The Second and 10th Amendments Duke It Out

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The Senate is expected to vote this week on the Protection of Lawful Commerce in Arms Act, which would shield gun manufacturers from lawsuits that blame them for the damage caused by violent crime and other misuses of their products. As Walter Olson and Michael Krauss showed in their debate of this issue last year at PointofLaw.com, both supporters and opponents of the bill have credible constitutional arguments. (Also see the 2004 Cato paper on tort reform and federalism that Krauss co-authored with Robert Levy.) On the one hand, the lawsuits threaten to impose one state court's gun control preferences on the whole country, impinging on the Second Amendment and the powers of state legislatures. On the other hand, a federal law dictating outcomes in state civil courts threatens to undermine federalism.

I am increasingly persuaded that, as Krauss and Levy argue, the right approach is to wait and see whether the feared interstate consequences of the gun suits are likely to materialize, especially given the litigation's abysmal track record so far, which is due partly to state laws pre-empting such suits and partly to state courts that recognize groundless lawsuits when they see them. Dan Whiting, a spokesman for Sen. Larry Craig (R-Idaho), the chief sponsor of the federal pre-emption bill, told the Cybercast News Service "these frivolous lawsuits were threatening this small but important industry." At the same time, "Whiting noted that no court has ruled for the plaintiff" in any of the lawsuits by local governments. Private plaintiffs have been a bit more successful, obtaining a $550,000 settlement (not a jury award) from a gun maker last year in a case stemming from the 2002 D.C. sniper shootings. So far, however, the threat of nationwide restrictions on access to guns remains theoretical.

NEXT: The Post-Kelo Backlash Continues

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  1. From an idealogical standpoint, I should side with Ron Paul in not supporting this. However, the main problem isn’t with these cases against the gun industry actually being won. Simply the cost of defending themselves from this frivolous litigation is enough to seriously hamper the cash flow of most of these companies, and in some cases cripple them. It’s simply a legal variation of death by a thousand cuts.

  2. I’m watching the CSPAN coverage right now.

    Frank Lautenberg is an idot. He just basically said that american households shouldn’t have guns. Way to spell out your real intentions.

  3. Oh, and incidentally, there’s a rumor floating about that Feinstein may be allowed to attach either a ban or further onerous legislation on the ownership of .50 BMG rifles in exchange for not scuttling the bill entirely. My guess is that she’d attempt to have .50 BMG rifles redefined under the rules of the National Firearms Act. Again, this is just a rumour I’ve heard.

  4. I’m inclined to go along with Jacob on this one. The tort reform bill passed earlier this year should help us out. If they want to bring a class action, they have to go to federal court.

    MG is absolutely correct that the cash flow of most manufacturers can’t support repeated suits unless they get compensated somehow, though.

  5. mg:

    I’ve heard the same.

  6. Lautenberg says he’s “outraged” by the senate wasting time on this.

    Considering Hillary’s plea to the FTC, there are worse things the senate could be wasting their time on.

  7. For those without access to CSPAN2, or streaming media, there’s a concurrent thread being run at The High Road. Commentary and descriptions of what’s going on here.

    The thread has grown pretty fast, and since it’s mostly a running commentary, interested parties may simply want to jump to the last page or two.

  8. “Simply the cost of defending themselves from this frivolous litigation is enough to seriously hamper the cash flow of most of these companies, and in some cases cripple them.”

    How does this argument not apply to slip and fall cases? Collapsing truck tires? Should we ban those lawsuits, too?

    I’m uncomfortable with shielding selected industries from lawsuits for the same reason I’m uncomfortable with the Constitution’s limits on who can run for office – if you don’t think an immigrant has enough loyalty to be president, don’t vote for him, and make that argument during the campaign. The strength of a lawsuit should be determined by a jury. I don’t like the idea of telling free citizens in a Republic who they’re allowed to vote for, and I don’t like the idea of telling free citizens in a Republic that they can’t have their day in court.

  9. joe-
    The bottom line is that there is an organized attempt afoot by various anti-gun advocates to sue the industry into the ground, regardless of whether they have a legitimate case or not.

    No one is trying to force a de-facto ban on, say, SUV’s by suing the tire makers or car makers into oblivion.

