New at Reason

Julian Sanchez | August 8, 2005

Jacob Sullum and former Congressman Bob Barr (R-Ga.) take 10 paces and face off over the NRA, private gun bans, and federal restrictions on state suits against gun makers.

Comments

|8.8.05 @ 2:40PM|#

The Lawful Commerce In Arms Act is nothing more than a bandaid response to the deliberate misuse of the legal system in an attempt to further a political agenda.

|8.8.05 @ 2:59PM|#

I find the 'unilateral disarmament' argument very scary ... and oddly compelling. How effective do we think we will be if we continue to operate on the assumption that anyone else gives a poo about diluting the constitution? If everyone else jumps on board the Liability Branch of Government model and we refuse to respond, we are morally right but we will lose.

|8.8.05 @ 3:05PM|#

Are these lawsuits being filed in federal court? I thought they were all in the state courts.

|8.8.05 @ 3:10PM|#

is it better to be morally wrong and win? i don't call myself a libertarian because i think libertarians will likely control congress in a few years, but because of my morals.

|8.8.05 @ 3:11PM|#

joe writes:

Are these lawsuits being filed in federal court? I thought they were all in the state courts.

They are suits under the common law of the various states. They could be brought in a state court or -- if the suit were against an out-of-state manufacturer -- in federal court.

|8.8.05 @ 3:14PM|#

zach:

I am a consequences guy. I am a libertarian because I believe the sole purpose of government is to serve as an individual liberty maximizer. I am interested in persuing any option that has the long term effect of increasing liberty. In that sense, I'm not married to the constitution, per se. Which is good, because it doesn't mean much these days anyway.

|8.8.05 @ 3:22PM|#

Ironically, Barr thinks he has the balls to lecture Sullum about the latter's appearent lack of libertarianism.

|8.8.05 @ 3:24PM|#

OK, I understand that the Constitution gives Congress the right to restrict anything it wants in the federal courts. But under what power can Congress say that a citizen of Massachusetts cannot sue somebody in the Massachusetts courts, under Massachusetts General Laws?

I guess you could point to the 2nd Amendment, and say that Congress can take action to restrict the power of state courts in order to protect the "civil rights" of people who would want to buy guns from the manufacturers who would, allegedly, be put out of business by these suits. Let me draw a comparison.

I buy a PA system from Best Buy, and use it to blare white noise at my neighbor's house every night. I keep buying more speakers from Best Buy, who knows (this is the key part, they'd have to know, but bear with me) what I'm going to do with the speakers. My neighbor sues Best Buy for selling me the speakers despite knowing what I'm going to do with them. Best Buy goes out of business. Does this violate the First Amendment rights of everybody in my state who wants to buy speakers?

|8.8.05 @ 3:26PM|#

jason,

i'm a consequences guy, too. i just think that certain measures, while they may solve immediate problems, will have negative consequences down the road.

akira,

Ironically, Barr thinks he has the balls to lecture Sullum about the latter's appearent lack of libertarianism.

well he did, so apparently, he does.

|8.8.05 @ 3:29PM|#

well he did, so apparently, he does.

I have a nice set of dull, rusty, kitchen knives. We can fix that... or rather, we can FIX Barr.

|8.8.05 @ 3:36PM|#

joe, wouldn't it be more like suing Sony, who manufactured your speakers, because their production of the speakers enabled you to blare white noise at the neighbors?

Further, since you told the salesperson at Best Buy - not at Sony - what you planned to do with them, how is Sony liable?

|8.8.05 @ 3:36PM|#

buy a PA system from Best Buy, and use it to blare white noise at my neighbor's house every night. I keep buying more speakers from Best Buy, who knows (this is the key part, they'd have to know, but bear with me) what I'm going to do with the speakers. My neighbor sues Best Buy for selling me the speakers despite knowing what I'm going to do with them. Best Buy goes out of business. Does this violate the First Amendment rights of everybody in my state who wants to buy speakers?

not really, since you can get speakers plenty of places besides best buy. so it wouldn't really affect consumers directly. really it needlessly interferes with best buy's ability to do business, which is also bad.

|8.8.05 @ 3:54PM|#

Rich Ard,

The federal legislation would protect manufacturers and distributors of firearms.

Sony could be liable if they knew, or should have known, that their distributor was allowing people like me to buy speakers for my criminal deeds.

M.J. Basial|8.8.05 @ 4:01PM|#

joe,

I don't know where you, Sony, and Best Buy executives live, but every neighborhood I've ever lived in has included the use of car speakers to violate noise ordinances.

