CHAPTER SEVEN. FIREARMS AND GUN CONTROL

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A. INTRODUCTION

At first encounter, any suggestion that firearms and gun control should be considered as public health issues may seem somewhat overreaching. After all, as gun enthusiasts are fond of saying, guns don’t kill people; people kill people. If anything needs to be viewed as a public health problem, it is the individual who misbehaves, not the instrument that is used in that misbehavior. Moreover, to the extent that guns and the people that use them should be controlled, most of the gun-related conduct that leads to death and injury involves activities that are already governed by the criminal law. What value is there in viewing guns and their use through the same lens that we used to examine such things as unhealthy behavior, exposure to disease, and other traditional public health matters?

To begin with, guns are not really that qualitatively different than many of the other matters already discussed in these materials. Tobacco, as we have seen, appears to provide pleasure notwithstanding its well-established dangers to its users; junk food is not all that bad for your health unless and until it is ingested excessively; cars without seat belts and air-bags (and motorcyclists without helmets) are not unsafe to their occupants until there is an accident. Yet in these cases, government policymakers may regulate the products themselves, not just the individuals who use (or abuse) them. (Airbags are mandatory in cars; helmets much meet manufacturing requirements. Indeed, countless products must meet health and safety requirements in order to be sold at all). For that matter, civil and/or criminal law enforcement and public health remedies are not mutually exclusive, either as a matter of efficiency or political choice.

More importantly, viewing firearms and gun control in the same manner as other public health topics allows us to shift away from identifying individual “culprits” and affixing individual blame for death and harm -- or at least from doing so exclusively -- and towards the identification of causation in the broader sense of the term: What are the causal factors that lead to gun-related harm in various population? How can those causal links be altered to reduce the frequency of death and injury? What is the most cost-effective way to produce the maximum beneficial impact -- given the range of interventions public health analysis invites us to consider?

As the material in the first part of this chapter is intended to demonstrate, the number of people injured or killed with guns is a real and growing problem, whether or not it is properly labeled as a public health problem. If current estimates are correct, 30,000 or more Americans die each year from gunshots; tens of thousands more are wounded or injured. The direct and indirect costs, in dollars and social well-being, are enormous. And while there are some legitimate uses of guns -- hunting, self-defense, policing and maintaining public security -- guns are used in many criminal activities that are themselves a risk to the health and safety of the public.

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What can be done to eliminate or reduce all this is not as clear. As the first several articles in this chapter document, few of the various gun control measures that have been adopted by various states, some localities, and, on occasion, the federal government have been measurably successful. For some critics, this means more and more restrictive measures will be needed. Others argue that what is needed is a more objective assessment of what works and what does not. One critic even argues that limiting gun ownership not only will not reduce gun violence, it may cause it to increase.

Most critically, at least from a legal perspective, the options for gun control must be considered in light of the possible limits on government action created by the Second Amendment to the federal Constitution as well as by the comparable language included in most state constitutions. The language securing the “right to bear arms” is ambiguous and it has been infrequently interpreted by the courts; notwithstanding, it is clear is that gun ownership and use has a unique constitutional status and one that may drastically limit some options for gun control, regardless of their merits. As the cases in the second section of this chapter are intended to illustrate, there is a lively and passionate debate over the meaning and implications of the federal and state protections of the right to bear arms and the principles that define the federal and state government’s discretion to regulate gun use and possession.

At the same time that gun control and regulatory measures are being debated in legislative bodies and evaluated in light of the Second Amendment limitations by the courts, a second judicial debate has concerned the extent to which private parties and, in some cases, state and local governments can bring lawsuits against gun owners, distributors, and manufacturers seeking injunctive relief or damages for the harm caused by their guns.

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B. THE IMPACT OF GUNS ON HEALTH AND SAFETY

DAVID HEMENWAY, PRIVATE GUNS/PUBLIC HEALTH 1-7 (2004)

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On an average day during the 1990s in the United States, firearms were used to kill more than 90 people and to wound three hundred more. Each day guns were also used in the commission of about three thousand crimes. The U.S. rates of death and injury due to firearms and the rates of crimes committed with firearms are far higher than those of any other industrialized country, yet our rates of crime and non-lethal violence are not exceptional. For example, the U.S. rates of rape, robbery, non-lethal assault, burglary, and larceny resemble those of other high-income countries; however our homicide rate is far higher . . . .

. . . Australia, Canada, and New Zealand . . . have roughly similar per capita incomes, cultures, and histories . . . . In 1992, the rates of property crimes and violent crime were comparable across these four countries; with the decline in U.S. crime, by the end of the century, U.S. crime rates were actually lower than in these other countries. What distinguishes the United States is the high rate of lethal violence. In 1992, our murder rate was five times higher than the average of these three other countries. In 1999-2000 it was three times higher. In contrast to these other nations, most of our murderers used guns. . . .

Canada, Australia, and New Zealand all have many guns, though not nearly as many hand guns as the United States. The key difference is that these other countries do a much better job of regulating their guns. Their experience and that of all high-income nations shows that when there are reasonable restrictions on guns, gun injuries need not be such a large public health problem. Their experience shows that it is possible to live in a society with many guns yet one in which relatively few crimes are committed with guns.

. . . [A] comparison of violent deaths of five- to fourteen-year-olds in the United States and in the other 25 high-income countries during the 1990s shows that the United States has much higher suicide and homicide rates, almost entirely because of the higher gun death rates. The United States has ten times the firearm suicide rate and the same non-firearm suicide rate as these other countries, and the United States has 17 times the firearm homicide rate and only a slightly higher non-firearm homicide rate. Our unintentional firearm death rate is 9 times higher.

. . . [B]etween 1950 and 1993, the overall death rate for U.S. children under 15 years declined substantially because of decreases in deaths from both illness and unintentional injury. However, during the same period, childhood homicide rates tripled and suicide rates quadrupled; these increases resulted almost entirely from gun violence.

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Though gunshot wounds often result in death, even nonfatal wounds can be devastating, leading to permanent disability. . . . [N]onfatal gunshot injuries are currently the second leading cause of spinal cord injury in the United States . . . .

The psychological ravages of firearm trauma can be especially long-lasting . . . .

The direct medical costs of gunshot wounds were estimated at $6 million a day in the 1990s. The mean medical cost of a gunshot injury is about $17,000 and would be higher except that the medical costs for deaths at the scene are low. Half of these costs are borne directly by U.S. taxpayers; gun injuries are the leading cause of uninsured hospital stays in the United States. . . .

. . . .

The total number of firearms in civilian hands has increased rapidly in the past 40 years, 70 percent of all new guns purchased in American during the 20th century were bought after 1960. The type of gun purchased has also changed. In 1960, only 27 percent of the yearly additions to the gunstock were handguns; by 1994, that number had doubled to 54 percent.

While the number of guns has increased, the percentage of American households reporting that they own guns has declined markedly in recent years from about 48 percent to about 35 percent. This decline appears in part to result from the decreasing number of adults in each household and, since 1997, from a decline in the proportion of adults who personally own firearms. . . .

Currently, one in four adults owns a gun of some kind, but owners of four or more guns are in possession of 77 percent of the total. . . . Approximately 40 percent of adult males and 10 percent of adult females are gun owners. . . .

The percentage of households with long guns (rifles) fell from 40 percent in 1973 to 32 percent in 1994, but household handgun ownership rose from 20 percent to 25 percent. Since the mid-1990s, even household handgun ownership has been declining. Perhaps 16 percent of U.S. adults currently own handguns.

. . . .

One of the most important predictors of gun ownership is whether one’s parents had a gun in the home. Gun ownership is highest among those over 40 years old and is more prevalent among those with higher incomes. While gun owners come from the entire spectrum of American society, people who admit to having been arrested for a non-traffic offense are more likely to own guns; owners of semiautomatics are more likely than other gun owners to report that they binge drink; and combat veterans with PTSD appear more likely than other veterans to own firearms (and to engage in such potentially harmful behavior as aiming

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guns at family members, patrolling their property with loaded guns, and killing animals in fits of rage).

. . . .

Between 1965 and 2000, more than 60,000 Americans died from unintentional firearms shootings. . . . Young people are the primary victims. More than half of all unintentional firearm fatalities are individuals under 25 years of age. Although relatively few adolescents own guns, the 15 to 19 year old age group has by far the highest rate of unintentional firearm fatalities; second is the 20 to 24 age group.

. . . One study examined data from 1979 to 1997 and found that for every age group, for men and women, for blacks and whites, people living in states with more guns were for more likely to die in gun accidents. Even after accounting for poverty, urbanization, and region, the differences were enormous.

There are currently 2 to 3 accidental firearm deaths each day, but this is, of course, only the tip of the iceberg. For every unintentional firearm fatality, it is estimated that approximately 13 victims are injured seriously enough to be treated in hospital emergency departments. In other words, more than 30 people a day are shot unintentionally but do not die. . . .

. . . .

. . . Since 1965, more than half a millions Americans have committed suicide with a firearm, nearly ten times as many as have died from gun-related accidents. In the United States, more people kill themselves with guns than by all other methods combined. . . .

. . . .

Since 1960, approximately 500,000 Americans have been murdered with guns. Gun murders account for more than two-thirds of all murders, and our murder rate for this period was five times higher than the average rate for other developed nations.

. . . .

Youth have been disproportionately not only the victims but also the perpetrators of homicide. In the early 1990s, the rate of murder arrest was highest among 18-20 year olds, followed by 17 year olds and 16 year olds. . . . Adolescents were killing adolescents and firearms were used in 80 percent of teenage homicides.

. . . .

Overall, the literature on the link between gun availability and homicide is compelling. Most studies . . . show the higher levels of gun prevalence are linked not only with higher levels of gun homicide but also with a higher overall homicide rate.

Focusing exclusively on incidents that result in injury or death would severely underestimate the extent of the gun violence problem in

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the United States. Guns are often used in crime with no bullets being fired and no one being shot. Many such crimes, including cases of assault, rape, and robbery, are not reported to police. . . .

On an average day in 2001, there were 1700 robberies in the United States, including holdups, muggings, purse snatching, and other violent confrontations motivated by theft. Guns were uses in more than 500 of these robberies. Higher levels of gun ownership appear to be associated with higher rates of robbery with guns but not with overall robberies levels. Victims of gun robberies are less likely to resist and less likely to be non-fatally injured than victims of robberies without guns. . . .

Victims of gun robberies, however, are far more likely to be murdered. . . .