    Again, the point hasn’t been to sue and win a case so much as to simply force the gun industry to burn through massive piles of money by forcing them into a legal defensive posture every time some person commits a tragedy with a firearm.

  10. Jesus H. Christmas, I had no idea Lautenberg was such a blow hard. I thought Teddy was all alone in that distinction.

  11. There’s nothing “constitutional” about state and local governments letting plaintiffs run roughshod over the most basic principles of tort law. Proximate cause is never satisfied in these cases; they are all frivolous. And if the states won’t protect defendant gun manufacturers, then it is entirely fitting and proper that Congress do it.

  12. mediageek, I can dig your concern about frivilous lawsuits, but you seem to be jumping for a cure that’s worse than the disease.

    Why not ban frivilous lawsuits, or implement John Edwards’ idea of disbarring lawyer who repeatedly file them? Why pass a law that would ban all lawsuits, including those that have merit?

  13. KipEsquire’s answer – that there couldn’t possibly be a legitimate lawsuit against a gun manufacturer – is politicized piffle.

    Why should anyone believe that, among the entire universe of industies in this country, gun manufacturers, and gun manufacturers alone, are incapable of ever acting in a manner that would make them liable for somebody’s injuries?

  14. mediageek, I can dig your concern about frivilous lawsuits, but you seem to be jumping for a cure that’s worse than the disease.

    Actually I see it more as an attempt at treatment using a bandaid.

    Why not ban frivilous lawsuits, or implement John Edwards’ idea of disbarring lawyer who repeatedly file them?

    Both ideas with merit, at least on their face, and to be honest, I don’t have a straight up answer simply because I’m too narrowly focused on my dog in this race rather than the whole thing overall.

    Why pass a law that would ban all lawsuits, including those that have merit?

    This has been a misnomer regarding this legislation right from the start. The gun industry immunity law specifically states that it is only for frivilous lawsuits with regard to guns. If an injury or death is caused as a result of negligence due to a shoddy product, this law would not protect them.

    So, if Person A shoots Person B with a Glock, and Person A’s family tries to bring suit against Glock the suit would be thrown out.

    However, if Person A buys a Glock, takes it to the range, and the pistol suffers a catastrophic failure that sends the slide flying through his eye socket Glock would not be immune from being sued because they made a faulty product that caused an injury or death.

  15. Why should anyone believe that, among the entire universe of industies in this country, gun manufacturers, and gun manufacturers alone, are incapable of ever acting in a manner that would make them liable for somebody’s injuries?

    They aren’t alone. Any industry that is consolidated enough can play this game. Many are.

  16. Chris Dodd seems to be holding his own in the blathering department.

  17. Joe, do people sue automobile manufacturers when their products are used in drive-by shootings, robberies, or drunken-driving accidents? are baseball bat manufacturers sued when their products are used in beatings and killings? ar kitchen knife manufacturers sued when their products are used in murders? These lawsuits against firearms manufacturers are for the sole purpose of putting them out of business. There is no validity to them. By the way, KipEsquire didn’t say there was never a legitimate reason to sue a firearms manufacturer and I don’t either. I believe the legislation is written to insure they aren’t sued because someone used their product illegally.

  18. Geek, you are stealing a base by flatly declaring that all of the lawsuits banned by the language must be frivolous.

    This law states that no action the gun maker (or supplier) takes when distributing weapons, short of a federal crime, can subject him to legal liability. If a gun dealer sells rifles to five known Klansmen in the middle of a race riot, even if he tells them to “Go get ’em, boys,” no jury will ever be allowed to hear the argument that the gun dealer was negligent in his behavior.

  19. Joe:

    I too am troubled by the interference with state cases, but it’s not correct that the bill would shield gun makers from all liability. It covers only suits that blame manufacturers (or distributors) for the misuse of their products by people who are not under their control–typically someone who uses a gun to commit a crime. It explicitly does not cover cases where there are allegations of negligence, a product defect, or a violation of the law by the target of the suit.

  20. Joe, that’s kind of strawman.

    There’s no place on 4473 that asks if you are or have ever been a klansman. Dealers aren’t required to divine intentions.

  21. At the time of the $550,000 settlement, the plaintiffs (along with Sarah Brady and all the other major gun-control groups) issued press releases crowing over what a great victory it was for their side.

