Jurisprudence

Make Them Pay

Gun control activists must focus on fighting for the right to sue firearms manufacturers.

Students hold up signs saying things like, "Protect people not guns."
Local students protest in front of the White House during a nationwide student walkout for gun control on March 14.
Saul Loeb/AFP/Getty Images

According to research published in the American Journal of Medicine, Americans are 10 times more likely to die by gun than people in other developed countries. The Centers for Disease Control and Prevention reports there were 175,703 deaths by firearm in the United States between 2012 and 2016 while another 80,000 people per year suffered nonfatal firearm injuries. The pain and suffering and trauma suffered by bystanders to these deaths and injuries have not been documented.

Despite all this, very little activism in the U.S. focuses on holding gun manufacturers legally accountable for their wares. Gun violence protesters focus on school safety, background checks, mental health treatment, and gun training. While this is all well and good, the only demonstrated mechanism for decreasing injuries caused by dangerous products is to exert legal pressure on those who make and market them. The law can focus on manufacturers through specific regulation, products liability, or a combination of both. Smart activists and smart manufacturers should prefer products liability, perhaps eventually backed by federal regulation.

Let’s imagine the federal government and every state legislature were, right now, to pass statutes imposing specific safety features and marketing requirements for gun manufacturers. It would still take a considerable amount of time for administrative implementation of such statutes, not least because the National Rifle Association and some gun manufacturers would drag out the process for as long as possible. In contrast, were products liability suits against gun manufacturers clearly permitted under usual state law, individual shooting victims and their attorneys could initiate such suits immediately. Even before final judgments in these cases, a surge in claims would motivate manufacturers to begin research and development on how to manufacture safer guns and how to market firearms with greater care. Astute manufacturers should realize that responding creatively and sensibly to tort liability would slow or quell the demand for specific design and marketing requirements imposed by legislatures and agencies. Products liability leaves manufacturers more scope to use their expertise to craft and market guns without imposing excessive risk on the entire population.

At this moment, the products liability route is not a viable option for those victimized by guns. In the U.S., state tort litigation is the primary mechanism for holding manufacturers liable for injuries and deaths caused by products that lack reasonable safety features or are marketed without due care. Yet gun manufacturers are largely shielded from tort claims thanks to 2005’s Protection of Lawful Commerce in Arms Act, which, with few exceptions, bars victims of gun violence from suing gun-makers. For firearms manufacturers, who had already quashed almost all legislative efforts to regulate features that make some guns particularly unsafe, the PLCAA eliminated most of the remaining legal pressure to change how they make or market weapons. No other products manufacturer operates with such limited legal constraints.

Cars became more crashworthy, and hence less lethal and injurious, as a result of tort litigation and federal regulation. Cars are instrumentalities of death and injury, not because producers and purchasers intend this, but because cars are involved in crashes and crashes cause death and injury. Similarly, most of the people who buy guns do not intend to use them for suicide or homicide, but these outcomes can be expected when guns are in use. In the case of automobiles, the law tracks the recognition that cars can be designed and marketed so as to enhance crashworthiness. Damage awards and regulatory penalties have motivated automobile manufacturers to improve crashworthiness and to promote crashworthiness as a desirable feature. Over time, this has yielded major reductions in the rates of fatality and injury from car use.

A similar dynamic might well hold true for guns. They could be designed and marketed to minimize their excessive lethality and injuriousness while preserving their usefulness to legitimate users. We will never wholly eliminate homicide, suicide, and unintentional death by gun, but we might reduce their frequency.

Features that could make guns safer include identification technologies that make it difficult for anyone other than the gun owner to use the gun. Some of this technology exists. More and better versions of the technology would probably emerge if manufacturers had to pay when guns caused injuries that smarter weapons could have prevented. Manufacturers might redesign guns to leave out features that make them especially lethal or injurious. Firearms producers might even discontinue product lines that impose costs that outstrip their profitability.

All of the above occurred with cars. Faced with tort liability and regulatory specifications, vehicle producers developed seat belts, air bags, and many other features that protect drivers and passengers from the worst consequences of car crashes. They discontinued models such as the microbus, which were designed to increase interior space but, lacking a front end, exposed drivers involved in crashes to having steering columns pushed into their chests and to being thrust against or through front windshields. Automakers created minivans and SUVs, alternative models that provided interior roominess while reducing injuriousness. Were gun manufacturers pressed to seek alternatives to semi-automatic weapons, they might, as automakers did, invent versions of their products that reduce death and injury while preserving their most desirable features.

Shifting liability to firearms manufacturers and holding them accountable for their role in the outrageously high gun death and injury rates in the United States might even ratchet down some of the tension between gun control advocates and gun owners who feel vilified for purchasing and using a lawful product. If gun owners embraced guns made and marketed to increase safety, it would be difficult to cast them as fanatics, indifferent to the excessive dangerousness of guns.

Like auto manufacturers before them, gun manufacturers will object to legal measures pushing them to design and sell guns more safely. Car companies complained that nobody wanted safer cars, that car design and marketing were not significant sources of fatality and injury arising from car usage, and that the carmakers themselves would be driven out of business by litigation or regulation promoting or requiring crashworthiness or modified marketing tactics. None of these predictions held. Americans continue to buy cars now that they have all sorts of built-in safety features, features that have been increasingly refined by manufacturers to achieve appealing combinations of effectiveness and user-friendliness. Smart, driven firearms manufacturers should be able to achieve comparable results.

It may be a long time before legislatures directly regulate the design of guns. In the meantime, Congress should repeal the PLCAA and state legislatures should make clear that gun manufacturers are to be treated in court the same way as the producers of any other dangerous product. And those fighting against gun violence should demand legal reform that will seriously decrease death and injury by gun, not just measures that nip at the margin of the problem. It may feel politically safer to ask only for tepid laws, but tepid laws will not yield major gains in safety.