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Gun manufacturers in the line of fire

For over 200 years, the 27 words that make up the Second Amendment have been at the heart of countless courtroom debates. Among them, the specific reference to a “well-regulated militia” has long created confusion among legal scholars who still grapple with its meaning and historical context.

That may soon change. In historic hearings before the U.S. Supreme Court this week, justices weighed the meaning of the Second Amendment and the rights of individuals to bear arms.

The court’s decision, expected later this spring, will widely be considered the most significant ruling on gun ownership since the amendment’s ratification in 1791—perhaps changing the legal landscape for years to come.

That makes George Nation’s research all the more timely. In the April issue of the Baylor Law Review, the Lehigh University law and business professor argues that gun manufacturers may be required to bear vicarious financial liability for the harm suffered by innocent bystanders who have been injured by the criminal use of their products.

“At odds with reality”

“Traditionally, gun manufacturers have escaped responsibility when it comes to the criminal use of their products,” says Nation. “The legal system essentially presumes that criminal activity is not to be expected and that manufacturers have no control over the use of their products.”

“But with more than two million handgun-related crimes each year, and some gun advertising clearly aimed at criminal users, this traditional presumption is at odds with reality," he adds.

Historically, manufacturers of properly functioning products have not been held responsible for injuries that may result from criminal activity. That conclusion is based on the fact that manufacturers do not control the use of their product and that criminal activity cannot be legally presumed.

Nation questions that assumption. “While manufacturers do not exercise absolute control over the use of their products,” he writes, “they do exercise significant control over the use through the decisions they make concerning design, manufacturer, marketing and distribution.”

The problem is exacerbated by the manufacturer’s pursuit of profits. Fairness dictates that if criminals can’t compensate victims, then it’s incumbent on manufacturers to realize the cost themselves.

Nation knows his argument is controversial, particularly given recent court activity regarding gun rights and the current presidential primary season. But he says his respondeat manufacturer doctrine is supported by traditional concepts of fairness and justice as well as economic principals of efficiency.

Gun debate takes center stage

Though provocative and timely, the issue hasn’t just been thrust into the national spotlight. According to the U.S. Federal Bureau of Investigation, 68% of all murders reported to police in 2006 were committed with a firearm. Statistics from The Center for Disease Control sound a similar warning; the center estimated the number of gun-related homicides in the U.S. to be well over 11,000 in 2005.

High courts continue handing down contradictory rulings on the financial liability of gun manufacturers. Just in the past half year, appellate courts in Indiana and Washington, D.C. have handed down opposite decisions involving the reach of the Protection of Lawful Commerce in Arms Act (2005).

That law prevents firearm manufacturers and dealers from being held liable for crimes committed with their products. It makes a few exceptions, however, for such things as criminal misconduct and actions for which they are directly responsible.

In the case of gun manufacturers, at stake is the future of the $2 billion firearms industry. The Second Amendment and, in particular, gun control, has come under particular fire this past year and has been the focus of this week’s landmark hearing, which pits those that believe the number of lives lost to gun-related violence is a tragic consequence of lax gun-control laws, versus others who claim an individual Constitutional right to own and bear arms.

Nation says that his proposed respondeat manufacturer doctrine may also be applied to other criminal products like radar detectors, weaponry, and alcoholic beverages.

“It’s really a legal question of fairness and justice,” he says. “If manufacturers can benefit from imposing greater risk on society, then they should be held financially liable when innocent bystanders are harmed by their criminal products that do exactly what they were intended to do.”

--Tom Yencho

Posted on Thursday, March 20, 2008

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