    Bushmaster (the defendant in the case) was annoyed by this, and they could see the backlash building in the pro-rights community, so they put an essay on their web site explaining their logic in settling the case.

    Bushmaster saw that they could easily win the case if it was allowed to drag out in court. Their insurance company decided that the cost of the defense would exceed their liability, so they cut Bushmaster a check and washed their hands of the case.

    Bushmaster took the $550k and offered it to the families of the victims, to settle the case. They decided it was better to give the money to people who had suffered real losses than to waste it on lawyers (I think one of the stipulations of the settlement was that all the money go to the families; Bushmaster did not want Sarah Brady’s lawyers to get a cut and use that to fund more lawsuits.) It was a noble gesture, but unfortunately one that was never reported and will not be remembered. What will be remembered is that you can sue a gun manufacturer for a third party’s criminal action and take home a suitcase full of cash.

    jafager

  22. What we really need is a law that makes the manufacturers of ideas responsible for the consequences of their product.

  23. joe:

    Jacob pretty much nailed it.

    There is an exception in the law for negligence per se, which would, at least on my reading, mean that your hypothetical situation involving a racist gun dealer would not result in his being protected.

  24. I put the lawsuits on the same par as selling a guy a bottle of gin and getting sued because he goes out, gets drunk, drives his car off a bridge in Martha’s Vineyard and leaves his passenger to drown in the car.

    kmw,
    You’re right, Dodd can blather with the best of them.

  25. Jacob,

    “It explicitly does not cover cases where there are allegations of negligence, a product defect, or a violation of the law by the target of the suit.” I believe this is a misstatement – it explicitly does not cover cases where there are allegation of negligence IN THE MANUFACTURE OF THE PRODUCT. Other potentially-negligent acts, such as failure to secure, or irresponsible distribution, are covered by the law. In fact, covering these cases is the purpose of the law.

  26. So, what you’re saying is that if a couple of criminals break into a gun shop, loot the place of guns, and then shoot someone with those guns that the gun shop owner should be held liable?

  27. knw, “There’s no place on 4473 that asks if you are or have ever been a klansman. Dealers aren’t required to divine intentions.”

    No, but they can be subject to liability if a jury decides they should have known. This bill would absolve them of the duty to run their businesses in a responsible manner, which is the standard that applies to every other business in America (except those that have bought special protections from Congress).

  28. Joe, that’s hogwash and you know it.

  29. Oh, and incidentally, there’s a rumor floating about that Feinstein may be allowed to attach either a ban or further onerous legislation on the ownership of .50 BMG rifles in exchange for not scuttling the bill entirely.

    Well, these things always have delayed effective dates. If she succeeds, I will just have to do what I did when they went after assault rifles (bought one) and high-capacity pistols (bought one of those, too).

  30. OK, looking at the text, there is language exempting “negligence per se” and “negligent entrustment.’

    The “negligent entrustment” language, however, is pretty loose, and appears as if it could be evaded by using a straw buyer, no matter how transparent the ruse.

    Or, if a gun manufacturer ships to a dealer who sold 8 of the 10 guns used in mob murders, he should really know better, but the law would allow the manufacturer to claim that the dealer has the responsbility, the dealer could claim that the straw buyer has the responsibility…

  31. OK, I’ve brought this up before and people have responded, but I forgot who gave advice. So here goes again:

    I live in Maryland. I want to learn how to shoot handguns. Anybody got advice? I’ve read some of the usual advice for newbies and I know I need to take a good gun safety course and probably start with revolvers. Any advice on good gun stores or clubs or shooting ranges in Maryland? (DC area)

    (And yes, I know, everybody will tell me I should move to Virginia. My wife wants to live in Montgomery County because we have family here. That was the deal I made.)

  32. No, joe, the dealer wouldn’t claim that it’s the responsibility of the buyer.

    He would claim, and rightly so, that he didn’t know. Besides, straw purchases are a felony, and lying on a 4473, which directly asks about straw purchases is illegal.

    The way you want it would result in a world where any FFL could be sued for straw purchases made on his/her premises.