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JON S. VERNICK & JULIE SAMIA MAIR, HOW THE LAW AFFECTS GUN POLICY IN THE UNITED STATES: LAW AS INTERVENTION OR OBSTACLE

TO PREVENTION 30 Journal of Law, Medicine, and Ethics 692, 693-695 (2002)

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The public health approach inherent in the science of injury prevention suggests that interventions focusing as far "upstream" as possible -- for example, on the manufacturer of a potentially dangerous product like firearms -- may be preferable to those focusing on the end user. Ultimately, it may be easier to change the practices of a small group of manufacturers than those of a much larger group of end users. For firearms, however, relatively few of the legal interventions in the United States have focused on manufacturers. But there are some notable exceptions that may represent the beginnings of a future trend. Banning the manufacture or sale of certain firearms deemed to be especially dangerous directly targets the companies that make them. At the federal level, the Gun Control Act of 1968 prohibits the importation of handguns deemed not "particularly suitable for or readily adaptable to sporting purposes." This has had the effect of preventing the importation of so-called Saturday night special handguns. Sometimes also called "junk guns," these handguns have been described as small, poorly made, inexpensive, inaccurate, and unreliable. As a result, they have much less utility for lawful users and may be favored by some, particularly price-sensitive, criminals. Several states have also banned the domestic manufacture or sale of Saturday night specials, including Massachusetts and California within the past three years.

Federal law also bans the manufacture of assault weapons, defined as semi-automatic firearms that possess a combination of military-style features, such as a folding stock, bayonet mount, or flash suppressor. Several states and localities also ban assault weapons under a variety of similar definitions. Some localities even ban all handguns. Washington, D.C., and Chicago, Illinois have banned most handgun ownership for many years. . . .

. . . .

Finally, the design of the gun itself can be changed through legislation or regulation to make it safer. Unlike virtually all other consumer products, however, there is no federal agency with the authority to regulate the safe design of guns. [T]he federal Consumer Product Safety Commission (CPSC) has been expressly forbidden to regulate the safety of firearms or ammunition. Recently, though, two states -- Massachusetts and Maryland -- have required manufacturers to incorporate safety features into handguns sold within the states.

In 1997, the Attorney General of Massachusetts, using his existing consumer protection authority, promulgated regulations to require, in part, that all new handguns sold in Massachusetts contain: (1) a device to prevent a young child from firing the gun; (2) a tamper-resistant serial number to assist in the tracing of guns used in crime; and (3) a loaded chamber indicator or magazine safety to reduce the risk of

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unintended shootings where the shooter believed the gun was unloaded. . . . In 2000, Maryland also enacted a law that will change how guns are designed. Under the Responsible Gun Safety Act of 2000, handguns manufactured after December 31, 2002 may not be sold in Maryland unless they have a device built into the gun itself "designed to prevent the handgun from being discharged unless the device is deactivated." The purpose of the law is to prevent shootings caused by unauthorized users of the gun. A built-in key or combination lock, but not a separately applied trigger lock, would probably satisfy the requirements of the law. Bills have also been introduced, but not yet enacted, in other states to require even more high-tech solutions to the problem of shootings caused by unauthorized users. Some of these bills would require that new handguns be "personalized," to automatically permit the gun to fire only for authorized users. For example, a high-tech personalized gun might incorporate a fingerprint reader or other device for recognizing its authorized user, without relying on a key or combination.

Laws targeting dealers or distributors  Like many other consumer products, most firearms are not sold directly by manufacturers to consumers. Instead, manufacturers supply firearms to a large number of independent dealers and distributors, who then make direct sales to the public. This distribution system creates the opportunity for another set of legal interventions focused on those dealers.

At the federal level, persons who are "engaged in the business" of selling firearms must obtain a federal firearms license. To obtain this license, persons must undergo a background check and pay a fee. Although a recent analysis suggests that approximately one percent of all firearms dealers are responsible for selling more than half of all traced crime guns, federal law currently provides little opportunity to investigate potential scofflaw dealers. Most states also require a state dealer's license for those selling firearms. Just two states (Massachusetts and Rhode Island), however, require periodic inspection of dealers.

Recently, some California localities began considering various ways to use local law as an intervention to prevent gun violence. Several chose to enact ordinances restricting the location or other business practices of gun dealers, such as requiring certain anti-theft measures. Other municipalities have used the law to target those selling firearms at gun shows. At gun shows, both dealers and non-dealers congregate to buy and sell firearms, among other activities. Montgomery County, Maryland, for example, recently forbade gun shows from operating in county-owned facilities. There is evidence to suggest that some criminals use gun shows as a ready source of firearms.

Laws targeting buyers or users  Despite the potential benefits of concentrating more prevention efforts on manufacturers and distributors, the majority of legal interventions regarding firearms in the United States focus "downstream" on the gun buyers and users. Many of these, though, are criminal laws

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simply forbidding certain dangerous acts with guns . . . .

Under the Gun Control Act of 1968, as amended by the Brady Handgun Violence Prevention Act in 1994, certain categories of persons are prohibited from purchasing firearms. These include convicted felons, minors, fugitives, those who have been "adjudicated as a mental defective," and illegal aliens. Persons buying guns from licensed dealers (those with a federal firearm license) are required to undergo a background check to determine if they fit one of the prohibited categories. Sales between private individuals rather than from dealers, however, do not require a background check under federal law, though a few states do require checks for all gun sales.

Some states implement their own background check laws through a system that requires the prospective buyer to first obtain a license or permit to purchase the firearm. These licensing systems often require a long waiting period to conduct an extensive background check. Some states also require the firearm itself to be registered, much as a car is registered, to assist law enforcement officials in tracing guns used in crimes and holding sellers criminally accountable for unlawful sales. There is evidence to suggest that states with both a licensing and registration system make it harder for criminals to obtain firearms from in-state sources.

Because gun laws vary so greatly from state to state, interstate trafficking of weapons is a common source of guns for criminals. One legal intervention adopted in just four states limits the number of handguns that may be purchased by one person to one handgun per month. The goal of these one-gun-per-month laws is to make it more difficult for gun traffickers to stock up on firearms for resale to criminals. The second such law in the nation, enacted in Virginia in 1993, appears to have greatly reduced the proportion of guns from Virginia used in crimes in other states.

Once the gun has been acquired, seventeen states mandate that the gun be stored safely. Child access prevention (CAP) laws make it a crime to store a firearm so that a child can gain ready access. Florida enacted its CAP law in 1989 in response to a number of high profile accidental shootings involving children. Public health practitioners in other states saw the opportunity to use the law as an intervention, and by 1999, sixteen additional states had their own CAP law. There is mixed evidence regarding the effectiveness of CAP laws in preventing accidental deaths among children. CAP laws are most likely to be effective if the law mandates felony prosecution and is well publicized. 

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JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUN-CONTROL LAWS 160-166 (2D ED. 2000)

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Many factors influence crime, with arrest and conviction rates being the most important. However, nondiscretionary concealed-handgun laws are also important, and they are the most cost-effective means of reducing crime. The cost of hiring more police in order to change arrest and conviction rates is much higher, and the net benefits per dollar spent are only at most a quarter as large as the benefits from concealed-handgun laws. Even private, medium-security prisons cost state governments about $34 a day per prisoner ($12,267 per year). For concealed handguns, the permit fees are usually the largest costs [and are] borne by private citizens. The durability of guns allows owners to recoup their investments over many years. Using my yearly cost estimate of $43 per concealed handgun for Pennsylvanians, concealed handguns pay for themselves if they have only 1/285 of the deterrent impact of an additional year in prison. This calculation even ignores the other costs of the legal system, such as prosecution and defense costs -- criminals will expend greater effort to fight longer prison sentences in court. No other government policy appears to have anywhere near the same cost-benefit ratio as concealed-handgun laws.

Allowing citizens without criminal records or histories of significant mental illness to carry concealed handguns deters violent crimes and appears to produce an extremely small and statistically insignificant change in accidental deaths. If the rest of the country had adopted right-to-carry concealed-handgun provisions in 1992, about 1,500 murders and 4,000 rapes would have been avoided. On the other hand, consistent with the notion that criminals respond to incentives, county-level data provide some evidence that concealed-handgun laws are associated with increases in property crimes involving stealth and in crimes that involve minimal probability of contact between the criminal and the victim. Even though both the state-level data and the estimates that attempt to explain why the law and the arrest rates change indicate that crime in all the categories declines, the deterrent effect of nondiscretionary handgun laws is largest for violent crimes. Counties with the largest populations, where the deterrence of violent crimes is the greatest, are also the counties where the substitution of property crimes for violent crimes by criminals is the highest. The estimated annual gain in 1992 from allowing concealed handguns was over $5.74 billion.

Many commonly accepted notions are challenged by these findings. Urban areas tend to have the most restrictive gun-control rules and have fought the hardest against nondiscretionary concealed handgun laws, yet they are the very places that benefit the most from nondiscretionary concealed handgun laws. Not only do urban areas tend to gain in their fight against crime, but reductions in crime rates are greatest precisely in those urban areas that have the highest crime rates, largest and most dense populations, and greatest concentrations of minorities. To some this might not be too surprising. After all, law-abiding citizens in these areas must depend on themselves to a great extent for protection. Even if self-protection were accepted, concerns

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would still arise over whether these law-abiding citizens would use guns properly. This study provides a very strong answer: a few people do and will use permitted concealed handguns improperly, but the gains completely overwhelm these concerns.

Another surprise involves women and blacks. Both tend to be the strongest supporters of gun control, yet both obtain the largest benefits from nondiscretionary concealed-handgun laws in terms of reduced rates of murder and other crimes. Concealed handguns also appear to be the great equalizer among the sexes. Murder rates decline when either more women or more men carry concealed handguns, but the effect is especially pronounced for women. An additional woman carrying a con-cealed handgun reduces the murder rate for women by about three to four times more than an additional man carrying a concealed handgun reduces the murder rate for men. Providing a woman with a concealed handgun, represents a much larger change in her ability to defend herself than it does for a man.

The benefits of concealed handguns are not limited to those who use them in self-defense. Because the guns may be concealed, criminals are unable to tell whether potential victims are carrying guns until they attack, thus making it less attractive for criminals to commit crimes that involve direct contact with victims. Citizens who have no intention of ever carrying concealed handguns in a sense get a "free ride" from the crime-fighting efforts of their fellow citizens. However, the "halo" effect created by these laws is apparently not limited to people who share the characteristics of those who carry the guns. The most obvious example is the drop in murders of children following the adoption of nondiscretionary laws. Arming older people not only may provide direct protection to these children, but also causes criminals to leave the area. Nor is the "halo" effect limited to those who live in areas where people are allowed to carry guns. The violent-crime reduction from one's own state's adopting the law is in fact greatest when neighboring states also allow law-abiding citizens to carry concealed handguns. The evidence also indicates that the states with the most guns have the lowest crime rates. Urban areas may experience the most violent crime, but they also have the smallest number of guns. Blacks may be the racial group most vulnerable to violent crime, but they are also much less likely than whites to own guns.

These estimates make one wonder about all the attention given to other types of gun legislation. My estimates indicate that waiting periods and background checks appear to produce little if any crime deterrence. Yet President Clinton credits the Brady law with lowering crime because it has, according to him, been "taking guns out of the hands of criminals." During the 1996 Democratic National Convention, Sarah Brady, after whose husband the bill was named, boasted that it "has helped keep more than 100,000 felons and other prohibited purchasers from buying handguns. . . ." From 1994 until the Supreme Court's decision in 1997, backers of the Brady law focused almost exclusively on the value of background checks, the one part of the law that the Supreme Court specifically struck down.

