Nuisance Suit

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Writing in yesterday's New York Sun, Reason contributor Walter Olson notes that a state appeals court has torpedoed New York Attorney General Eliot Spitzer's attempt to declare the gun business a public nuisance. New York is the only state to join the cities and counties trying to hold gun makers responsible for violent crime. As Olson points out, the prospects for Spitzer's lawsuit had looked poor since 2001, when New York's Court of Appeals unanimously rejected a private case based on similar claims.

Of the four appeals judges in Tuesday's opinion, only one thought [Spitzer had] managed to state a viable claim. As Judge George Marlow noted in his majority opinion, the theory that gun-selling is a nuisance, if accepted by the courts, would have no obvious stopping point: "Such lawsuits could be leveled not merely against these defendants, but well beyond them, against countless other types of commercial enterprises, in order to address a myriad of societal problems — real, perceived or imagined — regardless of the distance between the causes‚ of the problems and their alleged consequences, and without any deference to proximate cause." Moreover, Judge Marlow rebuked Mr. Spitzer's attempt to use litigation to achieve victories for the gun control lobby without the need for legislation: "Courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micro-manage the manufacturing, marketing, distribution and sale of handguns."

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