Walter Olson is Senior Fellow at the Cato Institute and author of several books on litigation. He holds down the fort at Overlawyered. He has forwarded a column responding to the flurry of articles that appeared in the liberal press a few weeks ago opposing the federal law that bans certain gun lawsuits (the Protection of Lawful Commerce in Arms Act), led by the Washington Post. Since then the attacks on PLCAA have quieted down (reports suggest that gun-control groups are being asked to keep a low profile on the more controversial parts of their agenda) but the issue still lurks in the background and is likely to flare back up at some point.
Since the Newtown massacre various gun opponents, law professors and commentators have decried the Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 law that broadly protects gun dealers and manufacturers from being sued when the firearms they sell are later used in crimes. Writers in the Washington Post, Slate, the Huffington Post and The Atlantic assailed PLCAA as a Congressional giveaway to the National Rifle Association (NRA) and an obstacle to gun safety efforts.
But many of the criticisms misstate why the law passed by such wide margins, what it was meant to accomplish, and how it works. A closer look shows why today’s Congress, and even the Obama administration, are rightly hesitant to reopen the issues PLCAA settled eight years ago.
* No, the law doesn’t deprive Newtown parents of otherwise solid legal claims. Former Manhattan prosecutor Robert Morgenthau claims PLCAA’s bar on lawsuits against gun suppliers poses “an extra tragedy for the parents of the murdered school children in Newtown.” But with or without the 2005 law, no suit against long-ago dealers would have stood much chance of success in the case of the Sandy Hook murders: the firearm used by the shooter had long been lawfully owned by his mother. . Some lawyers have floated exotic theories about holding gunmakers liable for not inventing guns with biometric identifiers that would keep them from being fired by anyone other than their owner. But the chances for success on such a theory would be vanishingly slim with or without PLCAA.
* No, the law doesn’t abridge traditional common law rules. California Democratic Rep. Adam Schiff, who has introduced a bill to repeal PLCAA, claims Congress gave the gun business “immunity from liability under well-established common law principles.” Nope. PLCAA codified the common-law principles that have long applied in tort claims following shootings: if an otherwise lawful firearm has performed as it was designed and intended to do, its maker and seller are not liable for its misuse. (Exceptions permit liability in some situations where, e.g., a defendant has broken regulations or knowingly sold to a buyer intent on harm.) In other words, Congress acted specifically to preserve the law’s traditional handling of gun liability as against activists’ efforts to develop novel legal doctrine.
* No, the law doesn’t prohibit lawsuits that Congress expected to go forward. A Washington Post report in January claimed the law poses “unexpected hurdles” to victims of recent mass shootings, whose lawyers are supposedly “surprised” at its pre-emptive effect. At the time Congress passed the law, the Post concedes, big-city mayors had filed a wave of lawsuits on novel theories demanding (for example) that courts begin treating gun sales as a “public nuisance” . “But over the past eight years, the legal shield has increasingly been used to block a different stripe of legal action.” The Post’s implication that Congress intended to restrict only municipal suits, and not tort suits on behalf of individuals, is false. Lawmakers debated the question and chose to include both. One reason is that anti-gun strategists were actively employing individual as well as municipal suits in their nearly successful effort to bury gun makers under the costs of legal defense. An editorial complaining that the law banned both kinds of suits appeared on June 2, 2005 in (yes) the Washington Post.
* No, lawsuits aren’t a good way to distinguish “good” from “bad” dealers or gunmakers. Rep. Schiff claims re-starting lawsuits will somehow bring down only the “worst actors in the industry”. That’s not how it worked a decade ago, when litigators piled onto every kind of gunmaker, including those with the most admired safety programs and those with strong ties to police /military supply. Lawyers proceeded to deploy every theory and tactic that could maximize leverage to compel surrender. Then-HUD secretary Andrew Cuomo promised resisters “death by a thousand cuts”, while then-New York attorney general Eliot Spitzer pleasantly told Glock that unless it cooperated “your bankruptcy lawyers will be knocking at your door.”
* No, it wasn’t just an “NRA law”. We’re told that the law was “passed after intense lobbying by the National Rifle Association” (Post) backed by gun manufacturers who, the selfish cusses, wished to avoid being bankrupted by the legal onslaught. But the successful bill drew on a far broader coalition than that. It included a united business community — the Chamber, NAM, NFIB, National Association of Wholesalers-Distributors — which saw the gun-suit onslaught as the cutting edge of a movement to bypass the democratic lawmaking process and impose regulation through litigation on other industries. The general furor in the business community helps explain why the act had 61 Senate co-sponsors, including 12 Democrats and many moderate Republicans, and why it drew 59 Democratic votes on its way to passing by a 2-1 margin in the House.
* No, it’s not improper to focus legal defenses when one sector of society comes under focused legal attack. Rep. Schiff deplores PLCAA as a departure from liability rules “that apply to everyone else in society.” But the fact is that Congress routinely devises tailored liability rules — that is, decides who can sue over what — for particular areas of American life that range from community volunteer work to vaccination clinics to small-plane making to labor unions. Most of these institutions, unlike the bearing of firearms, don’t even rate their own mention in the Bill of Rights.
Notably, the Obama administration has thus far resisted urgings to sign up for an anti-PLCAA crusade. In fact, in an Alaska case where the 2005 law has come under challenge, Eric Holder’s Department of Justice is defending it as constitutional. And proposals to gut or repeal the act have thus far been conspicuously absent from the President’s package of proposed changes to gun law. Let’s hope it stays that way.