Remember S. 1805, the Protection of Lawful Commerce in Arms Act? It blocked most gun liability suits in federal and state courts. Back in March, the Senate rejected the bill, 90–8. Even its Republican sponsors turned against it, as did the National Rifle Association. That’s because wily opponents had added two “poison pill” amendments — the most important of which extended the ban on so‐called assault weapons. To the pro‐gun crowd, killing the assault weapons ban mattered more than killing the lawsuits, so the Senate killed S. 1805.
Now the weapons ban is history, and that means S. 1805 is a sure bet to be reintroduced in the 109th Congress — especially with increased Republican majorities in both chambers. Indeed, the National Shooting Sports Foundation, calls the bill “our number one priority.” Never mind that the industry’s Republican allies are professed champions of federalism, supposedly dedicated to reining in the bloated powers of the national government. Apparently, that principle is expendable when hardboiled, practical politics — that is, payback for the NRA’s electioneering — take precedence.
To be sure, the gun lawsuits are rubbish. Whether the claims are based on “design defect,” or “negligent marketing,” or a trendy legal theory known as “public nuisance,” courts across the country have done the right thing: They’ve concluded that gun makers are not responsible for the criminal misconduct of their customers. Of 33 lawsuits filed by various states, counties, and cities, 29 have been dismissed.
A Florida appeals court warned that Miami’s “frustration at its inability to regulate firearms … cannot be alleviated through litigation.” A federal judge characterized Philadelphia’s public nuisance claim as “a theory in search of a case.” New York state’s demands were denied because they would prevent gun makers from “engaging in activities … strongly controlled [and permitted] by various federal and state statutes.” The District of Columbia’s case was tossed with the pointed comment that it was “not a close question”; the case was fundamentally flawed, unpersuasive and “burdened with many layers of legal deficiencies.” And this year, on November 18, the Illinois Supreme Court unanimously dismissed Chicago’s claims, writing that the mere sale of guns is not a public nuisance.
Private claimants haven’t fared much better. In Hamilton v. Accu‐Tek, which involved a shooting by Mid‐East terrorists using stolen assault weapons, New York’s highest court unanimously held that gun manufacturers were not “realistically in a position to prevent the wrongs.” In San Francisco’s Navegar case, in which eight persons died, the California Supreme Court ruled that victims of gun violence cannot sue gun makers when criminals use their products illegally. And in the Ceriale case in Illinois, the state Supreme Court found that “the claimed harm is the aggregate result of numerous unforeseeable intervening criminal acts.”
Only in the D.C. sniper case has a gun manufacturer had to pay damages. After six people were murdered and several others injured, Bushmaster Firearms agreed to a mediated settlement for $550,000 (fully insured), but did not agree to change its marketing practices. Meanwhile, only four of 33 municipal lawsuits remain: Gary, Indiana; New York City (conduct remedies but no damages); St. Louis (on appeal from a trial court dismissal); and a handful of California municipalities (suing wholesalers and retailers, but not manufacturers). That certainly doesn’t sound like a federal crisis.
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. After all, 31 states on their own have now banned municipal lawsuits against gun makers. Moreover, some dealers that were forced out of business for selling guns to known criminals would not have been protected by S. 1805 in any event. And if a manufacturer were to shut down, another gun maker would no doubt satisfy any unfulfilled demand. As for government lawsuits resulting in higher gun prices, the states have done far worse by imposing taxes and other regulatory burdens without a peep from Congress.
Ultimately, the message for our judges and legislators is twofold. First, courts must continue to reject bogus claims instigated by anti‐gun zealots seeking to circumvent state legislatures. Second, Congress should keep its nose out of state tort law and reaffirm that our national government is one of enumerated, delegated and, therefore, limited powers.