Waking someone up at 3AM with the latest in sub-bass technology is certainly a far cry from shooting them, but everyone knows that some people use these speakers to disturb the peace.

They may not know which people will use the speakers in a criminal fashion, but they know it happens.

|8.8.05 @ 4:01PM|#

"...their distributor was allowing people like me to buy speakers for my criminal deeds."

Ha! Sorry, I hadn't taken the effects on distributors into account.

|8.8.05 @ 4:07PM|#

joe,

I'm having a little difficulty digesting your comparison here. The 2nd amendment lists my right to bear arms. The part of the 1st which you're comparing is that of free speech, not free speakers. That is I have the right to say what I want, but the volume at which I say it is able to be regulated, which, btw is an argument that I'm sure you would like to translate to the 2nd amendment (ok, you can own a gun, but not a machine gun.)

|8.8.05 @ 4:12PM|#

Mr. Baisal, I'm not discussion noise ordinances. I'm discussing the legal theory behind the move to ban these gun lawsuits.

Girth, you are free to manufacture your own firearms, or start a company whose business practices do not put it in a position to be liable under these lawsuits. What, you think you have a right to have a company in business that will sell you what you want, in order to exercise your rights? Some libertarian you are!

|8.8.05 @ 4:17PM|#

To combine a few threads, could a gun manufacturer be sued because it only sells guns to native Hawaiians? And if the company loses, will the costs be born by purchasers or shareholders?

;-)

|8.8.05 @ 4:26PM|#

joe,

What, you think you have a right to have a company in business that will sell you what you want, in order to exercise your rights? Some libertarian you are!

Girth never said that.

Girth,

part of that comparison in fact underlines how ridiculous it is to restrict the sale of machine guns because they're "too much". should we place restrictions on how loud cars' sound systems can get, because past a certain volume they're surely only serving to disrupt the peace? since we're talking about cars, should we place restrictions on how fast of a car you can buy legally, since speed kills?

joe will now suggest that i may as well be in favor of selling cars with jet engines attached to them.

|8.8.05 @ 4:29PM|#

With respect to lawsuits againts gun makers or distributers:

I could understand if a guy went in and said "I would like a gun to commit murder with" and the seller said "In that case I recommend this fingerprint proof gun".

I could even understand if a seller simply was too negligent to do a backround check and therefore sold a gun to a violent felon.

In those cases I would not object to suing a negligent seller.

I strongly oppose however, suing on grounds that: "You are selling guns and you know some will use those guns to commit crimes. Therefore when someone does, even if you had no reason to suspect that person and made a good faith effort not to sell to violent felons, you are liable"

This line of reasoning implies that makers or sellers of firearms have an obligation to either:

- monitor everyone who gets one of their guns (an impossible task in practice)

or

- not sell any guns

If everyone has such an obligation and everyone fulfills it there would be no ability for private citicens to bear arms. This is why the arguement: "We aren't going after gun owners or their rights; just the companies" doesn't hold water.

With respect to the point of debate: does congress have legitimate authority to impose this kind of tort reform? I am not sure about that one.

|8.8.05 @ 4:31PM|#

spelled "citizen" wrong

|8.8.05 @ 4:40PM|#

Sony could be liable if they knew, or should have known, that their distributor was allowing people like me to buy speakers for my criminal deeds.

That's pretty asinine, joe. should have known? What is that supposed to mean?

I've known a number of FFL's who have opted not to sell to an individual simply because they got a hinky feeling. But according to you, an FFL should be put in the position of possibly having his life ruined for not being psychic.

Also realize that many of these lawsuits dealt with fabricated accusations of "defective" firearms- for instance, Dix vs. Beretta where it was alleged that Beretta should include a loaded chamber indicator on their pistols, despite the fact that Beretta does, indeed, include a loaded chamber indicator on their pistols.

From the very beginning these lawsuits have been about forcing a political agenda down the throats of the US gun culture, and the American public at large.

M.J. Basial|8.8.05 @ 4:42PM|#

joe,

Sorry for the misunderstanding. What I was trying to get across was that parallel situations already exist (criminal misuse of legal products), except for the step of lawsuits against the speaker industry.

And except for the fact that you stated that Best Buy KNOWS you are going to break the law. That's being an accessory to a crime, and it's also against the law. If we flash back to guns, that's accessory to murder. The civil lawsuit will be much easier to win after the distributor's criminal conviction.

Gun/speaker/car/everything manufacturers and distributors know that some small percentage of their products will be used in crimes, but they don't know by whom.

