This month in G&A Magazine

SECOND AMENDMENT

A Shot Across The Bow

Only in America would you need to pass a law to enforce a law. But that is the situation gun opponents have created by filing dozens of pesky lawsuits against law-abiding gun manufacturers and dealers.

In order to remedy this Kafkaesque state of affairs, Congress is prepared to enact the Protection of Lawful Commerce in Arms Act. It is sponsored by some of the most ardent Second Amendment backers in Congress, including Sen. Larry Craig (R-ID) and Rep. Cliff Stearns (R-FL). The bill (S. 397/H.R. 800) has hundreds of co-sponsors in the Senate and the House and is likely to pass easily.

In 2004 the same bill passed the House without amendment. However, when it came up on the Senate floor, it was killed by so-called "poison pill" amendments. Sen. Dianne Feinstein (D-CA), the perennial scourge of the Second Amendment, attached an amendment to revive the execrable assault weapons ban, which expired in September 2004. Other antigun amendments were added by the usual cabal of Congressional gun-banners. The final bill was so grievously flawed that President Bush wisely decided not to sign it. The Lawful Commerce bill was shelved until the next Congress.

The Lawful Commerce bill would protect the firearms industry against the type of ridiculous lawsuits filed by former vice presidential nominee John Edwards and other wealthy ambulance-chasing lawyers. Under the terms of the legislation, individuals and municipalities would be prohibited from filing suits against law-abiding persons or companies involved in the firearms industry. If a firearm is defectively designed or manufactured, the gunmaker could be sued for any harm caused by the firearm. The firearms industry would not be responsible for so-called third-party use of a properly functioning weapon against another person.

Passage of the bill would reaffirm the principle of personal responsibility for the appropriate use of products. There are countless products manufactured in this country that could kill or injure someone if they are not used properly. If the product is not defective in design or manufacturing, the individual user bears full responsibility for death or injury caused by the incorrect use of the product.

The firearms industry in this country is not flush with cash. The manufacturing and sale of firearms only produces about $1.4 billion in annual revenue. Consequently, the industry cannot long afford to shell out more than $200 million, as it has over the last several years, to defend against bogus lawsuits. Of course, the gun opponents are well aware of the gun industry's financial predicament. They figure that more frivolous lawsuits might eventually bankrupt the firearms industry. Even if these petitions have no merit, the industry must still pay enormous legal fees in order to fight the suits in court.

Gun opponents argue that the Lawful Commerce legislation would confer special liability protection on gunmakers. But Congress has already granted similar protection to light-aircraft manufacturers, food donors, charitable volunteers, health officials, medical-implant manufacturers and antiterrorism-technology developers. In addition, 33 states have laws that prohibit municipalities from filing liability suits against the gun industry.

Unlike the assault weapons ban repeal, the Bush Administration firmly supports the Lawful Commerce in Arms Act. Last year, the Office of Management and Budget issued a Statement of Administration policy that endorsed the legislation:

"The manufacturer or seller of a legal, nondefective product should not be held liable for the criminal or unlawful misuse of the product by others… At the same time, the [Lawful Commerce] legislation would carefully preserve the right of individuals to have their day in court with civil-liability actions."

President Bush offered his personal endorsement of the gun-liability bill:

"[The Lawful Commerce in Arms bill would] help curb frivolous litigation against a lawful American industry. The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system."

As one might expect, the gun-banners have vigorously attacked the Lawful Commerce in Guns legislation. "[The bill] would protect from legal accountability the most reckless gun-sellers in America," says Dan Henigan of the Brady Center. "Why does the gun industry deserve special protection?" Special protection is needed because the gun industry has been the target of unrelenting legal assault for almost 10 years. At least 33 municipalities have sued the industry, and lawsuits have been filed in at least 17 states and the District of Columbia.

Fortunately, the legal system has thus far been skeptical of many antigun arguments. In one recent case, the California Appellate Court unanimously upheld a lower court's decision to dismiss lawsuits filed by 14 California cities, including Los Angeles and San Francisco. The cities claimed that gun dealers were "unfair, deceptive and fraudulent" and that they had caused a "public nuisance" by encouraging criminal use of firearms.

In Illinois in 1998, undercover Chicago police officers ran a sting operation against a number of suburban Chicago gun dealers. The bogus buyers told the gun dealers that they were gang members or intended to provide guns to gang members. But because the gun buyers were, in reality, police officers, the mandatory prepurchase criminal-records checks came back clean. The undercover cops paid for their guns and walked out.

Chicago has a complete ban on handguns within the city limits. It also has a very high gun-crime rate. The city set out to prove in court that law-abiding suburban gun dealers, not criminals, were largely responsible for the massacres that routinely occur in the Windy City. Chicago city lawyers even had the audacity to ask the court for $433 million to cover the cost of arresting gun criminals and providing emergency medical services to their victims.

The Illinois Supreme Court dismissed the lawsuit against such major gunmakers as Beretta, Smith & Wesson and Ruger, as well as the suburban gun dealers. Judge Rita Gorman wrote the majority opinion:

"The mere fact that the defendants' conduct in their plants, offices and stores puts guns into the stream of commerce does not state a claim for public nuisance. It is the presence and use of guns within the city of Chicago that constitutes the alleged nuisance..."

Chicago Mayor Richard M. Daley called the court decision "very disheartening." He added:

"More drug dealers and gang bangers are buying more guns. It has nothing to do with the Constitution, and it has nothing to do with hunters and sportsmen and collectors. It's a safety issue. If prescription drugs and the auto industry can be regulated, the gun industry should be as well."

More than 20,000 gun laws already constitute plenty of regulation. If drug companies, automakers or gun manufacturers produce defective products that harm people, then they should be hauled into court, but customers have a responsibility to use the products as they were intended to be used.

The case of Merrill vs. Navegar involved the 1993 murders committed in a San Francisco high-rise office building. A deranged individual entered the building and began firing two TEC-9 high-capacity guns. Eight people were killed, and six were wounded.

The victims and their families sued the Navegar Company, manufacturer of the TEC-9. The suit alleged that Navegar made the weapons available to the general public even though the company supposedly knew that the TEC-9 had no legitimate sporting or self-defense use. Navegar was also accused of highlighting the "assault weapons" features of the TEC-9 in its advertisements.

In 2001 the California Supreme Court dismissed the case. The court said the victims had not proven that Navegar used negligent advertising or that the gunman had seen the advertisements. The court also said that the lawsuit was essentially claiming "design defects" in the TEC-9, even though all of the weapon's features were part of the design and, therefore, not defects.

As these and other similar cases indicate, the gun-banners have been having a streak of bad luck with the judicial system. With the passage of the Lawful Commerce in Arms bill, the options for undermining the Second Amendment will dwindle further. State legislatures may present some opportunities for anti-gun mischief, but the NRA and the Congressional Sportsmens Foundation are already playing and winning the ground game at state and local levels.

The "Brady Bunch" and their kindred spirits will most likely bide their time and wait for a more favorable political climate to develop. The 2006 Congressional races offer some hope for the radical disarmers. The president's party historically loses seats in Congress during midterm elections. The Republican margin in the House is fairly narrow, so there is at least a remote chance the Democrats will regain control.

The dyed-in-the-wool gun haters will never abandon what they believe is their sacred mission to eliminate all privately owned firearms in the country. The antigun movement is savvy and patient; it will be back in force.

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