Actually, the downward crime trend started in 1991, well before the Brady law became effective in March 1994. . . .

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Others estimate a much smaller effect of the Brady law on gun sales. In 1996 the General Accounting Office reported that initial rejections based on background checks numbered about 60,000, of which over half were for purely technical reasons, mostly paperwork errors that were eventually corrected! A much smaller number of rejections, 3,000, was due to convictions for violent crimes, and undoubtedly many of the people rejected proceeded to buy guns on the street. By the time the background-check provision was found unconstitutional, in June 1997, only four people had gone to jail for violations.

Presumably, no one would argue that rejected permits are meaningful by themselves. They merely proxy for what might happen to crime rates, provided that the law really stops criminals from getting guns. Do criminals simply get them from other sources? Or do the restrictions primarily inconvenience law-abiding citizens who want guns for self-defense? The results presented in this book are the first systematic national look at such gun laws, and if the national Uniform Crime Report data through 1994 or state waiting periods and background checks are any indication, the empirical evidence does not bode well for the Brady law. No statistically significant evidence has appeared that the Brady law has reduced crime, and there is some statistically significant evidence that rates for rape and-aggravated assault have actually risen by about 4 percent relative to what they would have been without the law.

Yet research does not convince everybody. Perhaps the Supreme Court's June 1997 decision on the constitutionality of the Brady law's national background checks will shed light on how effective the Brady law was. The point of making the scope of the background check national was that without it, criminals would buy guns from jurisdictions without the checks and use them to commit crimes in the rest of the country. As these national standards are eliminated, and states and local jurisdictions discontinue their background checks, will crime rates rise as quickly without this provision of the law as gun-control advocates claimed they fell because of it? My bet is no, they will not. . . .

Since 1994, aside from required waiting periods, many new rules making gun ownership by law-abiding citizens more difficult have come into existence. There were 279,401 active, federal gun-dealer licenses in the nation when the new licensing regulations went fully into effect in April 1994. By the beginning of 1997 there were 124,286, a decline of 56 percent, and their number continues to fall. This has undoubtedly made purchasing guns less convenient. Besides increasing licensing fees from $30 to $200 for first-time licenses and imposing renewal fees of $90, the 1994 Violent Crime Control and Law Enforcement Act imposed significant new regulatory requirements that were probably much more important in reducing the number of licensees.

The Bureau of Alcohol, Tobacco, and Firearms (BATF) supports this decrease largely because it believes that it affects federal license holders who are illegally selling guns. The BATT's own (undoubtedly high) estimate is that about 1 percent of federal license holders illegally sell guns, and that this percentage has remained constant with the decline in licensed dealers. If so, 155,115 licensees have lost their licenses in order to eliminate 1,551 illegal traffickers. Whether this lopsided trade-off justifies stiffer federal regulation is unclear, but other than simply pointing to the fact that crime continued on its

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downward course nationally during this period, no evidence has been offered. No attempt has been made to isolate this effect from many other changes that occurred over the same period of time.

Changes in the law will also continue to have an impact. Proposals are being made by the U.S. Department of justice to require owners of “firearms arsenals” to provide notice to law enforcement, where the definition of what constitutes an "arsenal" seems to be fairly subjective, and to require gun owners to record the make, model, and serial number of their firearms as a condition of obtaining gun insurance. Other proposals would essentially make it impossible for private individuals to transfer firearms among themselves.

It is too early to conclude what overall impact these federal rules have had on gun ownership. Surely the adoption of the Brady law dramatically increased gun ownership as people rushed out to buy guns before the law went into effect . . . . But without annual gun-ownership data, we cannot separate all the different factors that have altered the costs and benefits of gun ownership.

Other changes are in store during the next couple of years that could affect some of the discussion in this book. The Clinton administration has been encouraging the development of devices for determining at a distance what items a person is carrying. Such devices will enable police to see whether individuals are carrying guns and can help disarm criminals, but criminals who managed to acquire them could also use them to determine whether a potential victim would offer armed resistance. The ability to target unarmed citizens would lower the risks of committing crime and reduce the external benefits produced by concealed handguns. Since both police and criminals might use them, the net effect on crime rates of their use is not immediately clear.

. . . Before granting the government the right to use such long-range devices, we must answer some novel questions regarding constitutional rights. For example, would the ability to take a picture of all the objects that a person is carrying amount to an invasion of privacy? Would it constitute an illegal search?

What implications does this study have for banning guns altogether? This book has not examined evidence on what the crime rate would be if all guns could be eliminated from society -- no data were present in the data set for areas where guns were completely absent for any period of time, but the findings do suggest how costly the transition to that gun-free goal would be. If outlawing guns would primarily affect their ownership by law-abiding citizens, this research indicates that at least in the short run, we would expect crime rates to rise. The discussion is very similar to the debate over nuclear disarmament. A world without nuclear weapons might be better off, but unilateral disarmament may not be the best way to accomplish that goal. The large stock of guns in the United States, as well as the ease with which illegal items such as drugs find their way across borders implies that not only might the transition to a gunfree world be costly (if not impossible), but the transition might also take a long time.

Further, not everyone will benefit equally from the abolition of guns. For example, criminals will still maintain a large strength advantage over many of their victims (such as women and the elderly). To

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the extent that guns are an equalizer, their elimination will strengthen criminals relative to physically weak victims. As we have seen in discussing international crime data, eliminating guns alters criminals' behavior in other ways, such as reducing their fear of breaking into homes while the residents are there.

All these discussions, of course, ignore the issues that led the founding fathers to put the Second Amendment in the Constitution in the first place -- important issues that are beyond the scope of this book. They believed that an armed citizenry is the ultimate bulwark against tyrannical government. Possibly our trust in government has risen so much that we no longer fear what future governments might do. Having just fought a war for their independence against a government that had tried to confiscate their guns, the founding fathers felt very strongly about this issue.

WHAT CAN WE CONCLUDE?

How much confidence do I have in these results? The largest previous study on gun control produced findings similar to those reported here but examined only 170 cities within a single year. This book has examined over 54,000 observations across 3,000 counties for eighteen years and has controlled for a range of other factors never accounted for in previous crime studies. I have attempted to answer numerous questions. For example, do higher arrest or conviction rates reduce crime? What about changes in other handgun laws, such as penalizing the use of a gun in the commission of a crime, or the well-known waiting periods? Do income, poverty, unemployment, drug prices, or demographic changes matter? All these factors were found to influence crime rates, but no previous gun study had accounted for changing criminal penalties, and this study is the first to look at more than a few of any of these other considerations. Preventing law-abiding citizens from carrying handguns does not end violence; it merely makes victims more vulnerable to attack. While people have strong views on either side of this debate, and one study is unlikely to end this discussion, the size and strength of my deterrence results and the lack of evidence that holders of permits for concealed handguns commit crimes should at least give pause to those who oppose concealed handguns. In the final analysis, one concern unites us all: Will allowing law-abiding citizens to carry concealed handguns save lives? The answer is yes, it will.

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Notes and Questions

1. How many guns are there (in private hands) in the United States? No one really knows; there is no national reporting system for sale or ownership. Hemenway’s estimates of private gun ownership are just that, estimates. The Bureau of Alcohol, Tobacco, and Firearms (ATF)(a source cited in several of the excerpts in this chapter) has estimated that 192 million guns were privately owned in the United States in 1999, 65 million of which were handguns. For additional sources, an attempt to assess the accuracy of the data, and interesting comparisons between gun ownership in Canada and that in the United States, see Philip J. Cook & Jens Ludwig, Principles for Effective Gun Policy, 73 FORDHAM L. REV. 589, 590-92 (2004)

Data about how much harm these guns cause is also surprisingly sparse. All sources seem to agree that there is some good news: Gun-related injuries declined in the 1990s. Nonetheless, nonetheless, they remain the second leading cause of injury mortality in the United States. In the year 2002, the CDC reports that over 30,000 people died from gun-related injuries, about 20 percent of all injury deaths. (This is comparable to the rates reported by Hemenway for the 1990s.) Over half of these were suicides (representing about 50 percent of all suicides); about 40 percent were homicides. Males were six times more likely to die of a gunshot wound; blacks were twice as likely as whites. By way of comparison, there were roughly 26,000 deaths form poisoning and 44,000 deaths from traffic accidents in 2002. See National Center for Health Statistics, Deaths: Final Data for 2002, 53 NAT’L VITAL STAT. REP. No. 5, 1-15 (2004). See also http://www.cdc.nchs/fastats/injury.htm (last visited March 2006); http://www.ojp.usdoj.gov/bjs/guns.html (last visited April 2006).

According to Hemenway, an average of more than 80,000 Americans per year suffered nonfatal gunshot wounds from 1993 to 1997. Similar estimates are made by Vernick & Mair, infra at 692. Vernick & Mair also estimate that gun deaths and injuries are associated with substantial costs to both individual Americans and society at large -- including $2.3 billion in lifetime medical costs for gunshot wounds occurring in 1994; about half of these costs were paid from public sources (mostly Medicaid and Medicare expenditures).

These estimates notwithstanding, there does not appear to be a good, regularly updatable source of information on either fatal or non-fatal injuries or their associated costs that can be attributable to guns. Indeed, many observers have claimed that the government should improve the surveillance of gun deaths and injuries to make it comparable to the surveillance efforts that are made for infectious diseases and other sources of injuries.

There are, of course, no good sources of quantifiable data on the many other “costs” associated with gun ownership and use, e.g., the number of people intimidated or harassed with guns, the loss of property values in neighborhoods associated with gun use, the increased insecurity or loss of “peace of mind” of people who live near gun use areas, and so on.

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2. As should be clear from Vernick & Mair, gun control is a collective term. There are a number of ways in which ownership and possession of guns can be regulated or prohibited or even encouraged. (One city in Colorado has enacted a law requiring all adult males to own a firearm.) Most gun control laws, however, are intended to limit their distribution and use, either by regulating their manufacture, sale, or possession.

For a good source of gun control laws on a state-by-state basis, see http://www.stategunlaws.org (last visited April 2006). For an additional source with a somewhat different orientation, see http://www.keepandbeararms.com (last visited April 2006).

Do any of these gun control laws really save lives or prevent injury? Most people assume the answers to such questions are obvious: fewer, safer guns means lower rates of morbidity and mortality from gunshots. As Lott argues, however, the reality of gun control may differ from the dictates of common sense, at least with regard to concealed weapon laws. According to Lott, states that adopt “shall issue” concealed weapons laws may reduce their rates of murder and other violent crimes, presumably because criminals are afraid that their potential victims may be carrying a concealed weapon. As a result, more armed, law-abiding citizens means fewer crimes, a counter intuitive and provocative claim.