  33. mediageek,

    unfortunately, a great deal of joe’s arguments are hogwash – the only reason he gets any attention is that most readers here think that he makes these arguments out of conviction and looking for common ground out of disparate points of view. In fact he’s simply sniping at people who are unsure of their principles. I’ve been lurking for quite a while and I don’t think I’ve ever seen him concede an argument, even one he’s clearly lost.

  34. thoreau-

    Check out Packing.org for good state-by-state information.

    Also, pop by THR We’ve got members from all over the country, including a pretty decent number of people in Maryland.

  35. If software companies can be sued because their software allows illegal filesharing, why can’t gun companies be sued when their firearms are used illegally?

    Grokster doesn’t steal copyrighted material, people steal copyrighted material!

  36. What if a state wanted to make guns a strict liability item?

    AFAIK, this would be constitutional (?!?!?), but this federal law would seem to prevent a state from excercising it economic autonomy in that direction. I don’t see a 2d amendment problem, but I do see a 10th amd one.

  37. thoreau:

    My $.02 on learning to shoot: Ranges and clubs tend not to have very good instruction. You will get much more out of a dedicated handgun course at any of several dedicated firearms training facilities, and if you were planning on taking more than a single lesson, the price won’t even be that bad. I would consider taking a weekend trip to one of these.

    The Tactical Defense Institute in Ohio is an absolutely top notch facility run by very grounded, realistic guys. Call John Benner and talk to him. Tell him that you are new to the whole firearms thing. He has plenty of Glocks for students in your situation to borrow.

    My suggestion would be taking the Handgun I and II weekend. If you feel really ambitious, you can try the Handgun I-III long weekend, but I don’t recommend it for someone with no prior experience. You will be hard pressed to find anywhere that will get you comfortable and competent as quickly.

  38. I live in Maryland. I want to learn how to shoot handguns. Anybody got advice?

    Try the Izaak Walton league out in Gaithersburg. They still have a firing range there off Clopper Road as far as I know.

    Or you could call the NRA if that doesn’t curl your toes.

  39. Bah, bad link. Can’t get it to activate.

    http://www.tdiohio.com is the place.

  40. thoreau:

    BTW: Peter Janda is a MD based kydex holster maker who assistant instructs at TDI from time to time. He is from the Czek Republic and coordinated a training effort from TDI to the homeland. They trained police and military raid teams over there.

    You might be able to convince him to work with you locally. He can be reached through his website: http://www.findesigns.net/fin.html

  41. The gun companies should refuse to do business in or with any municipality or state that sues them or allows these suits. They’re not going to get “cop” credits for every positive use of their guns to offset any criminal use (although in many places it would be hard to separate the two). Let the police get their own imports or patrol using batons and harsh looks.

  42. Jimbo,

    “The gun companies should refuse to do business in or with any municipality or state that sues them or allows these suits.”

    This is exactly Barret’s response to LAPD misleadingly pushing for California’s .50 BMG ban that passed last year. See:

    http://www.barrettrifles.com/news.htm

    I wish more manufacturers had his attitude.

  43. OK, here’s the scenario I’m worried about.

    BoomBoom manufacturing ships firearms to Slick Lou’s gun shop. However, Slick Lou has a habit of “losing” part of the shipments sent to his store. At the same time, weapons that fall off the truck on the way to Slick Lou’s keep turning up in funny places. Like crime scenes. The local police send BoomBoom notices when this happens, and request that they stop supplying Slick Lou. But Slick Lou, being slick, always reports the missing shipments in a timely manner and keeps his license.

    So BoomBoom sends another shipment to Slick Lou, and whoops! one of the cases falls off the truck. Again. Except this time, one of the missing weapons ends up being used by Marco “The Snake” Franconi to shoot four fat guys in the back of Pizza Paradise.

    Under this law, BoomBoom can claim that they had no specific knowledge that a case of their weapons would be diverted to the Bruno Crew; they certainly had no specific knowledge that Marco Franconi would get hold of the gun; and they absolutely had no specific knowledge that Franconi would use one of their weapons to commit those murders on that evening in that place. All they knew was that Slick Lou kept putting in orders for that type of firearm, and his checks don’t bounce.

    The language in the “negligent entrustment” definition appears to exempt BoomBoom from any liability stemming from these activities, even though they had every reason, including reports from the police, where their weapons were ending up.

