How to Get a Handle on Controlling Gun Violence

By SAM URETSKY

The Giffords Law Center says it perfectly: “With nearly every American industry and product, civil liability can be used as an important check on irresponsible manufacturers and sellers—but not the gun industry. When Congress passed the Protection of Lawful Commerce in Arms Act in 2005, our leaders made the gun industry immune from nearly all lawsuits, leaving families of gun violence victims without an avenue to seek justice.”

The Protection of Lawful Commerce in Arms Act begins:

1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

(3) Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.

The second assertion has been subject to considerable debate. Historically, the founders were afraid that a standing army would infringe on citizens’ right, and assumed that defense would be the responsibility of local militias. However, in District of Columbia v. Heller (2008), the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nation’s capital. This decision and the McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 5–4 vote. The decisions are lengthy but in the end they reach their conclusion by pretty much ignoring the part about “A well regulated Militia, being necessary to the security of a free State...”

In fact, the Second Amendment focused on militias. Article 1 section 8 of the Constitution made it clear that while Congress might raise an army, it was limited to a two year period. The founders were concerned that the central government might usurp the rights of the citizenry, and assigned control of firearms to the individual states. James Madison (Federalist 46) envisioned an armed militia as a guarantee that the people could resist a tyrannical government: “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

Basically, guns belong to a class of products that are considered unavoidably dangerous. These are products which are, by their nature, unsafe, but necessary, a group that ranges from steak knives to cancer treatments. Professor Joseph A. Page of Georgetown University wrote, “Where manufacturers might have eliminated unreasonable risks arising from the manufacture or design of a product, or from the information (or lack thereof) conveyed by a product’s labeling, the tort system traditionally has provided injured victims with an opportunity to obtain compensation for injuries attributable to these risks.” While this is true of most consumer products, as reflected by the number of lawyers’ ads on television, Congress, with the Protection of Lawful Commerce in Arms Act created the 00NRA – 00, as everyone knows, means a license to kill. Previously, the Dickey Amendment, a rider into the 1996 US federal government omnibus spending bill, was designed to bar the Centers for Disease Control and Prevention (CDC) from promoting firearms control. The money that had previously been spent on firearms research was left in the budget, but earmarked for other purposes. You can’t fix a problem if you don’t know it’s there.

While rival gun groups are trying to take over the NRA’s leadership position as a firearms advocate the NRA continues fighting against all forms of gun control, including the widely popular universal background checks. According to the NRA’s web site, “Background checks don’t necessarily stop criminals from getting firearms. Federal studies have repeatedly found that persons imprisoned for firearm crimes get their firearms mostly through theft, the black market, or family members or friends. Less than one percent get guns at gun shows. (Bureau of Justice Statistics)” Other groups, notably the Gun Owners of America, Second Amendment Foundation, National Association for Gun Rights and others argue, probably correctly, that background checks would be of limited value since guns can be stolen, given as gifts, inherited, or bought by straw purchasers. Beyond, how long would it take Congress to pass a law that might be effective?

But there is a good starting point, as proposed by Mary Callaghan, an astute Kentucky lawyer – repeal the Protection of Lawful Commerce in Arms Act and sit back. Level the playing field so that Remington and Colt, Smith & Wesson. and Sturm Ruger face the same legal liabilities as Ford, Boeing and Johnson & Johnson. It won’t solve the problem of firearms misuse, but the companies will have a motivation to be careful how their products get distributed. Think of all those lawyers on television – it’s a start.

Sam Uretsky is a writer and pharmacist living in Louisville, Ky. Email sdu01@outlook.com.

From The Progressive Populist, September 15, 2019

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