Lott backs up his claims with impressive empirical evidence. Nonetheless, not everyone has accepted either the reliability or validity of the data he has amassed or the conclusions that he has drawn from that data. Indeed, his critics have challenged the sources of his data, some of the ways in which he has analyzed it, and even his motives. None, however, have been completely successful in discounting his work. For one example, see JOHN DONOHUE, DOES MORE GUN CARRYING REDUCE CRIME? (Brookings Institute 2005)(available at http://www.brookings.edu/es/urban)(last visited April 2005). See also Lott’s point-by-point rebuttal of his critics efforts in the epilogue to the second edition of his book.

For another work that attempts to develop a thesis similar to that of Lott with regard to gun ownership and crime rates in Great Britian, see JOYCE LEE MALCOM, GUNS AND VIOLENCE: THE ENGLISH EXPERIENCE (2002)(comparing the experience with and without gun control laws in England and the United States, making the case that gun control laws do not reduce gun-related violence).

A recent review of the literature sponsored by the CDC concerning the impact of various types of gun-control laws, declines to endorse either Lott’s view or that of his critics:

The substantial number of studies of shall-issue laws largely derives from and responds to one landmark study [The Lott study]. Many of these studies were considered to be non-independent because they assessed the same intervention in the same population during similar time periods. A review of these revealed critical problems, including misclassification of laws, unreliable county-level crime data, and failure to use appropriate denominators for the available numerator crime data. Methodological problems, such as failure to adjust for auto-

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correction in time series data, were also evident. Results across studies were inconsistent or conceptually implausible. Therefore, the evidence is insufficient to determine the effect of shall issue laws on violent outcomes.

CDC, FIRST REPORTS EVALUATING THE EFFECTIVENESS OF STRATEGIES FOR PREVENTING VIOLENCE: FIREARMS LAWS 6 (2005) (written by the independent Task Force on Community Prevention Services).

For other works attempting to assess the effectiveness of various gun control measures, see Arthur L. Kellerman, et al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 NEW ENG. J. MED. 1084 (2005)(arguing that a gun in the home raises the risk of homicide and claiming that most of in-home deaths from guns are a result of a homicide by a family member or friend); Daniel W. Webster & Marc Starnes, Reexamining the Association Between Child Access Prevention Gun Laws and Unintentional Shooting Deaths of Children, 106 PEDIATRICS 1466 (2000); Peter Cummings, et al., State Gun Safe Storage Laws and Child Mortality Due to Firearms, 278 JAMA 1084 (1997); PHILLIP COOK & JENS LUDWIG, EVALUATING GUN POLICY (2003); Phillip Cook & Anthony Braga, Comprehensive Firearms Tracing: Strategic and Investigative Uses of New Data on Firearms Markets, 43 ARIZ. L. REV. 277 (2001).

Perhaps most importantly, the same CDC-sponsored review of the literature quoted supra declines to endorse either the effectiveness or ineffectiveness of any gun control measure. In short, the empirical data concerning the efficacy of gun control measures are rather inconclusive -- across the board. See also NATIONAL RESEARCH COUNCIL, NATIONAL ACADEMIES, FIREARMS AND VIOLENCE: A CRITICAL REVIEW (2005) available at http://www.national-academies.org (last visited April 2005).

3. From a legal or policymaking point of view, what difference does it make if, in fact, the empirical data does not clearly document that one or another legal strategy will be effective? Obviously it would be nice to know what works and what doesn’t, especially in such a highly controversial area of public policy, but how often do policymakers really know, in advance, that a particular legal or political strategy will be effective? What happens in other contexts such as proposals to improve automobile safety or to increase limits on alcohol availability? Do we typically wait until the available data is overwhelming? Is “fairly convincing” evidence enough? How about “more likely than not to be accurate” data? In other situations, the opinions of experts -- and even non-experts -- are sufficient to uphold legislation. Is there something about gun control legislation that leads political decision makers to be especially cautious before acting?

There is one good, legal reason to be cautious: the potential application of the Second Amendment. Good data to support various options for gun control may be relevant to the constitutional analysis of these measures under the various levels of judicial review required by the Second Amendment or other constitutional principles, as outlined in the section that follows.

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C. THE CONSTITUTIONAL AUTHORITY OF THE STATE AND FEDERAL GOVERNMENTS TO REGULATE GUN USE AND OWNERSHIP

“A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and Arms, shall not be infringed.”

-- Second Amendment to the Constitution of the United States

UNITED STATES v. WRIGHT 117 F.3d 1265 (11th Cir. 1997)

Kravitch, Judge.

* * *

The Second Amendment to the United States Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In this case, we must decide whether this amendment grants constitutional protection to an individual whose possession or use of machineguns and pipe bombs is not reasonably related to an organized state militia. . . .

I. Background

In June 1994, the Bureau of Alcohol Tobacco and Firearms received information that Donald Wright was looking for someone to reassemble a .50 caliber machinegun. Subsequently, two undercover local law enforcement agents were introduced to Wright as individuals capable of reassembling this gun. At this meeting, Wright produced the disassembled machinegun and told the agents that, once it was reassembled, he planned to shoot the gun, grease it, and then bury it. Agents arrested Wright in possession of the disassembled machinegun as he drove away from the meeting. Upon arrest, Wright consented to a search of his residence during which agents discovered a .223 caliber Olympic Arms model Car-AR automatic assault machinegun and three pipe bombs in a shed outside his home. Agents also found several other unregistered assault weapons, ammunition, and assorted documents and videotapes describing threats to United States sovereignty posed by the "New World Order."

Wright was charged with one count of possessing machineguns in violation of 18 U.S.C. § 922(o) and with one count of possessing unregistered destructive devices in violation of 26 U.S.C. § 5861(d). He filed a motion to dismiss the indictment on the grounds that the charging statutes violated, among other constitutional provisions, the Commerce Clause and the Second Amendment. In support of his motion, Wright submitted the seized documents and videotapes to demonstrate that his weapons possession was motivated by what he perceived to be the danger of the "New World Order." He also offered the testimony of a firearms expert to establish that the machineguns and pipe bombs were

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the type of weapons used by contemporary militias. The district court, adopting the magistrate judge's report and recommendation, denied his motion.

. . . .

II. Discussion

. . . .

B. Second Amendment

Wright . . . contends that §§ 922(o) and 5861(d) violate his right to bear arms under the Second Amendment. As a member of Georgia's unorganized militia, Wright claims that he has a constitutional right to possess machineguns and pipe bombs because these weapons are used by contemporary militia fighting forces. . . .

. . . [T]he Supreme Court has provided us with important guidance in interpreting this constitutional provision. In United States v. Miller, 307 U.S. 174 (1939), the Court considered whether the National Firearms Act of 1934, 26 U.S.C. § 1132, which required the registration of certain firearms, violated the Second Amendment rights of two individuals indicted for transporting unregistered sawed-off shotguns in interstate commerce. In reversing the district court's order . . . the Court stated:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Because the Court concluded that there was no evidence that the sawed-off shotgun was "any part of the ordinary military equipment or that its use could contribute to the common defense," the Court held that the statute did not violate the Second Amendment rights of the defendants.

The fact that the Miller Court did not examine the possession or use of the sawed-off shotguns in that case in no way suggests, as appellant contends, that individual possession of a military-type weapon is protected by the Constitution irrespective of whether the possession or use of that weapon is reasonably related to a "well regulated militia." Without any evidence that the sawed-off shotgun at issue in that case could have been used as a weapon by a well regulated militia group to provide for the common defense, there was no need for the Court to determine if the actual possession or use of the weapons bore a reasonable relationship to a well regulated militia.

Therefore, in order to claim Second Amendment protection, Wright must demonstrate a reasonable relationship between his possession of the machineguns and pipe bombs and "the preservation or efficiency of a well regulated militia." Wright claims that he has satisfied this test because his weapons possession is reasonably related to his membership in Georgia's unorganized militia, which he asserts is "well regulated"

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within the meaning of the Second Amendment.

Because the sawed-off shotguns in Miller were not susceptible to use in any militia, the Court did not need to determine explicitly what constituted a "well regulated militia." A careful reading of Miller, however, strongly suggests that only militias actively maintained and trained by the states can satisfy the "well regulated militia" requirement of the Second Amendment. As the Miller Court emphasized, the "obvious purpose" of the Second Amendment was to "render possible the effectiveness of" the governmental militia described in the Militia Clauses of the Constitution.

At the time of ratification, and as remains the case today, the militia was defined broadly and was understood to include "all males physically capable of acting in concert for the common defense." But because the Constitution protects only the possession or use of guns reasonably related to a "well regulated militia," membership in this broad segment of the population is constitutionally insignificant. In determining the scope of Second Amendment protection, the Miller Court did not rely on the commonly understood and wide-reaching definition of the militia, but rather turned to early militia laws of New York, Massachusetts, and Virginia, which provided for the training, maintenance, and equipping of these states' respective militias. We find the Miller Court's reliance on these statutory provisions regulating "the organization and government of the Militia," to be significant. In our view, it indicates that the Miller Court understood the Second Amendment to protect only the possession or use of weapons that is reasonably related to a militia actively maintained and trained by the states.

Moreover, after examining the text and history of the Second Amendment, we conclude that this reading of Miller is consistent with the motivating purposes of the drafters of the Second Amendment. The amendment describes a "well regulated militia" as "being necessary to the security of a free State." The fact that the drafters qualified "well regulated militia" by reference to state security suggests to us that they intended this term to refer only to governmental militias that are actively maintained and used for the common defense. We find substantial support for this textual reading in the history of the drafting and ratification of the Constitution and the Bill of Rights.

The Militia Clauses in Article I authorized Congress to organize, arm, and discipline the militia, but reserved to the states the authority to train the militia and appoint its officers. This dual grant of authority reflected the tension between two competing concerns at the Constitutional Convention: the widespread distrust of a national standing army versus the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense. . . . The Second Amendment was inserted into the Bill of Rights to protect the role of the states in maintaining and arming the militia. It was designed to protect the state militias from federal legislation enacted to undermine the role of state militias. . . .

The concerns motivating the creation of the Second Amendment convince us that the amendment was intended to protect only the use or possession of weapons that is reasonably related to a militia actively maintained and trained by the states. With this conclusion, we join

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every other federal court that has been called on to consider the "well regulated militia" requirement of the Second Amendment, several of which have considered and rejected the claim made by Wright in this case that membership in a state's unorganized militia is sufficient to bring gun possession within the protection of the Second Amendment.

Faced with this overwhelming body of contrary authority, Wright nevertheless maintains that Georgia's unorganized militia is sufficiently well regulated to trigger constitutional protection. He notes that under Georgia law the Governor has the authority to prescribe and to establish regulations governing the unorganized militia. Wright also refers to statutes that allow, under certain circumstances, "the Governor [to] call for and accept from the unorganized militia as many volunteers as are required for service in the organized militia." (citation omitted)

In our view, these statutes fall far short of rendering the Georgia unorganized militia "well regulated" for the purposes of the Second Amendment. The possibility that in responding to a future crisis state authorities might seek the aid of members of the unorganized militia does not speak to the militia's current state of regulation. Wright has not directed us to any Georgia statutes governing the actual, as opposed to potential, organization, training, and equipping of the members of the unorganized militia. . . .

