Imagine this: You’re in a church, or a school, or a concert, or a movie theater, and you hear gunshots. The next thing you know, you wake up in a hospital bed. You learn that you’re a survivor of a mass shooting, and that doctors spent hours removing bullets from your body. Soon, you’ll discover that the health care you’ve received so far will cost you thousands of dollars out of pocket, and that you’ve incurred injuries that will require pricey lifetime treatment. You then hear the details of the shooting. The gun that nearly killed you was an assault weapon marketed to civilians for its military-grade performance, it was designed to shoot many people in a brief amount of time, and its manufacturer supplied the weapon to a dealer notorious for selling firearms illegally.
Under centuries-old theories of liability, you should be allowed to sue both the manufacturer and the dealer for torts like negligence and public nuisance. You could then use that money to pay your medical bills. If you are hurt by a car or a prescription drug, after all, you are typically allowed to sue for damages. But thanks to a law called the Protection of Lawful Commerce in Arms Act, you have no legal remedy if you are hurt by a gun. In passing that law in 2005, Congress granted gun dealers and manufacturers legal immunity in all 50 states, the District of Columbia, and every U.S. territory. No other industry receives this privilege: Firearms are the only consumer products that receive federal immunity from tort liability.
In the United States, about 315 people are shot every day, and 222 of them survive. Mass shootings are becoming more common and taking more victims; 58 people were killed in the recent Las Vegas shooting, and more than 500 people were injured. These survivors are often saddled with enormous medical debt; the health care costs of gun violence totals about $2.8 billion a year. Thanks to the PLCAA, injured survivors of gun violence are frequently driven into bankruptcy. Given today’s political landscape, there is no hope of repealing it, and individual states have no power to abridge a federal law.
There is, though, something states can do. Legislatures should impose a new tax on gun dealers and manufacturers and place the revenue in a special fund. This fund should be used to cover the medical bills of gun violence survivors. The firearm industry is responsible for America’s crisis of gun violence. It should be required to pay for it.
* * *
Congress passed the PLCAA in 2005 at the behest of the National Rifle Association and other industry lobbyists, which insisted that firearm-related litigation had imperiled the gun industry. That wasn’t actually true; as a court later noted, the industry faced “no crippling recoveries,” and the NRA’s anxiety about budget-busting litigation had lacked “empirical support.” Still, Republican Idaho Sen. Larry Craig, the bill’s sponsor, insisted it was necessary to stave off catastrophe, and his GOP colleague Jeff Sessions urged his colleagues to protect the industry from “huge costs” resulting from “unjust lawsuit[s].” With some bipartisan support, the bill easily passed into law.
If there was no empirical support for the NRA’s claims, what was the group so frightened of? The answer is simple: The firearm industry feared becoming the next tobacco industry. In the 1990s, a supermajority of states, frustrated that tobacco-related illnesses were draining their Medicaid funds, banded together to sue tobacco manufacturers for violating various state laws, particularly consumer protection statutes. As the attorney general of Mississippi explained: “You caused the health crisis; you pay for it.” In 1998, the states entered into a settlement with tobacco manufacturers that required them to pay out $206 billion.
Around the same time, public health advocates started to describe gun violence as a public health crisis, and firearm manufacturers and dealers began to face a variety of tort suits. Individuals who filed these suits typically claimed that a manufacturer engaged in negligence by distributing to known “bad apple” dealers, or by irresponsibly marketing their products for unsafe and illegal use. Several individual lawsuits also raised product liability claims, arguing that manufacturers should have included safety features to prevent misuse. And many of these suits targeted dealers as well, alleging they sold firearms despite having reason to know the weapons would be used illegally. Dealers and manufacturers also faced municipal suits, which employed the same strategies that had been used against the tobacco companies. Cities argued that gun purveyors created a public nuisance by failing to take reasonable steps to prevent their weapons from getting diverted into the illegal market.
Gun industry lobbyists asserted that these suits were frivolous and unprecedented as they subjected gun sellers to civil liability even when they complied with regulations. But nothing about these legal theories was especially novel. It is a fundamental precept of American tort law that a seller can comply with all statutes and still be subject to civil liability if it engaged in negligence. For instance, a drug company can adhere to federal regulations but remain liable for negligence under state tort law. So can carmakers.
