The Bill to Immunize the Gun Industry From Liability:
Why Every Senator, Pro- or Anti-Gun Control, Should Oppose It

The bill is shockingly simple. It is a mere nine pages long. The law is designed to protect anyone "engaged in the business" of firearms, meaning manufacturers, dealers, and distributors of weapons or ammunition. It grants this lucky group immunity from civil liability from suits brought under the common law, including claims brought under theories of negligence, products liability, and nuisance.

The law's reach is total—it prohibits such lawsuits in all 50 states as well as in the federal courts.

The House has already passed its version of the law, called the "Protection of Lawful Commerce in Arms Act," and President Bush seems eager to sign it. That leaves the Senate to block the bill, and it seems disinclined to do so.

That's a shame - for it is disappointing to see a Republican-controlled Senate display so little respect for an area of law that should be properly left to the states.

Why the Bill Is Radical: Taking Away Rights and Offering Nothing In Return

In order to appreciate the radical quality of this proposed law, one should think back on the September 11 Victims Compensation Fund, which I have discussed in this column on numerous occasions.

The Fund law made it very hard for victims to bring lawsuits against the airlines and other defendants. But it did not formally bar such suits. Moreover, and more importantly, when the Fund law took away, it also gave: Congress offered to pay families who waived their right to sue "full compensation" for their loss.

In every case that I can recall where the Congress has stepped in to remove the right to sue in its entirety - and in the case of the Fund law, where it simply made it harder to sue - Congress has offered something in return.

But in the case of firearms, Congress seems happy to strip away the right to sue and give victims nothing in return.

Is There a Case For Immunity For the Firearms Industry, and If So, What Is It?

Earlier, when Congress acted to interfere with state tort law, a plausible case could be made that there was a pressing national need—the subject areas were the aftermath of 9/11; childhood vaccines, nuclear power, and so on.

In the instance of the 9/11 fund, the justification for federal intervention was the scale of the national tragedy. In the context of asbestos - also the subject of a recent bill - it was the scale of the injury, which has lasted for over 50 years and involves intractably difficult questions of causation.

A similarly pressing national need ought to be implicated if the new gun industry bill is to be justified. After all - as conservatives ought to be the first to point out - our commitment to federalism, based both in the Constitution and in our history, places the burden of proof on anyone who would want to grant federal immunity against state tort liability.

Has this burden been met? The bill's proponents claim the firearms industry is being threatened by "junk lawsuits" and that the states are not doing enough to protect the industry.

Here are the lawsuits that they likely would deem "junk": A rash of lawsuits have been filed against manufacturers and dealers by cities and municipalities under a vast array of novel claims, including public nuisance, design defect, consumer fraud and negligent distribution. A lawsuit has been filed by the NAACP in federal court in Brooklyn, New York, that demands an injunction ordering the industry to control its wholesale distribution practices around the country, especially in the South. And a number of lawsuits have demanded compensation on behalf of individuals killed or injured by criminals who have obtained guns illegally, or by children who accidentally fired a gun.

But that leads to three important questions: Are suits like these really "junk"? If some are, is the state tort system failing to handle them adequately? Finally, if the states are not handling them adequately, what should be done?

A Lack of Evidence that State Tort Law Is Ineffective In Such Cases

First, some of the suits may indeed be, if not "junk," at least an unfortunate instance of presenting an argument to courts, that really ought to be addressed to legislatures.

The lawsuits by the cities and municipalities are especially doubtful. They seem to be based as much on a desire to imitate the successful assault by the states on the tobacco industry as they are on careful legal analysis.

Second, the state tort system seems entirely capable of sorting the wheat from the chaff. For one thing, many such suits are dismissed or fail on appeal.

Consider, for instance, the case before the U.S. Court of Appeals for the Second Circuit in which the Circuit certified to the New York Court of Appeals the question whether the handgun industry had a duty to protect victims of handgun violence from injury caused by the illegal trafficking of handguns. The New York Court of Appeals said no - and it did so on the basis of a very sensitive, nuanced analysis.

Meanwhile, other state and federal courts have approached the public nuisance theory with an equally sober and skeptical eye.

Clearly, though, the gun industry fears that not all states will be as intelligent and subtle as New York in addressing gun suits. But suppose it's correct - suppose some states do broaden the obligations of the firearms industry - and adopt novel (and to some, groundless) theories of negligence, products liability, or nuisance to do so? Is it really wise for Congress to step in to correct these "errors"?

To my mind, this is really the most important question: Should federal power be exercised so sweepingly? The Senate ought to focus carefully on this issue.

As I noted above, gun lawsuits do not share the scale, complexity, or national stature of 9/11 lawsuits or the behemoth asbestos litigation. They do, at most, share the same risk of a jury issuing an emotional - and indeed, irrational verdict.

But that point alone cannot enough for federal intervention, for many, many tort cases engage the heartstrings more than the intellect. No jury wants to deny recovery to a cancer victim, or the family of a brain-damaged infant, either, but malpractice cases continue to be litigated in state court.

The Unconvincing Defense of the Bill That Would Immunize the Firearms Industry

Their argument is that - unlike all previous attempts by the federal government to meddle with state tort law - the bill eliminates only those claims brought on frivolous, politicized grounds. It leaves standing "old fashioned" tort doctrines, such as negligent entrustment, and strict liability for manufacturing defects. Thus, it doesn't really monkey with the states' authority after all; it only makes sure they stay in their traditional bailiwick.

Well, not exactly. Even in the "old fashioned" tort doctrines, the bill changes state law. It would permit claims based on negligent entrustment to only be brought against sellers - not, say, manufacturers. And it would forbid products liability claims that claim a gun design is defective in that it makes it easier for criminals to obtain and use handguns.

In any event, even if the bill really did leave negligent entrustment, and products liability alone, that still would not justify its existence. It is not usually Congress's job to police what the "proper" boundaries of "normal" state tort law are. And that's a positive thing: The development of state tort law is a complex process. It is hard to believe that Congress is going to do a better job than the various judges, juries and legislatures throughout the land.

For all these reasons, let us hope that a majority of Senators from both sides of the aisle will have the courage to stand up and oppose the Protection of Lawful Commerce in Arms Act. Congress should only intervene in state tort law in an emergency, and then with precision and restraint. This is an extremist response to a problem that the states can handle.