The Lawfare Campaign against Gunmakers

By Kevin D. Williamson

Thursday, September 12, 2019

Police, prosecutors, and policymakers: All of them respond to incentives, just like anybody else. Gun control provides a textbook example of that.

It is remarkable how little our elite law-enforcement agencies and prosecutors are willing to do when it comes to policing the criminal use of firearms. The U.S. attorney for the Northern District of Illinois, whose office has responsibility for Chicago, has for years maintained a policy of refusing to prosecute most straw-buyer cases unless they are part of a larger organized-crime investigation, partly because those cases are a lot of work and partly because they tend to net a lot of sympathetic defendants, the girlfriends and grandmothers and nephews with clean records who buy firearms illegally for convicted felons. Local officials in Chicago and Illinois practically never pursue gun-trafficking cases: As ProPublica reports, between 2014 and 2017 Cook County authorities charged only twelve gunrunning cases and zero gun-trafficking cases. Chicago police made only 142 arrests for illegal gun sales over the course of a decade — and no arrests at all for gun trafficking. Of the many arrests for illegal possession of firearms, few led to prosecutions and fewer still to convictions. Similar stories play out less dramatically in jurisdictions around the country and in the federal system: Thousands of gun purchases are wrongly approved in federal background checks every year, but the ATF makes no effort at all to recover those guns.

There are reasons for that. The people who are driving Chicago’s sustained murder problem are young and mobile. Chasing them is hard work, catching them is harder still, and convicting them brings very little in the way of headlines or glory.

The companies that legally manufacture and sell firearms are a much easier target. They have fixed addresses and keep regular business hours. They also keep copious records, and they and their customers are — as even Daniel Webster, the Michael Bloomberg Professor of American Health and the director of the Center for Gun Policy and Research at Johns Hopkins University, confesses — considerably more law-abiding than the average American. Our police agencies police these law-abiding people and their businesses because they are easy to police.

Gun-control advocates target them for another reason. The first is cultural: From the op-ed cartoons to the rhetoric of Democratic presidential candidates, the face of gun violence in the United States is not that of the criminals who frolic on the streets of St. Louis or Chicago but the face of the NRA and sport shooters: white, male, middle-aged, middle-class, conservative, churchgoing, Republican-voting, and, preferably, for the purpose of caricature, a little paunchy. These are not criminals, but cultural and political enemies for the American Left, whose spiritual home is in Brooklyn and Silicon Valley, and in imitations of those from Austin to Portland. But there is another reason to target ordinary, law-abiding businesses in the firearms trade rather than, say, criminals: They have a lot of money. Nobody is going to get rich suing a car-trunk gun trafficker in Gary, Ind.

The Left is eager to drain gun manufacturers, and it has in mind the tobacco settlements of a generation past — lawsuits that would produce a multi-billion-dollar slush fund for left-wing activism, fund scores of activist groups, and create desirable full-time jobs for Democratic constituents administering the largesse. The effort kicked off in earnest in 1998, when Chicago mayor Richard Daley and Bridgeport, Conn., mayor Joseph Ganim launched lawsuits against a number of gunmakers, with Mayor Ganim making explicit what usually is implicit: The point of the effort was “creating law with litigation,” trying to achieve through judicial activism what Democrats had failed to achieve at the ballot box and in the legislature. President Bill Clinton leaned on Smith & Wesson, which was dealing with lawsuits from several states and at the federal level, to accept an agreement that would have in effect forced all firearms dealers to accept new restrictions if they wanted to stock Smith & Wesson products. Andrew Cuomo, HUD secretary at the time and now governor of New York, promised ruination of any noncompliant business. Eliot Spitzer, who has not been heard from in a little while, promised that any holdouts would be bankrupted. Smith & Wesson signed under duress, but gun-rights groups reacted quickly, drafting what would become the Protection of Lawful Commerce in Arms Act (PLCAA).

The PLCAA is an often misunderstood — and misrepresented — piece of legislation. It does not grant the firearms industry any extraordinary protection from ordinary product-liability claims and similar actions. It simply codifies in statute the ancient legal-liability principle that one party is not ordinarily legally liable for the intentional criminal acts of another party. The PLCAA was necessary not because of the ordinary practice of tort law but because of activist judges’ willful departures from it. A firearms manufacturer remains entirely liable in the case of, e.g., selling a defective product, just as a firearms dealer faces liability for negligently selling a weapon to someone who is not legally eligible to purchase it. The PLCAA simply holds that if a manufacturer makes and sells a firearm legally, then that manufacturer is not responsible if a third party subsequently uses that firearm in a crime.

But the American firearm business is a $14 billion–a–year concern (down slightly under President Trump; the industry had no better friend than Barack Obama, under whose haughty gaze gun sales soared), and lawyers are an inventively devious bunch. The current strategy of gun controllers is to focus on marketing rather than manufacturing and sales, knowing that a friendly judge or two — they already found some in Connecticut — will try to clear the way. In March, the Connecticut supreme court ruled that families of those slain in the horrific massacre at Sandy Hook elementary school can sue Remington for its advertising. The marketing materials for the Bushmaster rifle used in that crime contained images of combat (the AR-style rifle is a cousin to standard-issue U.S. military rifles, aesthetically similar but functionally distinct) and such macho slogans as “Consider your man card reissued.” To be clear: The lawsuit is moving forward as a matter of unfair trade practices.

That is, of course, preposterous on the face of it. There is no evidence that the shooter in the Newtown massacre ever saw a Bushmaster advertisement, and neither the maker nor the retailer ever engaged in any trade at all with the shooter, much less unfair trade: The rifle used in the crime belonged to the murderer’s mother. Nonetheless, the court insisted that “it falls to a jury to decide whether the promotional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at their feet.” Remington has asked the U.S. Supreme Court to throw out the case under the PLCAA.

But the PLCAA itself is under attack. Connecticut Democratic senators Dick Blumenthal and Chris Murphy have tried and failed to repeal the law for years, and in June they submitted another bill to do the same. Elizabeth Warren, Kamala Harris, Kirsten Gillibrand, and Amy Klobuchar have co-sponsored the bill, and every Democratic-primary candidate who has taken a position on the PLCAA opposes it. (Representative Tim Ryan, D., Ohio, a no-hoper, voted for the PLCAA but has since evolved, as they say, on most gun-control questions. Andrew Yang proposes a system for fines on manufacturers when weapons are used in mass shootings.) If the PLCAA is repealed or diminished, it is a near certainty that every manufacturer of handguns and semiautomatic rifles sold in the United States — and, possibly, every maker of firearms sold in the United States, period — will be subjected to ruinous litigation. The Democrats will accomplish through legal chicanery what they cannot accomplish legislatively, activists and lawyers will grow rich, and the Bill of Rights will be gutted without so much as a vote in Congress.

Defending the PLCAA is necessary but not sufficient. What is most needed is to reestablish the ordinary legal standard that persons involved in lawful conduct are not responsible for the willful criminal acts of others. Which is to say: What is needed here is the rule of law.

And while we’re at it, the rule of law would not suffer one little bit if the federal authorities and the Democrats who run the big cities started enforcing the actual law on actual criminals, who do so much harm to so many communities.