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The Myths and Truths about Gun Ownership

Firearms manufacturers should be financially liable for the actions of criminals who misuse guns.

Gun control advocates continue promoting lawsuits that seek to hold firearm manufacturers and sellers strictly liable for injuries resulting from the misuse, by third parties, of firearms that operate properly and have no defect in design or manufacturing. The purpose of such lawsuits is to achieve huge monetary judgments against firearms manufacturers and sellers, to drive them out of business, or force them to raise firearm prices beyond the budgets of most Americans.

The concept of using lawsuits to destroy a lawful and constitutionally protected activity violates long-standing American principles. Tort law, as Michael I. Krauss, a professor of law at George Mason University, notes, "is common law built up over hundreds of years of collective wisdom, by accretion, by courts, to deal with disputes between private parties. . . . The common law should not be arrogantly swept away to satisfy politicians' addiction to money."1

In New York Times v. Sullivan (376 U.S. 254, 1964), the U.S. Supreme Court held that civil lawsuits cannot be used to make it impossible for a free press to survive. That decision was based on the intent of the Framers, with respect to the First Amendment, that citizens should not be punished or suffer financially for criticizing public officials.

In his concurring opinion, Justice Hugo Black applied the principle to the right to keep and bear arms as well. Quoting "America's Blackstone," St. George Tucker, Justice Black noted, "Whenever . . . the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."

Plaintiffs may sue a manufacturer or seller of a product for compensation for injuries sustained because a product is defective, the defect poses an unreasonable danger to the user, and the defect caused the injury. A product may be considered "defective" if it does not operate as a reasonable manufacturer would design and make it, as a reasonable consumer would expect, or as other products of its type.

However, manufacturers cannot be held liable for injuries that occur merely because a properly operating product is criminally or negligently misused. Courts have uniformly held that some defect must exist in the product at the time it was sold, and that the plaintiff's injury must have been the result of that defect:

"The three necessary elements needed to properly state a good cause of action in strict liability are (1) that the injury resulted from a defective condition of the product, (2) that the defective condition made the product unreasonably dangerous, and (3) that the defective condition existed at the time the manufactured product left the manufacturer's control."--Riordan v. International Armament Corp., 477 N.E.2d 1293, 1298 (Ill. App. Ct.,1985)

Undaunted, anti-gun litigators and activists have tried to advance various "defectless" product liability theories alleging that firearm manufacturers and sellers are liable for injuries resulting from the misuse of firearms that are not defective. Under such theories, it is irrelevant that an injury resulted because a firearm was criminally or negligently misused. Firearms are alleged to be "inherently defective," because they function as intended. Manufacturers are alleged to be liable, because they should have known a criminal could misuse a gun. Firearms are alleged to be "socially unacceptable" products whose risk to the public outweighs their social utility.

Courts have correctly rejected these theories, noting that firearms are not defective if they perform as intended; that the purpose of firearms is understood by reasonable people; that the manufacture, sale and ownership of firearms is lawful and attempts to outlaw firearms have been rejected by legislatures;2 and that misuse of a firearm is an intervening factor when assessing blame for firearm-related injuries. The following court decision excerpts are on point:

"[I]t is for the Legislature to decide whether manufacture, sale and possession of firearms is [sic] legal. To date, manufacture, sale and ownership of [firearms] have been legally permitted."--Forni v. Ferguson, et al, 648 N.Y.S.2d 73, 73-74 (N.Y. App. Div. 1996)

"One should never point a gun at another, thinking it is unloaded. And one should never compound the felony by pulling the trigger. When these cardinal rules are violated, the victim has an airtight negligent suit against the shooter. He has no case against the gun maker."--Eichstedt v. Lakefield Arms, No. 91-C-832, slip op. at 14 (E.D. Wis. Apr. 22, 1994)

"[A] majority of the legislators thinks such a ban would be undesirable as a matter of public policy. The inference that the court should draw from this is clear: the legislature does not think handgun manufacturers act unreasonably (are negligent per se) when they market their product to the general public."--Richman v. Charter Arms Corp., No. 82-1314 (E.D. La., 1983)