    The intent is clearly to prevent gun makers and distributors from being sued just because they made a weapon that was used in a crime, but the language in the statute appears to provide much broader immunity than that.

  44. Jason-

    I’ll look into Janda.

    Do you know any good training facilities closer to DC? Or a resource for identifying good facilities? A weekend trip to Ohio (with gas and hotel) is a bigger investment than I want to make early in my pursuit of the hobby. I recognize that good training is valuable, but I can’t help but think there’s an easier way to get started and still develop good, safe habits.

  45. Thoroeau-

    Check into the SIG Arms Academy It’s in New Hampshire, which is closer to you than Ohio. No idea what courses run, but I hear they do a good job, and I don’t think you’re required to use a SIG-Sauer.

  46. oops, sorry

  47. Kris-

    It looks like you were trying to paste a link. Is there some organization you had in mind that offers basic pistol courses? NRA, maybe?

    Incidentally, what do most people here think of the NRA as a resource for beginners? I’m not asking what you think of their approach to politics, I’m just asking what you think of the NRA as a resource for learning.

  48. thoreau:

    Nice, formal facilities, no. I would google NRA certified Virginia or just ask Peter for local suggestions if you can get in touch with him. He hasn’t been at any of the classes this year, so I hope he is doing well. Mind you, if you work with the guy, don’t follow his advice on how to take care of a gun. His theory is to buy cheap and shoot it until it fails with no maintenance. Then you can choose to buy a new one or clean it.

  49. mediageek:

    Sigarms is galactically expensive. They make you buy only lead free frangible ammo directly from them. ~shudder~

    thoreau:

    An NRA certified instructor is good for safety and pointing the weapon in the right direction. Beyond that, be careful. Many think they know more than they do, just like store owners.

  50. Thoreau,

    It was an NRA link I was pasting to. I certainly don’t necesarily agree with the NRA’s aproach to politics at all, but I think they are an excellent resource (Especially for beginers)for firearms education. They teach scrict safety, basic marksmanship, which is up to you to practice and improve upon, (or you can hook up with the instructors for practice & coaching, they provide the guns you provide the ammo & food) and info on guns in general (like which kind is going to best for your particular needs).

  51. BTW: http://www.nrahq.org/education/training/find.asp?State=MD&Type=BPistol

    I don’t know about any advanced marksman/combat stuff, (I’m not there yet) but I found the the NRA basic pistol course to be quite educational. Jason Ligon may be right about more advanced stuff, but he is definitely right about safety (they drill it in). I think they are run in chapters though, so who knows what the guy MD will be like

  52. I’m not sure if anyone mentioned this already, but the NRA panned the Raich decision in their mag this month. They’re quick to disavow any organizational opinions on medical mj, but worried about federal anti-gun laws if/when the Dems regain power.

  53. Thoreau-

    The NRA is really a fantastic resource. More than likely, there are a number of certified instructors in your area. Sometimes local gunshops will offer the NRA courses. This will go over the basics of safety, caliber, types of guns, marksmanship, and cleaning.

    Also, the NRA offers a number of competitive outlets as well, from Bullseye Pistol to Service Rifle and other events.

    For right now, concentrate on getting the basics down; The Four Rules of gun safety, the basics of marksmanship, and finding a pistol(s) that fits you. Just because someone tells you that a Sig/Glock/1911/CZ/etc. model is the best doesn’t make it so. Choosing a pistol is a highly personal endeavor, and the best way to find what you like is to try out as many different kinds as possible.

    Also, if you haven’t done much shooting, consider picking up a .22 LR pistol to start with, or in addition to a larger centerfire one. .22 pistols can generally be had rather inexpensively, the ammo is cheap, and the low recoil of the round makes it much easier to get the basics down. Of all of my pistols, my .22 target gun gets used the most.

    Sorry for the long post. Drop me an email if you have any questions or if there’s anything I can help you out with.

    Sigarms is galactically expensive. They make you buy only lead free frangible ammo directly from them. ~shudder~
    Ok, that settles that, then. I really only know the Sigarms Academy from having read things about it here and there. The Valhalla Shooting Club is the same way. When I did some shooting there, they required the use of frangible, nontoxic ammo. But that’s a small price to pay for being able to run through scenarios in a fully enclosed, 360 degree shoot house with motion-activated targets, theatrical lighting, fog, and sound.