Honestly, I don't see it as a 1st/2nd amendment issue at all. I would prefer to see the law protect all industries, rather than focus on guns. You could probably do away with harassing lawsuits with a loser-pays system (how about loser pays winner's costs, plus some percentage of what the loser was asking for).

|8.8.05 @ 4:42PM|#

I could understand if a guy went in and said "I would like a gun to commit murder with" and the seller said "In that case I recommend this fingerprint proof gun".

I could even understand if a seller simply was too negligent to do a backround check and therefore sold a gun to a violent felon.

Doing either of these is already illegal, and there's nothing in the recently passed legislation that would do away with it.

|8.8.05 @ 4:46PM|#

zach,

Do you believe Ford should be able to sell cars with jet engines on them? Why or why not?

Do you believe the family of somebody who gets runover by the inevitable runaway Mustange JE should be able to sue Ford? Why or why not?

|8.8.05 @ 4:48PM|#

Oh, and big ups to Mr. Sullum and Mr. Barr. The article has been cross-posted this to The High Road for discussion.

|8.8.05 @ 4:49PM|#

Strike the word "this" from my last post. Urgh.

|8.8.05 @ 4:50PM|#

Do you believe Ford should be able to sell cars with jet engines on them? Why or why not?

Are we to assume a hypothetical world where jet-powered cars would be legal to manufacture, own, and be street legal?

|8.8.05 @ 4:50PM|#

geek,

"should have known? What is that supposed to mean?" It's a finding of fact that juries are called upon to make all the time.

"But according to you, an FFL should be put in the position of possibly having his life ruined for not being psychic." No, the standard is not "psychic," the standard is the knowledge expected of a reasonable person. Once again, a judgement call that juries make all the time.

I don't doubt that weak cases have been filed. That probably explains why they haven't prevailed.

|8.8.05 @ 4:59PM|#

mediageek,

I agree that "they sold guns, and someone used one in a crime" should not be an actionable complaint. Here's the scenario I'm concerned about:

Slick Lou's Guns N Lawn Chairs has a habit of losing part of their orders. It's happened a few times, and they always fill out the required forms about incomplete deliveries, and keep their license. What's more, the guns that don't make it to Slick Lou's storeroom have a habit of turning up at crime scenes. The cops in Slick Lou's hometown write to Slick Lou's suppliers whenever this happens, so they know it's a problem.

So, Slick Lou puts in an order for three cases of TEC-9s and the manufacturer, who has received a few letters from the local police, goes ahead and fills the order anway. And whaddya know, one of the cases falls off the truck, except this time, one of the guns from that truck is used to spray the backroom of a pizza shop with 9mm bullets while four independent contractors are sitting there, filling out their football cards.

Call me crazy, but I think the manufacturer just might bear some legal liability for continuing to ship to Slick Lou. I think a jury should probably hear the gory details of what the manufacturer knew about where their guns were ending up.

|8.8.05 @ 5:04PM|#

Joe

Yes ford should be allowed to sell them but it should be illegal to use them with the jet engine on while driving in residential areas.

If you want to drive 600 miles per hour out in the middle of the desert or something, away from everyone else, thats fine.

If someone buys one and drives 600 miles per hour down a residential street and runs another person over; the driver should be held liable, not the company. This is similiar to how it works now with regular automobiles.

|8.8.05 @ 5:07PM|#

joe,

If you want to ignore my analysis of your comparison, credit positions to me that I do not hold, then revoke my libertarian card, so be it.

Then you can sit there and carefully craft an example for mediageek that is significantly different from your original.

It's okay, I'm thick-skinned, I can take it.

|8.8.05 @ 5:16PM|#

Joe, you're crazy, but not for the stated reason.

1) I'm not aware of any case that has circumstances close to that.

2)The Lawful Commerce in Arms act would not protect Slick Lou if it can be proven that he's not doing background checks, or is knowingly selling to prohibited purchasers or turning a blind eye to provable strawman purchases.

Allow me to counter with a real-world situation. One of the people I regularly shoot bullseye practice with at the Olympic Training Center happens to be the FFL holder for the largest gun store in town. He and his business partner are very meticulous about keeping their records straight and keeping an eye out for people making straw purchases.

But no matter how meticulous they are, they still get calls from the local BATFE office tracking guns that were purchased at their store.

Now, they do a lot of business. It's simply a given that somewhere along the lines someone will slip through, or a gun will pass through enough hands that it eventually ends up in the hands of someone nefarious. That's life, nothing is 100%. Yet, applying your standard to them, they're obviously being negligent in their duties simply because a bigger percentage of guns are traced back to them. Nevermind that they do probably five to ten times as much business as any of the other FFL's in town.

