that sue.
And, make the loser have to pay all the legal fees.

|12.7.04 @ 12:35PM|#

kwais, I don't actually want them to do this. I just want to see a liberal think through the implications and realize that if he can go after guns and french fries, Jerry Falwell can go after porn.