How the gun industry bought itself immunity from the rule of law.
The unspoken context for this legislation—unspoken mostly because Democrats are afraid of the issue—is a sizable liability the industry was about to face. The gun-industry immunity act was a direct response to lawsuits filed in the last several years by more than 30 cities—including all the major cities in the country—one state attorney general (Eliot Spitzer of New York), and individuals harmed by gun violence connected, like the Malvo assault rifle case, to misconduct by gun makers, distributors, or dealers. These lawsuits are based, unlike previous litigation the industry faced, on conduct that facilitates easy access by criminals and youths to new handguns. The suits primarily used a traditional public-nuisance approach based on the theory that some (not all) within the industry are knowingly supplying and marketing handguns through distribution outlets—such as particular distributors and dealers and gun shows—that provide youths and criminals that easy access. A recent comprehensive study by the federal Bureau of Alcohol, Tobacco, and Firearms concluded that 57 percent of guns used in crimes were sold by only 1 percent of the dealers.
If the cities and individual plaintiffs had been afforded the opportunity to prove these allegations in court, the industry would have been in trouble—as well it should be for such reckless conduct. On average, 50 people are killed by handguns each day, and three or four times that number are seriously injured daily. These lawsuits claim—and the testimony of high-level industry insiders confirms—that the industry has been knowingly supplying handguns through distribution channels that feed the criminal and youth market.
The largest share of the handgun market, by far, is purchases by law-abiding people for self-defense, so it's worth wondering why the manufacturers would knowingly feed the crime and youth market when it amounts to a small share of their business. The depths to which people sink for personal gain, and the rationalizations sometimes offered, never cease to amaze, but more is at stake here than immediately meets the eye. The large self-defense market is driven by fear. Anything that increases fear—the school shootings at Columbine, the 2000 millennium computer scare, 9/11—increases the demand for handguns. The steady source for the fear that drives the handgun market is crime, particularly crimes committed with guns.
About half of the city suits not prohibited by state statutes (before the national legislation was signed, the industry had already gotten many state legislatures to exempt them from the usual state rules) have already surmounted motions to dismiss because they're not frivolous. The city gun suits, and some of the suits by individuals harmed, have fared much better than the state tobacco suits. New York City's suit would have gone to trial in late November.
The congressional sponsors of the legislation, the gun industry and the NRA, acknowledge that the immunity legislation was simply a reaction to these pending suits, and the immunity act specifically provides for dismissal of all of them. In other words, they went and asked a favor from Congress: Enact a law to make these troubling lawsuits go away. And Congress obliged.
All of this raises a constitutional issue that vitally concerned the framers. Before the Constitution was adopted, legislatures regularly intervened in pending lawsuits—indeed parties to lawsuits regularly raced right to the state assemblies to get legislation resolving pending or anticipated lawsuits in their favor.
Thomas Jefferson complained that this practice was becoming "habitual." James Madison rightly called it "legislative usurpation ... [that] must lead to tyranny." The Federalist Papers railed against it. And partly in response, the Constitution establishes separation of powers: Legislatures make laws of general application, executives enforce the laws, and courts decide cases between parties based on the law.
So, here we have a suspension of the rule of law for one industry, enacted by Congress and signed by the president to federally limit traditionally state-determined rules of tort liability: a law that intervenes in and decides the outcome of pending lawsuits. Other industries will surely recognize the utility of such legislation and will seek similar treatment when they are sued. Doubtless they will make some steep campaign donations to get it. And why not, since the rule of law appears to be suddenly up for sale?
David Kairys, a law professor at Temple University and a leading civil rights lawyer, is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer.