In his recent remarks supporting new gun control laws, Joe Biden said, “We should repeal the liability shield that often protects gun manufacturers from being sued for the death and destruction caused by their weapons. They’re the only industry in this country that has that kind of immunity . . . The gun industry’s special protections are outrageous. It must end.”
Along these lines, San Diego county supervisors recently voted to enable the county to sue gun manufacturers for deaths from firearms.
This is all supposed to sound perfectly normal and analogous to lawsuits addressing other products, including hot coffee, cigarettes, and dangerous toys. What’s one more? But, in practice, such liability would be highly unusual and also bankrupt the industry. And that’s the point.
Products Liability Law Makes Sense, In Theory
In the United States, product liability law evolved slowly. It began for sensible reasons to address the consequences of industrialization. It aimed chiefly to protect people from dangerous manufactured goods, such as exploding boilers and runaway trains. In a world with extended supply chains, liability eventually expanded to protect parties “foreseeably” affected by negligently designed or manufactured products, even if they did not have contractual “privity” with the manufacturer.
As the law developed, it incorporated a lot of commonsense rules limiting liability, such as “last clear chance,” “contributory negligence,” and “assumption of the risk.” Under these principles, you couldn’t prevail if you did not avoid harm when you had a chance to do so, when you were careless, or when the risk was obvious and you undertook it anyway. Far from a lottery giveaway, Anglo-American common law created rules and incentives to balance commerce with public safety.
Criminal misuse of a product is not the same thing as negligence or the distribution of a defective product. Baseball bats are hard, knives are sharp, and guns are deadly. They are all designed to be so. There is no defect in any of these cases.
While some laws have been approved to protect gun makers from novel theories of liability, these statutes simply codify the existing principles of tort law. We do not hold car makers responsible for those who speed, drive drunk, or otherwise injure others. We also do not hold makers of deadly tools—like knives and bats—responsible for the criminal misuse of their products, even though some such incidents are predictable and inevitable. Foreseeability limits the scope of legal causation; it is not a freestanding basis of liability.
The Gun Violence Myth
It is telling that Biden and the media so frequently talk about “gun violence,” focusing on the tool and neglecting other important factors including the soft-on-crime justice system, our toxic culture, and the actions of the criminals themselves. They rarely use this language in other contexts like “knife violence” or “baseball bat violence.” This usage prevails even though murders by knives, blunt instruments, and fists each exceed those from rifles of all kinds, including the much-maligned AR-15.
Further, in contrast to these other products, guns are highly regulated. They are distributed from manufacturers to Federal Firearms Licensees, who must conduct a criminal background check on every buyer of firearms. Felons, minors, drug addicts, and those who have serious mental health problems are not legally allowed to buy firearms.
Unsurprisingly given this regulatory climate, the vast majority of guns are never used in a crime. No doubt, some are. But criminals also find ways to obtain drugs and steal cars and do a great many other things they are not supposed to do. Laws are not magic.
A 2019 Department of Justice study reveals that the criminal element obtains almost all of their guns illegally, either by buying them on the black market, stealing them, or convincing their gullible girlfriends to buy them through an illegal straw purchase. While it may help to educate gun owners about the risks of leaving firearms in their cars and the illegality of straw purchases, what exactly are gun manufacturers supposed to do when someone steals a gun?
The law does not currently permit liability in the case of criminal misuse of a product—whether a bat, knife, car, or gun—because, when a product is used criminally, there is an intervening cause: namely, the criminal and his intent to commit a crime.
In the United States, there are now over 20,000 homicides every year, more than half of which involve firearms. The tens of millions in wrongful death liability for each criminal misuse of guns would quickly destroy the industry, not least with the costs of defense. While guns are popular, the gun industry is not particularly profitable; in fact, Remington just emerged from bankruptcy and the post-bankruptcy Colt company was recently acquired by the Czech company, CZ.
There are better means of dealing with criminals than imposing civil liability on the makers of guns, including locking up violent offenders for a long time and allowing them to be sued civilly for wrongful death. We do not, as a general matter, turn a manufacturer into an insurer for everyone conceivably affected by their products. Otherwise, McDonald’s would be bankrupt from its substantial contributions to heart disease, and car makers would have to pick up the tab for the tens of thousands of fatal accidents every year.
A Path To Industry Destruction
Of course, stopping crime is not the goal of this legislation. Crime will continue without a gun industry, just as there are crimes involving guns in places with restrictive laws like South Africa, Mexico, and Brazil. Rather, the goal of such lawsuits is to do what cannot be accomplished through legislative means: ending Americans’ ability to defend themselves, emboldening corrupt politicians, and increasing our sense of vulnerability and servitude.
There is some precedent for such runaway civil liability destroying an industry: the death of the domestic general aviation industry. A spate of products liability lawsuits in the ’70s and ’80s led manufacturers like Piper and Cessna to declare bankruptcy or cease production. This is why so many small planes are either really old (typically 40+ years) or made from kits, which through a legal fiction renders the kit assembler the “manufacturer” for the purpose of products liability law.
Restricting lawsuits against gun makers for the criminal misuse of guns is not some anomaly or form of special protection, and such lawsuits would have almost nothing in common with legitimate claims arising from defective products like faulty brakes, exploding blenders, or prescription drugs whose risks have been hidden from the public.
Holding gun makers responsible for gun crime would be a frontal assault on an industry, on our constitutional rights, and the broader principles of individual responsibility that undergird our legal system.