Fizzling lawsuits: guns in the courts

Reason, April, 2005 by Jacob Sullum

OF 33 GOVERNMENT-sponsored gun lawsuits filed since 1998, all but three have been dismissed. According to a tally by the National Shooting Sports Foundation, the main industry group, 17 of those dismissals (including six that resulted from state legislation) are final, while the rest are on appeal. The remaining three cases are in the discovery phase.

So far the courts have not bought the argument that gun sellers are guilty of "negligent marketing" that allows weapons to fall into the hands of criminals. In November, for instance, the Illinois Supreme Court unanimously rejected Chicago's lawsuit, saying the city's "assertions of negligent conduct are not supported by any recognized duty on the part of the manufacturer and distributor defendants." The court added that the city could not establish "proximate cause" because "the claimed harm is the aggregate result of numerous unforeseeable intervening criminal acts by third parties not under defendants' control."

The National Rifle Association (NRA) nevertheless is renewing its push for a federal law protecting gun makers and distributors from liability for crimes committed with their products. The NRA says congressional intervention is still necessary because the cost of defending against such lawsuits may force manufacturers to settle, regardless of the legal merits. Bushmaster Firearms, which made the rifle used in the 2002 D.C. sniper shootings, cited legal costs when it agreed last September to pay $550,000 to victims of the shootings.

But legal scholar Robert Levy, a senior fellow at the Cato Institute, argues that federal action is not constitutionally appropriate "unless and until Second Amendment rights are compromised." That has not happened yet, he believes, because "courts across the country have done the right thing," while "31 states on their own have now banned municipal lawsuits against gun makers."