A basic function of law in a civilized society is to allocate the costs of harm to those who caused it. In the case of a gang shooting or terrorist attack, penalties are imposed on the gang member or terrorist. But what of the person who sold them their weapons?
In 2004, relatives of eight people shot in the Washington-area sniper attacks received $2.5 million from the maker and seller of the rifle used in those shootings. That was a matter of simple justice. But the gun lobby had no use for that kind of justice. They went to work and, the next year, Congress passed the Protection of Lawful Commerce in Arms Act, severely reducing the legal liability of gun manufacturers, distributors and dealers for reckless acts that send guns to the black market. The National Rifle Association called it “the most significant piece of pro-gun legislation in 20 years.”
This kind of legislation encourages arms dealers to turn a blind eye to the lethal consequences of what they peddle, and rewards their breathtaking irresponsibility.
An executive at one top gun company admitted that it didn’t try to learn whether the dealers who sold its firearms were involved in the black market. “I don’t even know what a gun trafficker is,” he said in a court deposition reviewed by The New York Times.
The 2005 law is just one example of congressional actions that have reduced gun-industry liability and gutted consumer protections. The result of all this legislation, as Jonathan E. Lowy, director of the legal action project at the Brady Center to Prevent Gun Violence, has noted, is that a defective BB gun can be recalled, but not a real gun with a similar defect.
What is at stake? According to the most recent data, between 30 and 40 percent of gun acquisitions take place without any background check. Many of these transactions happen online, at gun shows and in private homes. Each of those guns represents a potential danger to the public. Following the elementary-school massacre in Newtown, Conn., in December, there was overwhelming support to end unsupervised gun sales. The NRA fought back and, as everyone knows, won.
More tragedy will result. A mountain of research has proved this danger. One study examined the consequence of Missouri’s foolish decision to repeal a state law requiring residents to obtain a gun permit before purchasing a gun. A result of repealing the law? Without background checks, more guns fell into the hands of criminals, and the homicide rate in Missouri spiked 25 percent, even as violence declined across the United States.
And while gun violence touches every segment of society, it does not do so uniformly. According to the Centers for Disease Control and Prevention, African-Americans are 70 percent more likely to be killed by gun violence than are whites - though black-on-black violence rarely makes headlines. One wonders whether our nation’s legislators would be equally comfortable excluding the gun lobby from liability if more of them had to raise their children on the South Side of Chicago or in other inner-city neighborhoods plagued by gun violence.
There is a basic principle of law that imposes liability when someone’s unreasonable act results in foreseeable harm to someone else. It is a wise and ancient rule, as fundamental as the principle that my right to swing my fist stops somewhere short of your nose.
In a 1999 case, Jack B. Weinstein, a federal judge in Manhattan, wisely articulated that principle as it should apply to handgun makers. “The duty of manufacturers of a uniquely hazardous product,” he wrote, is to “take reasonable steps” that would “reduce the possibility” that firearms would “fall into the hands of those likely to misuse them.” That basic principle was gutted when Congress caved to the gun lobby and passed the 2005 immunity law.
The 2005 law also deprived New York and other states of their right to protect, or at least compensate, their citizenry by imposing civil liability on those manufacturers and dealers who failed to take reasonable steps to prevent the abuse and illegal trafficking of their weapons.
While the nation continues to debate the issue of background checks - a cause to which Gabrielle Giffords, the former representative from Arizona who was grievously wounded in a mass shooting in 2011, has dedicated herself - Congress should act decisively to restore responsibility and end this unique legal protection for the gun industry. Until it does so, there will be no incentive for the industry to act reasonably.
Decades ago, the tobacco industry hired doctors to plug the health benefits of cigarettes, and the auto industry claimed that seat belts were an unnecessary extravagance. The results were an epidemic of deaths, followed by civil lawsuits, followed by industry reform.
Today, smoking is down and cars are safer. In part, we have the market to thank. When these industries acted irresponsibly, basic principles of civil liability placed the costs of illness and accident where they belonged. Once their bottom line was affected, even the most myopic executives had to take notice.
I believe that with rights come responsibilities. By immunizing the gun industry from basic principles of legal liability, Congress kept the rights and repealed the responsibilities.
The Second Amendment right to bear arms is an important right. But the contours of that right must not extend to those who look away as their guns enter the hands of criminals and the mentally unstable. Congress should immediately repeal the 2005 gun immunity law, and let free-market incentives encourage responsible behavior by the gun industry.
Robert M. Morgenthau wrote this piece for the New York Times