Through tort law, states may define what counts as negligence, and juries may then determine what conduct is reasonable and what’s unreasonable. The PLCAA wrested this power from both states and juries through a sweeping federal decree, blocking the firearm industry from virtually all civil liability. (The law has a few narrow exceptions, but they have proved virtually impossible to litigate.) There is no other federal law remotely similar to the PLCAA. It has allowed the gun industry, immunized from legal consequences, to play by different rules. For example:
- Many advertisements include disclaimers—think of a car commercial that depicts a dangerous stunt and warns viewers not to attempt it. The warning is designed to thwart civil liability. Thanks to the PLCAA, gun sellers need not include such disclaimers, as they cannot be sued for negligent advertisement. Ads for the weapon used to slaughter 20 children and six adults at Sandy Hook Elementary School touted that gun’s “military-proven performance” and included lines like: “Forces of opposition, bow down. You are singlehandedly outnumbered.” Parents of the Sandy Hook victims sued, alleging that these ads negligently encouraged improper use of the gun. A court dismissed their lawsuit, citing the PLCAA.
- James Holmes, the shooter in Aurora, Colorado, purchased at least 1,050 rounds of .40 caliber ammunition, 2,250 rounds of .223 caliber ammunition, and 25 rounds of 12-gauge shotgun shells from a single website, Lucky Gunner. The sale raised no red flags for the company. Families of Aurora victims sued, alleging that a seller who furnishes massive amounts of extremely dangerous products without inquiring as to their purpose might be liable under state tort law. The PLCAA blocked their suit—and a state law forced them to pay $200,000 in attorneys’ fees.
- About 5 percent of American gun dealers supply roughly 90 percent of guns used in crimes. The PLCAA makes it nearly impossible for victims of crimes perpetrated using these guns from suing the sellers for negligence. A plaintiff must establish not just that the seller was negligent, but that it had a demonstrable reason to know that a firearm it furnished would be used illegally. Few plaintiffs can meet this high bar. Gun dealers can also protect themselves by remaining willfully ignorant of their customers’ intentions.
Individual lawsuits blocked by the PLCAA present direct and specific injustices. But the broader problem with the law is that it thwarts a basic purpose of civil liability: the notion that an industry which causes some grievous harm to public health should partly compensate its victims. All told, gun violence creates about $2.8 billion in medical expenses each year. Shouldn’t the gun industry cover some of those costs?
Plenty of progressive states think so, and many Democrats would like to repeal the PLCAA. Republicans, of course, will not allow that to happen. Yet gun deaths in the United States are ticking upward—as are premiums thanks to the Trump administration’s attacks on the Affordable Care Act.
The solution here is for state legislatures to create a high but not exorbitant tax that applies exclusively to arms dealers and manufacturers, and to use that money to compensate victims of gun violence. This arrangement merely builds upon existing legal frameworks. Every state already has a crime victim compensation program, although not all victims are eligible and states impose strict caps on payouts. The average cap is $25,000, and most states impose lower limits on specific benefits like counseling. That $25,000 ceiling is much lower than the average jury would award to a victim of negligence, so these programs cannot plug the gap created by the PLCAA. Nor can civil suits against the shooters themselves, who are almost always too poor to pay jury awards. (By contrast, the American firearm industry made about $13.5 billion in revenue in 2015.)
Instead, states should consider the National Childhood Vaccine Injury Act as a model. Congress passed the NCVIA in 1986 in response to a raft of lawsuits against vaccine companies. It created a compensation fund for individuals injured by vaccines and was funded by a tax on vaccine sales. A special court now hears claims and awards compensation to victims. In addition, the NCVIA allows victims to maintain their rights to sue manufacturers under traditional tort law.
It should not be difficult for states like California to borrow this idea and create a fund for gun violence victims. Imposing a new tax on the gun industry also wouldn’t raise any genuine constitutional concerns. The government doesn’t run afoul of the Second Amendment right to bear arms when it raises taxes on arms, and regardless of whether dealers have a right to sell guns, they surely have no right to sell them tax-free. Any challenge along equal protection or due process grounds would fail as well. Because a gun tax doesn’t infringe upon a fundamental right, it would need only be rationally related to a legitimate government interest. Surely the government has an overwhelming interest in compensating victims of gun violence. States have imposed similar tax schemes upon tobacco companies with no constitutional infirmity.
The tax could be implemented in various ways. Most obviously, the government could impose a tax on all in-state income earned by firearm-related businesses, including manufacturers and sellers. This corporate tax could be supplemented by a direct tax on all firearm-related sales. (These taxes would be added on top of the corporate and sales taxes that buyers and sellers already pay.) No doubt, this scheme would raise the cost of firearm production and purchases. But it would not make guns prohibitively expensive, nor would it shutter most gun shops.
No one should survive a shooting only to drown in medical debt. Yet the PLCAA prevents survivors from securing compensation from the most obvious enablers of their injuries. States must refuse to accept a status quo that permits the firearm industry to escape any responsibility for the epidemic it facilitates. They hold the constitutional authority to help survivors while holding the industry accountable. It’s long past time for them to use that power.