M.J. Basial|8.8.05 @ 5:16PM|#

Sometimes I think that the gun culture could get favorable laws/precedent more easily by filing similar lawsuits against other industries. A dozen gun groups should sue Ford for making a product that can easily be used by any criminal. I mean, they sell those 2-ton death machines to just anyone!

Pretty sure auto manufacturers could get legislation written, and fast. Just a few frivolous lawsuits later, gun owners would have what they want.

And I, for one, say YES to jet cars! I'm starting to save money now for the Viper JE (Afterburner Edition). 5,000 HP!

|8.8.05 @ 5:17PM|#

Slick Lou's Guns N Lawn Chairs has a habit of losing part of their orders.

joe, can you actually cite a case where this happened?

|8.8.05 @ 5:22PM|#

Mediageek beat me to it.

Believe me, joe, your Slick Lou would be getting a whole lot of unwanted attention from the BATFE.

|8.8.05 @ 5:23PM|#

disclaimer:

in a future world where jet cars could be used practically, through some combination of technological advancements and computerized traffic coordination, i of course would have no problem with the manufacture and distribution of jet cars in the U.S.

it's sad when you have to follow up your arguments with "i mean, in reality".

M.J. Basial|8.8.05 @ 5:29PM|#

(Am I the only one who thought the jet car thing was a joke by joe?)

As for Slick Lou, I think negligence on the part of the police, not the manufacturer, would be the issue here.

People getting killed? Get off the parking ticket beat and stake out Slick Lou's!

|8.8.05 @ 5:33PM|#

baisal, he was fulfilling my prophecy, joe will now suggest that i may as well be in favor of selling cars with jet engines attached to them.

M.J. Basial|8.8.05 @ 5:36PM|#

Yeah, but I figured he was doing it just for fun, the way Bob Dylan goes super-nasal to make meta-fun of people who make fun of him.

|8.8.05 @ 7:05PM|#

I'd be curious to see if Joe could actually provide an example of a case where this "Slick Lou" stuff was credibly alleged.

|8.8.05 @ 7:28PM|#

Who is paying for Slick Lou's missing guns?

If the manufacturer pays, why do they continue to ship to Slick Lou?

If Slick Lou pays, why does he continue to loose shipments? Is this an alternate universe where "guns of the street" command more than guns in gunstores? Every price I've ever heard for a gun on the street was much lower than retail.

|8.8.05 @ 8:46PM|#

You've all forgotten that under the Commerce Clause Congress has the power to do anything it wants.

|8.8.05 @ 9:27PM|#

It is a fact that blacks commit a dispraportionate amount of violent crime -- including murder. Blacks commit violent crime at a higher per-capita rate than gun owners.

Should victims of crime be bringing suits against the NAACP (and maybe the ACLU) in an effort to bankrupt them?

|8.8.05 @ 9:33PM|#

Or, what if gun dealers decided to refuse to sell to blacks, as a simple crime prevention measure?

Would a "No Negroes Allowed" sign in gun stores be appropriate?

|8.8.05 @ 10:23PM|#

Would a "No Negroes Allowed" sign in gun stores be appropriate?

Given the sordid history of gun control laws, in a sad way it would be historically appropriate.

Which reflects my low opinion of gun control, and should not be interpreted in any way as a criticism of black people.

|8.9.05 @ 9:23AM|#

Something perhaps we can all agree on: Bob Barr should be kept far far away from all guns.

http://www.cbsnews.com/stories/2002/08/07/national/main517784.shtml

"An antique .38-caliber pistol accidentally discharged as it was being handled by U.S. Rep. Bob Barr during a reception in his honor. ..."

Oh, it's unloaded? Well, then, I'll just pull the trigger ...

|8.9.05 @ 9:44AM|#

Isaac, geek, I don't question that Slick Lou would still be legally exposed under this bill.

My question was about his supplier - should a manufacturer or wholesaler who knows about Slick Lou's inventory tracking issues have any legal exposure for continuing to sell to him?

And I have no idea how common this situation is.

|8.9.05 @ 10:35AM|#

Girth, you are free to manufacture your own firearms

Comment by: joe at August 8, 2005 04:12 PM

Really????!!!!!

|8.9.05 @ 10:37AM|#

Dead Eye Dick-

I read somewhere that most accidents happen with unloaded weapons. As in "I thought it was unloaded!"

|8.9.05 @ 11:13AM|#

thoreau:

The most common are:

1) Remove magazine but don't take the round out of the chamber. This is the one that gets kids who look like they are old enough to know better.

2) Doing other things with finger on trigger. Several cops in Louisville shot themselves in the leg because they didn't take the finger off the trigger when holstering their Glocks. Of course, LPD determined that it was a design flaw of the Glock that it fired when they pulled the trigger. You also have to watch sypathetic hand squeeze. Imagine opening a door with one hand while holding a pistol in the other. If you encounter unexpected resistance on the door hand, you pistol hand tends to clench sympathetically. Bang.

|8.9.05 @ 11:33AM|#

Something perhaps we can all agree on: Bob Barr should be kept far far away from all guns.
http://www.cbsnews.com/stories/2002/08/07/national/main517784.shtml
"An antique .38-caliber pistol accidentally discharged as it was being handled by U.S. Rep. Bob Barr during a reception in his honor. ..."
Oh, it's unloaded? Well, then, I'll just pull the trigger ...

Comment by: Dead Eye Dick at August 9, 2005 09:23 AM

Bob Barr was the only person in that room professional enough to handle that weapon.

|8.9.05 @ 12:43PM|#

LPD determined that it was a design flaw of the Glock that it fired when they pulled the trigger.

When else would a gun fire?

|8.9.05 @ 1:27PM|#

thoreau:

That would be sarcasm. Rather than accept that their training around finger discipline was crap, they blamed the gun for going off when they holstered the thing with finger on trigger (which is the same as blaming the gun for going off when you pull the trigger).

|8.9.05 @ 1:42PM|#

Isaac, geek, I don't question that Slick Lou would still be legally exposed under this bill.

Ok, good.

My question was about his supplier - should a manufacturer or wholesaler who knows about Slick Lou's inventory tracking issues have any legal exposure for continuing to sell to him?

My question would be why would the cops even bother to call a manufacturer? It's a local police matter, and as pointed out above, if they aren't receiving payment for a case of firearms that "fell off of the truck" then it's unlikely they'd continue to sell to Slick Lou. I'm not aware of law enforcement ever contacting a manufacturer in order to pressure them to stop selling to a particular dealer. Though generally the manufacturer is the first point of contact for law enforcement when a gun is recovered at a crime scene.

And I have no idea how common this situation is.

No offense, but the only place I've seen anything like this is in your hypothetical situations. It's a bit like saying that you should have meteor insurance because there's a chance that a meteor will fall from the sky and strike you in the head.

|8.9.05 @ 1:48PM|#

I read somewhere that most accidents happen with unloaded weapons. As in "I thought it was unloaded!"

YES! This is why the first rule of gun safety is to always assume a firearm is loaded at all times.

Jeff Cooper's Four Rules of Gun Safety

To that end, I think that Mark Twain has written the best illustration of this:

"Don't meddle with old unloaded firearms. They are the most deadly and unerring things that have ever been created by man. You don't have to take any pains at all with them; you don't have to have a rest, you don't have to have any sights on the gun, you don't have to take aim, even. No, you just pick out a relative and bang away, and you are sure to get him. A youth who can't hit a cathedral at thirty yards with a Gatling gun in three-quarters of an hour, can take up an old empty musket and bag his mother every time at a hundred. Think what Waterloo would have been if one of the armies had been boys armed with old rusty muskets supposed not to be loaded, and the other army had been composed of their female relations. The very thought of it makes me shudder."
- Advice to Youth speech, 4/15/1882

|8.9.05 @ 2:01PM|#

And I have no idea how common this situation is.

"This situation" is probably about as common as some conservative's straight kid "catching the gay" because a gay couple moved in down the block. I'm sort of wondering where you got this hypothetical situation, since it has the same hysterical ring as mine. Or are you just trying to start an urban legend?

mediageek, by coincidence my newsletter from BATFE arrived in yesterday's mail. Its regular arrival reminds me of the breadth and depth of regulation of fiearms. I don't think joe has any idea how much "Slick Lou's inventory tracking" is dictated by BATF. There is probably no item available to the general public that leaves more of a paper trail than a firearm.

|8.9.05 @ 2:25PM|#

But Isaac, don't you realize that even Teddy Bears are more heavily regulated than guns? Why, won't somebody please think of the chilllldrrruuuuuuunnn!

I hate to say it, but most of joe's posts about guns start with some sort of misapplied stereotype and then go on to build a macro-world viewpoint from them.

|8.9.05 @ 2:47PM|#

mediageek, actually, in all fairness, I have to say that joe is a whole lot more reasonable on gun issues than a lot of other folks I encounter. Of course, the fact that that is true doesn't comfort me that much.