Another Step

26 March 2018

The gigantic March for our Lives event on March 24, 2018 was, perhaps, a watershed moment in American efforts to get some measure of control over gun violence and the all-too-frequent mass slaughter of civilians.  Those efforts have been mischaracterized as an effort to repeal the Second Amendment, but that is too simplistic a view. The Marchers did not seek to repeal or eliminate the right to keep and bear arms, set out in the Second Amendment to the Constitution as part of the Bill of Rights.  Rather, they seek universal background checks on all gun sales; raising the federal age of gun ownership and possession to the age of 21; a restoration of the 1994 Federal Assault Weapons Ban; and a ban on the sale of high-capacity magazines in the United States.

That there are, and should be, limits to the rights to keep and bear arms is self-evident.  No-one thinks that there is a Second Amendment right for individuals to own nuclear weapons.  Likewise, no one would give randomly loaded guns to five year olds. Thus, this national dialogue about the scope and extent of the reach of the second amendment is a legitimate part of the evolution of our society. Indeed, the ideas put forth as part of the March are neither new, nor revolutionary, and fall fairly within the first part of the Second Amendment – “A well-regulated militia…”

In this regard, the New York Times ran an interesting Op-Ed on March 24th,  “Stop Shielding Gun Makers,” by Brad S. Karp, and H. Christopher Boehning. In it, the authors point out an additional way to reduce gun violence: Repeal the law that prevents negligent gun manufacturers from being sued.  The law they are talking about is the “Protection of Lawful Commerce in Arms Act” (PLCAA), 15 U.S.C. §§ 7901-7903, which essentially prevents gun manufacturers from being sued when their guns are used to kill civilians.

As the authors note,

A bedrock principle of the American legal system is accountability for wrongdoing. Businesses that cause harm may be held legally responsible in a court of law. Through the imposition of financial liability, our legal system encourages businesses to reduce harm to consumers by making their products safer and disclosing the risks associated with their use.

Thanks in part to the accountability imposed by lawsuits, society knows more about the dangers of smoking, and tobacco companies market their products more responsibly. Automakers continually develop and install new safety features, and these innovations deliver results: From 1975 to 2016, the rate of motor vehicle deaths decreased by nearly half. While motor vehicle deaths have declined over the last two decades, firearm deaths have not: According to the most recent statistics from the Centers for Disease Control and Prevention, more people now die from firearms than motor vehicle accidents.

This disturbing reality exists in large part because, unlike other industries, gun manufacturers and sellers are shielded from legal accountability. . . The law bars most suits against gun manufacturers and sellers for the harm they cause, immunizing the gun industry from accountability for the tens of thousands of gun deaths that occur in the United States each year.

This is bad policy and a bad law, for two reasons.  First, it permits the carnage to continue; Second, it deprives gun makers of incentives to make their guns safer, and implement policies to prevent gun violence.

As to the first point, the authors note the following data:

A recent study shows that firearms are now the third-leading cause of death for children ages 1 to 17 and, according to C.D.C. data, the leading cause of death for 15- to 24-year-olds. Numerous scientific studies indicate that keeping guns in a home endangers its residents. Studies have also shown that guns in the home are far more likely to be used in criminal assaults, homicides, suicides and accidental shootings than in self-defense.

As to the second point, there are technologies that would make guns less easily used, when transferred from the original owner.  And sellers could be trained to identify psychotic people and others who should not purchase guns.  But this law removes incentives to work to minimize the slaughter that guns can cause.

After the Parkland shooting, American Outdoor Brands, Smith & Wesson’s parent company and the manufacturer of the weapon used in the Parkland shooting, announced that it would not “manufacture and market” products with additional safety features (including trigger-locking technology) and that it does not “invest in R. & D. in this area” because doing so would be “irresponsible.” Perhaps the repeal of the law would change this cynical narrative.

The N.R.A. claims that the law is necessary to keep gun manufacturers from going out of business due to baseless lawsuits. That is not true.  As the authors of the Op-Ed note, “our legal system has multiple checks to filter out lawsuits that lack merit. There is no reason for the gun industry to have special protections that are unavailable to other businesses that sell products that pose far less risk of harm.”  Repeal of this harmful law would let manufacturers be held liable when they should be; and that would pose the very real threat of economic harm to them.  In turn, that risk would motivate them to take all necessary steps to reduce the carnage which has seen so many American killed.

Repeal of this law would not be a panacea; probably nothing will prevent some level of gun violence, just as laws against murder do not prevent all murders.  But holding gun manufacturers accountable for their wrongdoing is a useful additional step that should be taken as our society debates the limits of the Second Amendment.