Because Wright has presented no evidence to demonstrate any connection, let alone a "reasonable relationship," between his possession of the machineguns and pipe bombs and the preservation or efficiency of a militia actively trained and maintained by the State of Georgia, his weapons possession is entitled to no constitutional protection. Therefore, we conclude in this case that neither § 922(o)’s blanket ban of machinegun possession nor the registration requirements of § 5861(d) infringe on any constitutionally protected liberties.

* * *

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SILVEIRA v. LOCKYER312 F.3d 1052 (9th Cir. 2002)

Reinhardt, Judge.

* * *

In 1999, the State of California enacted amendments to its gun control laws that significantly strengthened the state's restrictions on the possession, use, and transfer of the semi-automatic weapons popularly known as "assault weapons." Plaintiffs, California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. . . .

I. INTRODUCTION

In response to a proliferation of shootings involving semi-automatic weapons, the California Legislature passed the Roberti-Roos Assault Weapons Control Act ("the AWCA") in 1989. The immediate cause of the AWCA's enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton, California. An individual armed with an AK-47 semi-automatic weapon opened fire on the schoolyard, where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed, and one teacher and 29 children were wounded.

. . . [T]he AWCA, was the first legislative restriction on assault weapons in the nation, and was the model for a similar federal statute enacted in 1994. The AWCA renders it a felony offense to manufacture in California any of the semi-automatic weapons specified in the statute, or to possess, sell, transfer, or import into the state such weapons without a permit. The statute contains a grandfather clause that permits the ownership of assault weapons by individuals who lawfully purchased them before the statute's enactment, so long as the owners register the weapons with the state Department of Justice. The grandfather clause, however, imposes significant restrictions on the use of weapons that are registered pursuant to its provisions. Approximately forty models of firearms are listed in the statute as subject to its restrictions. The specified weapons include "civilian" models of military weapons that feature slightly less firepower than the military-issue versions, such as the Uzi, an Israeli-made military rifle; the AR-15, a semi-automatic version of the United States military's standard-issue machine gun, the M-16; and the AK-47, a Russian-designed and Chinese-produced military rifle. The AWCA also includes a mechanism for the Attorney General to seek a judicial declaration in certain California Superior Courts that weapons identical to the listed firearms are also subject to the statutory restrictions.

. . . .

In 1999, the legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semi-automatic weapons. The amended AWCA retains both the original list of models of restricted weapons, and

23

the judicial declaration procedure by which models may be added to the list. The 1999 amendments to the AWCA statute add a third method of defining the class of restricted weapons: The amendments provide that a weapon constitutes a restricted assault weapon if it possesses certain generic characteristics listed in the statute. . . .

Plaintiffs in this case are nine individuals, some of whom lawfully acquired weapons that were subsequently classified as assault weapons under the amended AWCA. They filed this action in February, 2000, one month after the 1999 AWCA amendments took effect. Plaintiffs who own assault weapons challenge the AWCA requirements that they either register, relinquish, or render inoperable their assault weapons as violative of their Second Amendment rights. Plaintiffs who seek to purchase weapons that may no longer lawfully be purchased in California also attack the ban on assault weapon sales as being contrary to their rights under that Amendment. Additionally, plaintiffs who are not active or retired California peace officers challenge on Fourteenth Amendment Equal Protection grounds two provisions of the AWCA: one that allows active peace officers to possess assault weapons while off-duty, and one that permits retired peace officers to possess assault weapons they acquire from their department at the time of their retirement. . . .

II. DISCUSSION

A. Background and Precedent.

A robust constitutional debate is currently taking place in this nation regarding the scope of the Second Amendment, a debate that has gained intensity over the last several years. . . . There are three principal schools of thought that form the basis for the debate. The first, which we will refer to as the "traditional individual rights" model, holds that the Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms for any purpose at all, subject only to limited government regulation. This view, urged by the NRA and other firearms enthusiasts, as well as by a prolific cadre of fervent supporters in the legal academy, had never been adopted by any court until the recent Fifth Circuit decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). The second view, a variant of the first, we will refer to as the "limited individual rights" model. Under that view, individuals maintain a constitutional right to possess firearms insofar as such possession bears a reasonable relationship to militia service. The third, a wholly contrary view, commonly called the "collective rights" model, asserts that the Second Amendment right to "bear arms" guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons. Under this theory of the amendment, the federal and state governments have the full authority to enact prohibitions and restrictions on the use and possession of firearms, subject only to generally applicable constitutional constraints, such as due process, equal protection, and the like. Long the dominant view of the Second Amendment, and widely accepted by the federal courts, the collective rights model has recently come under strong criticism from individual rights advocates. After conducting a full analysis of the amendment, its history, and its purpose, we reaffirm our conclusion in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), that it is this collective rights model which provides the best interpretation of the Second Amendment.

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[The court then discussed the limited relevance of the Supreme Court’s decision in United States v. Miller.]

. . . .

In light of the United States government's recent change in position on the meaning of the amendment, the resultant flood of Second Amendment challenges in the district courts, the Fifth Circuit's extensive study and analysis of the amendment and its conclusion that Miller does not mean what we and other courts have assumed it to mean, the proliferation of gun control statutes both state and federal, and the active scholarly debate that is being waged across this nation, we believe it prudent to explore Appellants' Second Amendment arguments in some depth, and to address the merits of the issue, even though this circuit's position on the scope and effect of the amendment was established in Hickman. B. Appellants Lack Standing to Challenge the Assault Weapons Control Act on Second Amendment Grounds.

Appellants contend that the California Assault Weapons Control Act and its 1999 revisions violate their Second Amendment rights. We unequivocally reject this contention. We conclude that although the text and structure of the amendment, standing alone, do not conclusively resolve the question of its meaning, when we give the text its most plausible reading and consider the amendment in light of the historical context and circumstances surrounding its enactment we are compelled to reaffirm the collective rights view we adopted in Hickman: The amendment protects the people's right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use. . . . Because we hold that the Second Amendment does not provide an individual right to own or possess guns or other firearms, plaintiffs lack standing to challenge the AWCA.

The Second Amendment states in its entirety: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." As commentators on all sides of the debate regarding the amendment's meaning have acknowledged, the language of the amendment alone does not conclusively resolve the question of its scope. . . . What renders the language and structure of the amendment particularly striking is the existence of a prefatory clause, a syntactical device that is absent from all other provisions of the Constitution, including the nine other provisions of the Bill of Rights. Our analysis thus must address not only the meaning of each of the two clauses of the amendment but the unique relationship that exists between them.

a. The Meaning of the Amendment's First Clause: "A Well Regulated Militia Being Necessary to the Security of A Free State."

The first or prefatory clause of the Second Amendment sets forth the amendment's purpose and intent. An important aspect of ascertaining that purpose and intent is determining the import of the term "militia." Many advocates of the traditional individual rights model, including the Fifth Circuit, have taken the position that the term "militia" was meant to refer to all citizens, and, therefore, that the first clause simply restates the second in more specific terms. . . . Relying on their

25

definition of "militia," they conclude that the prefatory clause was intended simply to reinforce the grant of an individual right that they assert is made by the second clause. . . .

We agree that the interpretation of the first clause and the extent to which that clause shapes the content of the second depends in large part on the meaning of the term "militia." If militia refers, as the Fifth Circuit suggests, to all persons in a state, rather than to the state military entity, the first clause would have one meaning -- a meaning that would support the concept of traditional individual rights. If the term refers instead, as we believe, to the entity ordinarily identified by that designation, the state-created and organized military force, it would likely be necessary to attribute a considerably different meaning to the first clause of the Second Amendment and ultimately to the amendment as a whole.

We believe the answer to the definitional question is the one that most persons would expect: "militia" refers to a state military force. We reach our conclusion not only because that is the ordinary meaning of the word, but because contemporaneously enacted provisions of the Constitution that contain the word "militia" consistently use the term to refer to a state military entity, not to the people of the state as a whole. We look to such contemporaneously enacted provisions for an understanding of words used in the Second Amendment in part because this is an interpretive principle recently explicated by the Supreme Court in a case involving another word that appears in that amendment -- the word "people." That same interpretive principle is unquestionably applicable when we construe the word "militia."

"Militia" appears repeatedly in the first and second Articles of the Constitution. . . . Nevertheless, the contexts in which the term is used demonstrate that even without the prefatory word, "militia" refers to state military organizations and not to their members or potential members throughout these two Articles. . . .

. . . .

Finally, our definition of "militia" is supported by the inclusion of the modifier "well regulated.". . .

b. The Meaning of the Amendment's Second Clause: "The Right of the People to Keep and Bear Arms Shall Not Be Infringed."

. . . We consider it highly significant . . . that the second clause does not purport to protect the right to "possess" or "own" arms, but rather to "keep and bear" arms. This choice of words is important because the phrase "bear arms" is a phrase that customarily relates to a military function.

Historical research shows that the use of the term "bear arms" generally referred to the carrying of arms in military service -- not the private use of arms for personal purposes. . . .

We also believe it to be significant that the first version of the amendment proposed by Madison to the House of Representatives concluded with an exemption from "bearing arms" for the "religiously scrupulous." . . . Accordingly, the exemption from bearing arms for the

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religiously scrupulous can only be understood as an exemption from carrying arms in the service of a state militia, and not from possessing arms in a private capacity. . . .

Finally, we address the use of the term "keep" in the second clause. The reason why that term was included in the amendment is not clear. . . . Arms can be "kept" for various purposes -- military, social, or criminal. The question with respect to the Second Amendment is not whether arms may be kept, but by whom and for what purpose. If they may be kept so that the possessor is enabled to "bear arms" that are required for military service, the words would connote something entirely different than if they may be kept for any individual purpose whatsoever. In this connection, some scholars have suggested that "keep and bear" must be construed together (like "necessary and proper") as a unitary phrase that relates to the maintenance of arms for military service. . . . In the end, however, the use of the term "keep" does not appear to assist either side in the present controversy to any measurable extent.

c. The Relationship Between the Two Clauses.

. . . As we have noted, and as is evident from the structure of the Second Amendment, the first clause explains the purpose of the more substantive clause that follows, or, to put it differently, it explains the reason necessitating or warranting the enactment of the substantive provision. Moreover, in this case, the first clause does more than simply state the amendment's purpose or justification: it also helps shape and define the meaning of the substantive provision contained in the second clause, and thus of the amendment itself. . . .

When the second clause is read in light of the first . . . we believe that the most plausible construction of the Second Amendment is that it seeks to ensure the existence of effective state militias in which the people may exercise their right to bear arms, and forbids the federal government to interfere with such exercise. This conclusion is based in part on the premise, explicitly set forth in the text of the amendment, that the maintenance of effective state militias is essential to the preservation of a free State, and in part on the historical meaning of the right that the operative clause protects -- the right to bear arms. . . .