  54. I’m not sure if anyone mentioned this already, but the NRA panned the Raich decision in their mag this month. They’re quick to disavow any organizational opinions on medical mj, but worried about federal anti-gun laws if/when the Dems regain power.

    This is a good sign. People seem to finally be coming around to the realization that the War on Drugs and the War on Guns are inextricably tied together.

  55. do people sue automobile manufacturers when their products are used in drive-by shootings, robberies, or drunken-driving accidents? are baseball bat manufacturers sued when their products are used in beatings and killings? ar kitchen knife manufacturers sued when their products are used in murders? These lawsuits against firearms manufacturers are for the sole purpose of putting them out of business. There is no validity to them.

    On the other hand, at common law in the US “dangerous instrumentalities” used to be subject to strict or absolute liability. True, a knives or and big sticks were never considered as dangerous instrumentalities (if I remember law school, I think lions were). However, one could make the case that guns, especially some modern guns, are more dangerous than knives or bats.

    This strict liability regime was not put in place just to put lionkeepers out of business. Rather, the theory is that liability follows the party who can: (1) compensate damage; and (2) control conditions under which the product is used and disseminated.

    For example, a private gun registry is probably preferable to a state or federal registry — and maybe the best approach to gun violence of all. Strict liability law could be used to incentivize gun makers to set up such a registry. They have the dough. They have the clout. Best of all, private parties are not restricted by the 2d amendment. They just gots no motivation as of yet.

    However, the bill under discussion seems to categorically pre-empt a state from picking up this traditional piece of common law autonomy. That is a federalism problem.

  56. Further to previous post:

    also, under a strict liability regime, gun makers would probably set up some insurance. This way gun makers could pool insurance premiums to pay off strict liability claims. Ain’t nuttin’ unConstitutional about that. Pretty economically rational.

    However, absent strict liability, this needed and sensible insurance system will not spring forth (at least on the private side).

  57. For example, a private gun registry is probably preferable to a state or federal registry — and maybe the best approach to gun violence of all.

    Notice how some of us keep referring to Form 4473?

    Yeah. That’s because when you buy a gun you have to fill one of these out and the dealer keeps it on record.

  58. mediageek at July 28, 2005 09:30 AM

    The dealer has to also record the transaction (acquizition and disposition) in a “bound book”, This bound book must be transferred to and kept by any successor to the licensee or surrendered to the BATFE if the licessee closes the business.

    Except for firearms that find their way into the black market thru theft or illegal dealing there is a chain that can be followed for every gun (since 1968) from the manufacturer to its current owner.

  59. Notice how some of us keep referring to Form 4473?

    No, MG. I said private gun registry. Don’t cite me to ATF docs! I am a libertarian and, yes, I am old enough to remember Waco.

  60. Isaac,

    What are your thoughts on the “they fell off the truck” loophole I pointed out above?

  61. Joe, believe it or not, the number of FFL’s who “lose” guns that end up in criminal hands is vanishingly small. Even if this law protected a dealer who knowingly transferred guns to prohibited persons (already a felony, if I remember correctly), it would still right the massive amounts of damage that have been wrought by these politically motivated lawsuits. Your argument boils down to an attempt to justify demolishing an entire industry because of a small number of criminal dealers.

    And here I thought that we left behind collective punishment in Kindergarten.

    The BATFE are sticklers for crossing i’s and dotting t’s, and hold a lot of power over FFL’s.

  62. No, MG. I said private gun registry. Don’t cite me to ATF docs! I am a libertarian and, yes, I am old enough to remember Waco.

    Well, if you cover one eye and tilt your head slightly, the whole 4473/bound book thing is a private registry. The documents are kept on record by the FFL, and the feds are prohibted from simply taking all of the records and archiving them.

    Of course, as was pointed out earlier, if the FFL goes out of business then his bound book and records must be given to the feds.

    *Shrugs shoulders*

    In the end, I don’t think that you should have to fill out any more paperwork for a firearm than for an inkjet printer.

  63. mediageek,

    “Your argument boils down to an attempt to justify demolishing an entire industry because of a small number of criminal dealers.” Actually, I just think they should fix the language in the “negligent entrustment” definition.

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