In a 1998 case, an Oakland, California, family brought suit against Beretta U.S.A. Corp., claiming that the accidental shooting death of their son by a friend was the result of the absence of "personalized" or "smart gun" technology--which could prevent a gun from being fired by an unauthorized person. The case also incorrectly claimed that the firearm did not have a loaded chamber indicator and included inadequate safety warnings in the operator's manual. Beretta showed in its defense that the gun did have a loaded chamber indicator and that the gun owner had failed to follow the safety procedures outlined in the manual provided. By a vote of 9 to 3, the jury agreed with Beretta, finding that the gun had no defect and that included safety warnings were adequate. It found that the sole significant cause of the accident was the negligence of the gun owner and his son. --Dix v. Beretta U.S.A., Corp. #750681-9 (California Superior Court, Alameda County)

With "defectless" theories universally rejected by the courts, one anti-gun litigator recently conceived of an even more preposterous twist of tort law: "collective liability." Under this concept, lawsuits would be waged against all firearm manufacturers as a group, alleging that when a given firearm is misused, each manufacturer should pay a percentage of the total damages awarded a plaintiff, commensurate with its share of the firearms market.

In 1998, several cities starting with Chicago and New Orleans sued gun makers as a group for past sales that comply with existing gun laws. These cities are using the courts to sidestep the democratic process in order to enact de facto gun bans.

In March 2002, Boston became the first city to voluntarily abandon its baseless lawsuit against the firearm industry. Mayor Thomas Menino claimed the cost of going to trial was too high, and that the growing list of court rulings rejecting similar cases limited the "evidence" the city would be able to present. 3

Menino attempted to "spin" the failure of Boston's nearly three-year legal harassment campaign by claiming the suit forced gun makers "to take small steps to address our concerns." That allegation was swiftly challenged by the National Shooting Sports Foundation, Inc. (NSSF)--a defendant in the case. "No concessions were made in exchange for the city's actions," said NSSF's general counsel. "We are extremely pleased with the suit's dismissal, but it is unfortunate and inappropriate that Boston Mayor Thomas Menino mischaracterizes industry safety efforts as being prompted by the city's suit. The truth is that industry has been actively promoting nationwide safety efforts for decades, a fact previously acknowledged by the mayor."4

Unfortunately, some other cities don't seem to be learning anything from the repeated failures of the reckless lawsuit campaign, and even though the frivolous cases brought against firearms makers are a parody of tort law, the danger to the rule of law and to the Second Amendment rights of American citizens persists.

"[G]un makers and other industries have reason to be concerned about the unholy alliance between government and the plaintiffs' bar," Prof. Krauss writes. "Although the gun suits are based on different legal theories than the tobacco suits, they enjoy a common lineage. Both series of suits were concocted by a handful of private attorneys who entered into contingency fee contracts with public officials. In effect, members of the private bar have been hired as government subcontractors, but with a huge financial interest in the outcome. Imagine a state attorney general corralling criminals on a contingency basis, or private state troopers paid a commission for every traffic stop. The potential for corruption is enormous."5

1. Michael I. Krauss, Fire & Smoke: Government, Lawsuits and the Rule of Law, Oakland: The Independent Institute, 2000, p. 40.
2. The manufacture, sale and possession of firearms is legal under federal law and the laws of all the states. The constitutions of the U.S. and 44 states protect the right to keep and bear arms. Additionally, Congress has recognized the many legitimate uses of firearms. Section 101 of the Gun Control Act, re-affirmed in the Firearms Owners' Protection Act, states: "The Congress hereby declares that . . . it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes, or provide for the imposition of Federal regulations or any procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title."
3. Associated Press, "Boston First City to Drop Suit Against Gun Industry," March 27, 2002.
4. Hunting & Shooting Sports Heritage Fund press release, "Boston Abandons Lawsuit Against Firearms Manufacturers," March 28, 2002.
5. Krauss, p. 23.