In the end, however, given the history and vigor of the dispute over the meaning of the Second Amendment's language, we would be reluctant to say that the text and structure alone establish with certainty which of the various views is correct. Fortunately, we have available a number of other important sources that can help us determine whether ours is the proper understanding. These include records that reflect the historical context in which the amendment was adopted, and documents that contain significant portions of the contemporary debates relating to the adoption and ratification of the Constitution and the Bill of Rights. . . .

[The court then engages in an extended review of the historical context in which the Second Amendment was debated and adopted.]

What our historical inquiry reveals is that the Second Amendment was enacted in order to assuage the fears of Anti-Federalists that the

27

new federal government would cause the state militias to atrophy by refusing to exercise its prerogative of arming the state fighting forces, and that the states would, in the absence of the amendment, be without the authority to provide them with the necessary arms. Thus, they feared, the people would be stripped of their ability to defend themselves against a powerful, over-reaching federal government. The debates of the founding era demonstrate that the second of the first ten amendments to the Constitution was included in order to preserve the efficacy of the state militias for the people's defense -- not to ensure an individual right to possess weapons. Specifically, the amendment was enacted to guarantee that the people would be able to maintain an effective state fighting force -- that they would have the right to bear arms in the service of the state.

. . . .

. . . Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias. The proponents of the Second Amendment believed that only if the states retained that power could the existence of effective state militias -- in which the people could exercise their right to "bear arms" -- be ensured. The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession. Accordingly, we are persuaded that we were correct in Hickman that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment. Thus, we hold that the Second Amendment imposes no limitation on California's ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons such as assault weapons. Plaintiffs lack standing to assert a Second Amendment claim, and their challenge to the Assault Weapons Control Act fails.

[The court then held that the exceptions allowed for off-duty law enforcement officers did not violate principles of equal protection, but that there was no rational basis for an exception to allow for possession of prohibited weapons by retired police officers.]

* * *

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NORDYKE v. KING364 F.3d. 1025 (9th Cir. 2004)

* * *

[Introductory note: In an earlier phase of this litigation, a three-judge panel of the Ninth Circuit refused to hear a Second Amendment challenge to an ordinance of Alameda County, California, which prohibited the possession of firearms on county property and thus barred the plaintiffs’ participation in a gun show held at the county’s fairgrounds. Nordyke v. King, 319 F.3d 1185 (9th Cir. 1185 (2000). That three-judge panel viewed itself as bound by a prior en banc ruling of the 9th Circuit, Hickman v. Block, which essentially read the Second Amendment as a protecting a collective, and not an individual, right. The panel took note of the 9th Circuit’s post-Hickman decision in Lockyer, supra, but criticized the Lockyer court (also a three-judge panel) for not likewise considering itself bound by Hickman, which would have precluded its engaging in its own lengthy analysis of the Second Amendment.

That history brings us to the proceedings of which the opinion below is apart. The opinion is a dissent to the decision by a majority of the justices on the Ninth Circuit denying the Nordyke plaintiffs’ petition for a rehearing, before the circuit court en banc, of the three-judge panel’s refusal to hear the Second Amendment challenge. In substance, the dissent is a rejection of Hickman, Lockyer, and the three-judge decision in Nordyke.]

Gould, Judge, dissenting.

I respectfully dissent from our denial of rehearing en banc. This case presents an important issue of the scope of the constitutional guarantee of the Second Amendment, arising in the context of state restriction of gun shows. The panel decision in this case was compelled by our circuit's prior holding . . . in which we embraced a "collective rights" reading of the Second Amendment. . . . An "individual rights" interpretation, as was recently adopted by the Fifth Circuit [in United States v. Emerson] . . . is more consistent with the text, structure, purposes, and history of the Second Amendment, as well as colonial experience and pre-adoption history. It also reflects what I consider to be the scholarly consensus that has recently developed on the question of how to best interpret the Second Amendment. We should recognize that individual citizens have a constitutional right to keep and bear arms, subject -- in the same manner as all other core constitutional rights -- to certain limits. Thereafter, the chips will fall where they may, and decisions in due course will clarify what is and is not constitutionally permissible regulation, and the further standards for addressing it.

. . . .I

The Second Amendment . . . contains a substantive guarantee and a prefatory clause. The collective rights view of the Second Amendment places undue weight on a confused interpretation of the prefatory clause to reach the conclusion that the Second Amendment grants only a

29

collective right. . . . [E]ven if it were assumed that the Second Amendment's prefatory clause did limit the scope of the substantive guarantee to those in the "militia," the militia should be defined to encompass the people as a whole. The plain meaning of the language of the Second Amendment mandates an individual rights interpretation.

As with all of the first eight amendments of the Bill of Rights, the Second Amendment makes clear that its purpose is to grant a right to the people. As used throughout the text of the Constitution, "rights" and "powers" are granted to the people, whereas government only has "power" or "authority.". . . The Second Amendment states that the right it provides for is one "of the people." Apart from the Second Amendment, the phrase "the people" appears in four other places in the Bill of Rights. There is no question that "the people," as used in the First, Fourth, Ninth, and Tenth Amendments refers to individuals. . . .

The right granted to the people by the Second Amendment is one to "keep and bear arms." Those who support the collective rights view maintain that "keep and bear" should be read as a unitary phrase . . . or that the word "keep," as used in the Second Amendment, has no independent content because the Second Amendment does not protect a right to "own" or to "possess" arms . . . . Collective rights supporters argue further that the term "bear arms" refers only to members of an organized militia during actual service. . . . These interpretations of "keep and bear arms" are inconsistent with basic principles of constitutional interpretation, and conflict with the historical use and meaning of the words "keep" and "bear."

. . . .

I also disagree with the conclusion of collective rights proponents that the term "bear arms" has only military connotations. In Emerson, the Fifth Circuit conducted an extensive analysis of the use of "bear arms" in early state constitutions and declarations of rights. From this analysis, the Emerson court concluded that early nineteenth century constitutions and declarations of rights in at least ten different states gave "people" or "citizens" the right to "bear arms" in their own personal defense. Such widespread use of the phrase "bear arms" in state grants of individual rights undercuts the argument that the drafters of the Second Amendment chose this phrase as a manner of indicating a collective right.

However, even if "bear" is presumed to have a military definition, the Second Amendment's further use of the word "keep" takes the scope of the Second Amendment beyond the right to bear arms in military defense. Had the drafters of the Second Amendment intended only to grant the people a right to carry arms while serving in the organized militia, the use of "bear" alone would have been sufficient. The most common definition of "keep," both today as well as at the time the Second Amendment was drafted, is to have custody or possession of. . . .

. . . .

The Second Amendment's prefatory clause states: "A well regulated Militia, being necessary to the security of a free State." As the Second Amendment's substantive guarantee confers an individual right to keep and bear arms, the question is whether the language of the Amendment's

30

preamble modifies the right conferred by the substantive guarantee to limit it to a "collective" right. I am convinced that it does not.

Supporters of a collective rights interpretation read the term "militia" as used in the Second Amendment to mean "essentially a state military entity," and "not some amorphous body of the people as a whole." However, the Second Amendment's language indicates that the "Militia" rests upon the shoulders of the people. And protecting the right of an individual to keep and bear arms certainly serves the Second Amendment's prefatory goal. Allowing citizens to keep arms furthers the effectiveness of a well-regulated militia, which is in turn necessary to the security of a free state. . . .

This interpretation is also consistent with the purposes and structure of the Second Amendment. The Second Amendment serves two purposes: (1) to protect against external threats of invasion; and (2) to guard against internal threats to our republic. . . . As I wrote in [a related case]:

Those who debated and framed the Bill of Rights were educated in practical political concepts and doubtless recognized that an opening gambit for tyrants is to disarm the public. If the Second Amendment is held to protect only a state-regulated militia, then there would be no constitutional bar to a federal government outlawing possession of all arms by hunters and those with legitimate needs for protection. A general confiscation of guns could become the order of the day. I believe that result is foreclosed by the salient purpose of the Second Amendment to guard against tyranny, and that an individual right to keep and bear arms must be recognized.

However, even if I were to assume that the prefatory clause did modify the Second Amendment's substantive guarantee, I would still reach the conclusion that the Second Amendment guarantees an individual right. The First Militia Act of 1792, 1 Stat. 271 (1792), passed only a few years after ratification of the Constitution, provides a contemporaneous window on the accepted meaning of the term "militia" at the time the Constitution was drafted. . . . The Militia Act of 1792 defined the "militia" as: "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years." Thus, contrary to the "collective rights" notion . . . the militia was precisely not "a state entity, a state fighting force," limited to those who are active members of such a collective organization. It was all the able-bodied white male citizens from 18 to 45, whether they were organized into a state fighting force or not.". . . Furthermore, the Supreme Court has also had opportunity to expound on the historical meaning of the word "militia." In Miller the most recent Supreme Court precedent interpreting the Second Amendment, the Court devoted a substantial portion of its opinion to a discussion of the scope of the "militia." Looking to "the debates in the [constitutional] Convention, the history and legislation of the Colonies and States, and the writings of approved commentators," the Supreme Court concluded that the militia referred to by the Second Amendment was neither an organized fighting force nor a formal state military entity . . . In the words of the Court: "the Militia comprised all males

31

physically capable of acting in concert for the common defense. A body of citizens enrolled for military discipline."

I do not read the prefatory clause of the Second Amendment to limit the scope of the substantive guarantee of the right to keep and bear arms. Even if a limiting purpose is attributed to the prefatory clause's reference to "militia," the First Militia Act, the current federal statutory definition of "militia" and the Supreme Court's review of the historical meaning and purpose of the militia at the time of the framers are in accord that a "militia" is not restricted to the organized state military. Instead, these authorities support the conclusion that the militia consists of everyday civilians from a broad swath of the population. It is by granting these ordinary civilians the right to keep and bear arms that the Second Amendment aims to further the effectiveness of a "well-regulated militia," which in turn is "necessary to the security of a free State."

II

Historical analysis also supports the conclusion that the framers of the Bill of Rights intended for the Second Amendment to create an individual right to keep and bear arms. The Fifth Circuit devoted a substantial portion of the Emerson opinion to a detailed review of the debate between the Federalists, those in favor of a strong federal government, and Anti-Federalists, those skeptical of a powerful government, over the strength of the federal government established by the Constitution. A summary of the history of the Bill of Rights shows that contemporaneous concern over the strength of the federal government led to the creation of an individual right to keep and bear arms in the Second Amendment.

Although the government contemplated by the Constitution was one of limited, enumerated powers, the Anti-Federalists feared that the federal government would use its power to infringe on the fundamental rights of the people. One concern was the federal government's broad military power under the Constitution, including the power to call forth and organize the militia, and the power to raise and support a standing army . . . . The Anti-Federalists worried that this power could be used to control or destroy the militia, and that a tyrannical federal government could further use this power to leave the states and their citizens defenseless against the federal government's transgressions.

The concerns of the Anti-Federalists did not stop adoption of the Constitution, which was soon ratified by the required nine states. However, these concerns did persuade the first Congress to consider the need to amend the Constitution to include a Bill of Rights. During consideration of what eventually became the Second Amendment, the Senate rejected a proposed amendment that would have granted states the power to arm and train their own militias. In other words, the Senate expressly rejected an amendment proposing language that would support a collective rights view of the Second Amendment. . . .

Contemporaneous legal commentary further shows that persons living in the late eighteenth and nineteenth centuries viewed the Second Amendment as conferring an individual right. . . .

III

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The individual rights view of the Second Amendment has also "enjoyed recent widespread academic endorsement." Scholars with such wide-ranging views as Laurence Tribe, Akhil Reed Amar, William Van Alstyne, and Eugene Volokh have come to a consensus that the Second Amendment protects an individual right to keep and bear arms. . . .

. . . . IV

The Second Amendment protects the right "of the people." It protects the people's right not only to "bear arms," which may be read as having a military connotation, but also to "keep arms," which can only be interpreted as having an individual one. By rejecting the individual right to keep arms, Hickman fails to do justice to the language of the Second Amendment. Hickman also disregards the important lesson of history that an armed citizenry can both repel external aggression and check the danger of an internal government degenerating to tyranny.

. . . The Second Amendment was designed to provide national security not only when our country is strong but also if it were to become weakened or otherwise subject to attack. As the people bear the risk of loss of their freedom and the pain of any attack, our Constitution provides that the people have a right to participate in defense of the Nation. The Second Amendment protects that fundamental right.

* * *

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BACH v. PATAKI,408 F.3d 75 (2d Cir. 2005)

Wesley, Judge.

* * *

David Bach, a Virginia resident and domiciliary, wants to carry his Ruger P-85 9mm pistol while visiting his parents in New York. He has a permit from the Commonwealth of Virginia to carry a concealed weapon. Bach is a model citizen -- he holds a Department of Defense top secret security clearance, is a commissioned officer in the United States Naval Reserve, a veteran Navy SEAL, a lawyer employed by the Navy's Office of the General Counsel, a father of three, and, perhaps most laudably, a son who regularly visits his parents in upstate New York. "During the ten-hour drive between Virginia and Upstate New York, [his] family and [he] travel on dimly lit rural roads and busy streets and highways[,] some of which are in densely populated areas that have extremely high violent crimes rates." Bach has read "about unarmed, law-abiding citizens being slain by sadistic predators despite the exceptional efforts of law enforcement" and believes that carrying a pistol will help him protect his family.

However, as a nonresident without New York State employment, Bach is not eligible for a New York firearms license. The State Police informed Bach that "no exemption exists which would enable [him] to possess a handgun in New York State" and that "[t]here are no provisions for the issuance of a carry permit, temporary or otherwise, to anyone not a permanent resident of New York State nor does New York State recognize pistol permits issued by other states." The State Police further explained that persons "who maintain seasonal residen[ce] in New York State likewise are not eligible for a New York State Pistol Permit" and warned Bach that if he were found in possession of his pistol in New York he "would be subject to automatic forfeiture of the firearm in question and criminal prosecution."

Bach filed this action against State and local officials to contest his exclusion from New York's licensing scheme. His complaint requests that the district court declare New York's licensing laws unconstitutional, facially and as applied, in violation of both the "right to keep and bear arms" set out in the Second Amendment and the Privileges and Immunities Clause of Article IV of the United States Constitution. [which states that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."].

. . . .

II

New York State has regulated the possession of weapons since 1849. That year, the State criminalized possession of the "slung [sling] shot." Thirty-five years later, New York instituted a statewide licensing requirement for minors carrying weapons in public, and soon after the turn of the century, the State expanded its licensing

34

requirements to include all persons carrying concealed pistols. With the passage of the Sullivan Act in the spring of 1911, New York's licensing requirement applied to all persons possessing pistols or any other firearm small enough to be carried concealed.

The State's earliest firearms-licensing statutes delegated licensing to municipalities. When the State first established statewide application requirements, it limited licenses to "have and carry concealed" to those "citizen[s] of and usually a resident in the state of New York," but permitted the licensing official -- judges in most parts of the State, but the police commissioner in New York City -- to make an exception, so long as the officer received certificates of good moral character regarding the applicant and the official "state[d] in such license the particular reason for the issuance thereof."

In 1963, New York altered its statewide licensing procedures, making two significant and related changes. First, it granted licensing officers the authority to revoke licenses "at any time." Second, it limited carry licensees to New York residents and in-state employees. As explained below, the licensing officers' revocation authority and the residency requirement remain features of the current statutory regime.

Today, New York regulates handguns primarily though Articles 265 and 400 of the Penal Law. Article 265 creates a general ban on handgun possession, with specific exemptions thereto . . . . The exemption at issue here is a licensed use exemption defined in Article 400: "[the p]ossession of a pistol or revolver by a person to whom a license therefor has been issued."

Article 400 of the Penal Law "is the exclusive statutory mechanism for the licensing of firearms in New York State." Licenses are limited to persons over twenty-one, of good moral character, without a history of crime or mental illness, and "concerning whom no good cause exists for the denial of the license." There are several types of pistol and revolver licenses, including licenses for household possession, for workplace possession, and to "have and carry concealed." The last, a carry license, may issue only for "proper cause."

Licensing is a rigorous and principally local process that begins with the submission of a signed and verified application to a local licensing officer. Applicants must demonstrate compliance with certain statutory eligibility requirements as well as any facts "as may be required to show the good character, competency and integrity of each person or individual signing the application." Every application triggers a local investigation. "[T]he police authority of the city or county where the application is made is responsible for investigating the statements in the application." Local police, therefore, investigate applicants' mental health history, criminal history, moral character, and, in the case of a carry license, representations of proper cause. Police officers also take applicants' fingerprints and check them against the records of the State Division of Criminal Justice Services and the FBI. Upon completion of the investigation, the police authority reports its results to the licensing officer.

Local licensing officers, often local judges, have considerable discretion in deciding whether to grant a license application. . . .

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A licensing officer is also "statutorily invested with the power to sua sponte revoke or cancel a license.". . .

An officer's revocation decision may be triggered by local incidents; in light of the highly destructive potential of a firearm, local officials may revoke a license if a licensee engages in behavior that portends of future problems. . . . Local incidents may also lead a licensing officer to conclude that a licensee lacks the mental fitness to continue to possess a firearm and to revoke the license on that basis.

Licensing is thus a locally controlled process. . . .

The only nonresidents eligible for a license are local workers, who may apply to the licensing officer in the city or county of their principal employment or principal place of business. The statute does not provide a mechanism for any other nonresident applications. One New York appellate court has explained that nonresident applications would be inconsistent with "the purposes underlying the pistol permit procedures, namely, to insure that only persons of acceptable background and character are permitted to carry handguns and to provide a method for reporting information on the identity of persons possessing weapons and the weapons themselves . . . ."

Some classes of nonresidents may nonetheless possess or carry handguns in New York. Although New York generally "does not recognize or give effect to licenses to carry firearms issued by . . . other state[s]," federal law grants a limited right to transport unloaded firearms through the State. Additionally, Article 265 sets forth a number of provisions permitting nonresidents to possess or carry firearms. For instance, police officers of other States may possess pistols while conducting official business in New York, and nonresidents licensed within their own States may use pistols in competitive shooting matches in New York . . .

III

[The court then decides that Bach has standing to bring his constitutional claims even though he did not apply for a license.]

IV

Bach argues that New York's licensing scheme unreasonably infringes upon his "right to keep and bear arms" under the Second Amendment . . . . He contends that the Second Amendment's right to keep and bear arms is a right of individual citizens, that it limits the States in regulating firearms, and that New York's statutory scheme cannot withstand the resultant heightened scrutiny.

Bach focuses primarily on the question of whether the right to keep and bear arms is an individual right. Applying textualist and originalist approaches to interpreting the Amendment, proffering historical and contemporary scholarship, and buttressed by the recent conclusions of both the Fifth Circuit and the Department of Justice, Bach asks this Court to declare the "right to keep and bear arms" an individual, rather than collective, right. Defendants, by contrast, construe the Amendment as merely a "guarantee . . . to the states [of]

36

the collective right to arm or fortify their respective 'well regulated' militias" and insist that the Amendment "does not establish an individual right to 'bear arms' for any purpose." . . .

Although the sweep of the Second Amendment has become the focus of a national legal dialogue, we see no need to enter into that debate. Instead, we hold that the Second Amendment's "right to keep and bear arms" imposes a limitation on only federal, not state, legislative efforts. We thus join five of our sister circuits.

Our holding is compelled by the Supreme Court's opinion in Presser v. Illinois, 116 U.S. 252 (1886). In 1879, Herman Presser led four hundred armed members of a society called the Lehr und Wehr Verein through the streets of Chicago. Illinois's Military Code required that any "parade with arms" be licensed by the Governor. Presser lacked a license, and was charged and convicted under the Code. Presser argued to the Supreme Court that Illinois had exercised a power "forbidden to the States by the Constitution of the United States." He relied on both the Second and Fourteenth Amendments.

The Supreme Court rejected Presser's argument. Justice Woods explained, "[A] conclusive answer to the contention that [the Second Amendment] prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States." . . .

Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the States. . . .

Bach does not distinguish Presser. Rather, he contends that Presser is "outdated" and "do[es] not reflect the Court's modern view." He relies on two footnotes for support -- the Fifth Circuit's comment in Emerson that Presser "came well before the Supreme Court began the process of incorporating certain provisions of the first eight amendments into the Due Process Clause of the Fourteenth Amendment," and the Ninth Circuit's similar note in Silveira . . . .

We must follow Presser. Where, as here, a Supreme Court precedent "has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to th[e Supreme] Court the prerogative of overruling its own decisions." . . . We cannot overrule the Supreme Court.

Accordingly, we hold that the "right to keep and bear arms" does not apply against the States and affirm the district court's dismissal of Bach's Second Amendment claim.

V

Bach also challenges New York's licensing regime under the Privileges and Immunities Clause of Article IV, section two of the Constitution. He contends that "New York's prohibition on allowing nonresidents such as Bach to obtain a firearms license violates the Privileges and Immunities Clause."

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Bach suggests that New York's licensing scheme unconstitutionally discriminates against both his protected rights under the Privileges and Immunities Clause and the "right to travel" secured therein. But the "right to travel," at least in this context, is simply a shorthand for the protections of the Privileges and Immunities Clause of Article IV, as travel -- movement from one State to another -- is at the core of every Privileges and Immunities Clause challenge. As the Supreme Court has explained, the "right to travel," in the constitutional context, "embraces at least three different components." Two of those components, " 'the right of free ingress and regress to and from' neighboring states," and "the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State," are inapplicable here. The third and only relevant component is merely a restatement of rights arising under Article IV -- "the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in [a] second State." Bach's appeal depends on only this last guarantee that, "by virtue of a person's state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the 'Privileges and Immunities of Citizens in the several States' that he visits." His appeal thus condenses to the challenge that New York's handgun licensing scheme unconstitutionally discriminates against nonresidents with regard to a protected privilege under the Clause.

The Privileges and Immunities Clause provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This clause, like the Commerce Clause of Article I, section 8, derives from the fourth of the Articles of Confederation, and had the primary purpose of "fus[ing] into one Nation a collection of independent, sovereign States," . . . It operates to "place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned." Indeed, "[t]he Privileges and Immunities Clause, by making noncitizenship or nonresidence an improper basis for locating a special burden, implicates not only the individual's right to nondiscriminatory treatment but also, perhaps more so, the structural balance essential to the concept of federalism."

In order to prevail on a Privileges and Immunities challenge, a plaintiff must demonstrate that the "State has, in fact, discriminated against out-of-staters with regard to the privileges and immunities it accords its own citizens." The challenged "privilege" must come within the scope of the Clause. "The Clause '. . . establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment.' "Only those activities " 'sufficiently basic to the livelihood of the Nation' " are protected. Other "distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States."

Where a protected privilege or immunity is implicated, the State may defeat the challenge by showing sufficient justification for the discrimination, i.e., " 'something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed.' "A state may defend its position by demonstrating: "(a) a substantial reason for the discrimination, and (b) a reasonable relationship between the degree of discrimination exacted and the danger sought to be averted

38

by enactment of the discriminatory statute." "The availability of less restrictive means is considered when evaluating the measure and degree of the relationship between the discrimination and state interest." This evaluation must "be conducted with due regard for the principle that States should have considerable leeway in analyzing local evils and prescribing appropriate cures."

Insofar as a plaintiff challenges a State's discrimination against him with regard to privileges and immunities -- an "as-applied" challenge -- he need only demonstrate that his own "nonresidency presents [no] special threat to any of the State's interests that is not shared" by residents. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid." . . .

Bach argues that New York's licensing regime discriminates against nonresidents with regard to a protected right under Article IV's Privileges and Immunities Clause without sufficient justification. Defendants do not dispute that New York's laws discriminate against nonresidents, who, unlike residents, may only apply for a license if they work principally within the State. Instead, they respond, first, that possession of a firearm is not within the ambit of the Privileges and Immunities Clause and, second, that, even if the Clause did apply, New York's pistol permit scheme would remain valid because it "is closely related to a substantial state interest in restricting firearms possession to persons of acceptable temperament and character."

Bach can prevail only if New York's grant of an Article 400 license should be considered a "privilege" under Article IV. Neither the Supreme Court, this Court, nor any other Court of Appeals has considered whether the Privileges and Immunities Clause protects what Bach calls "the right to self-defense through the use of a firearm.". . .

. . . .

. . . Because we agree with defendants and the district court that New York's licensing scheme is sufficiently justified, we will assume, without deciding, that entitlement to a New York carry license is a privilege under Article IV.

There is no question that New York discriminates against nonresidents in providing handgun licenses under Article 400. Defendants do not contest this fact. Instead, they argue that the discrimination is sufficiently justified by New York's public safety interest in monitoring handgun licensees. We do not doubt, and Bach does not dispute, that "[t]he State has a substantial and legitimate interest . . . in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument."

New York's monitoring interest is, in essence, an interest in continually obtaining relevant behavioral information. The State's licensing scheme vests broad revocation discretion in a local licensing officer, permitting that officer to revoke a license on the basis of a wide variety of behavioral data, including information reported from

39

local incidents. The operative information available to licensing officers is not restricted to the legal formalities of an arrest warrant, an accusatory instrument, or a judgment of conviction. Licensing officers have the discretion to revoke licenses upon displays of "poor judgment . . . .

But the degree of discrimination exacted must be substantially related to the threatened danger. This is the more difficult inquiry: With regard to New York's monitoring interest, is there any "particularized evil presented uniquely by nonresident[s] . . . that warrants the degree of outright discrimination imposed"? Defendants argue:

The ongoing flow of information to a licensing officer as a result of the licensee's tie to a particular residence or community is an important element of the State's regulatory scheme. It substantially increases the likelihood that a licensing officer will be alerted to facts that cast doubt on a licensee's fitness to possess a firearm.

Bach challenges the substantiality of this relationship. He contends: (1) nonresidents within the State are no more difficult to monitor than residents, and (2) New York has not shown that it could not obtain the same quality of information from other States. Thus, Bach concludes, defendants have not shown any "palpable and unique risks" posed by out-of-state residents. . . .

First, although it may be true that New York can monitor nonresidents as easily as residents while either are in the State, New York has an interest in the entirety of a licensee's relevant behavior. Information regarding a licensee's adherence to license conditions is information that may only exist when the gun owner is in-state, but information regarding the licensee's character and fitness for a continued license is not so limited. New York has just as much of an interest, for example, in discovering signs of mental instability demonstrated in New Jersey as in discovering that instability in New York. The State can only monitor those activities that actually take place in New York. Thus, New York can best monitor the behavior of those licensees who spend significant amounts of time in the State. By limiting applications to residents and in-state workers, New York captures this pool of persons. It would be much more difficult for New York to monitor the behavior of mere visitors like Bach, whose lives are spent elsewhere.

Second, we think it self-evident that, at least in Bach's case, other States, like Virginia, cannot adequately play the part of monitor for the State of New York or provide it with a stream of behavioral information approximating what New York would gather. They do not have the incentives to do so. First, other States are not bound to impose a discretionary revocation system like New York's. Therefore, they need not engage in monitoring of licensees similar to New York's monitoring. Second, because a New York license operates only in New York, other States, like Virginia, have very little to gain from a revocation of a New York license -- a revocation would affect the safety of New Yorkers, not Virginians. Obviously, New Yorkers have a much greater interest in reporting misbehavior to New York local licensing officers than do out-of-state persons and their government officers. Monitoring is

40

incentive-driven; without these incentives, there is little reason to expect effective monitoring, if any.

Moreover, Bach does not point to any adequate alternative method for New York to collect this information. Bach argues that New York can and does rely on out-of-state reporting . . . . But New York's system permits license revocations for a range of misbehavior of which serious offenses and felonies form only a small part, and Bach does not point to any reason to expect Virginia or any other State to report such behavior to New York. Bach also suggests that New York could require nonresidents to submit to more frequent renewals or periodic interviews with local officials. However, New York's proffered interest is in monitoring the relevant day-to-day behavior of license-holders; it is unclear how an accelerated renewal schedule or a round of interviews with local officials would supply this information.

Bach also suggests that reference letters or certifications from a nonresident's local authorities could fill New York's informational gap. Perhaps in other contexts references or similar informational requests might provide an adequate substitute source of information. For instance, when a State has an interest in monitoring the fitness of a licensed professional, references from persons involved in professional relationships with the licensee might be an adequate source of information. Or, where a State has an interest in monitoring the fitness of a licensed user of some universally-insured activity -- driving an automobile, for instance -- submission of updated insurance reports might prove adequate. In both examples, there may be strong arguments that another party has an equally strong incentive to monitor the licensee's relevant behavior--the professional's clients will often have a personal stake in the professional's work; the insurer will have a financial stake in the insured's risk profile. Here, however, Bach has not pointed to any monitor with a similar interest in assessing a nonresident's fitness to carry a handgun. Other States are not bound by New York's monitoring system. Thus, Bach has not shown how New York could "protect its interests through less restrictive means."

New York's monitoring rationale is distinct from rationales rejected in other Privileges and Immunities Clause cases. Most importantly, the monitoring rationale is not an interest of merely "general concern," to which a resident/nonresident distinction would not be tailored, but, rather, actually turns on where a person spends his or her time. The exception for nonresidents working in-state is consistent with this criterion. . . . New York's exception is relevant because the location of a licensee's principal employment correlates with the State's monitoring interest in a manner similar to the place of the licensee's residence--both present opportunities for the State to monitor the licensee. New York's nonresident distinction, with the in-state worker exception, is thus tailored to the State's monitoring interest.

Defendants have demonstrated that " 'non-citizens constitute a peculiar source of the evil at which the statute is aimed.' "Bach's failure to prevail on his as-applied challenge renders his facial challenge likewise invalid. Accordingly, we affirm the district court's rejection of Bach's Privileges and Immunities Clause claim.

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* * *

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Notes and Questions

1. Unlike so many other public health measures considered in this textbook, the activity that gun control legislation seeks to regulate or prohibit is specifically protected by the federal and state constitutions -- at least to some extent. That alone counsels some caution in designing and implementing gun control measures. But the protection of the Second Amendment to the federal Constitution and the protections of the “right to bear arms” that appear in most state constitutions are not easily defined and do not parallel the substantive protections of other protected activities such as speech, religion, or privacy.

Somewhat oddly, there has been virtually no guidance from the U.S. Supreme Court as to the meaning and application of the Second Amendment. The only Supreme Court decision directly addressing the Second Amendment is United States v. Miller, 307 U.S. 174 (1939), which upheld a prosecution under the 1934 federal gun control lawof individuals who were trafficking in “sawed-off shotguns” across state lines. As discussed in Wright, the Court held that since there was no possible linkage between a “well-regulated militia” and the activities of the defendants, the Second Amendment was no bar to the prosecution. Subsequent courts have debated the implications of that holding, but, in fact, the Miller decision does little more than recognize that the Second Amendment can, in some circumstances (other than those before the Court), limit the scope of otherwise constitutional federal government activities.

Subsequent to Miller, most courts, as reflected in the Wright and Silveira decisions, have adopted the narrower view that the Second Amendment is a collective right, essentially imposing limits on the extent to which the federal government can restrict the states in matters relating to their maintenance of the state’s militia. In its narrowest form, this would mean that the Second Amendment does not apply to state government limitations on guns at all.

This narrow view of the reach of the Second Amendment was adopted in Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), which observed that the Supreme Court has never held that the Second Amendment should be viewed as “incorporated” into the substantive requirements of the Fourteenth Amendment; as a consequence Quilici held that the Second Amendment was inapplicable to a local ordinance (or to any other local or state law).

The Bach decision comes to the same conclusion as Quilici, although somewhat indirectly. Most other courts reviewing local or state gun control laws, even those adopting a collective rights approach to the Second Amendment, as demonstrated by Silveira, have at least considered the Second Amendment as potentially applicable to state laws, even while denying that the limits of the Second Amendment invalidate the laws they were evaluating.

As noted in each of the Second Amendment cases excerpted in this chapter, there has been a recent trend towards reexamining the meaning and application of the Second Amendment. In United States v. Emerson,

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270 F.3d 203 (5th Cir. 2001, the Fifth Circuit, after a lengthy review of the deliberations leading to the adoption of the Second Amendment, the political and historical record of that time, and the ever-growing literature concerning the “right to bear arms,” held that the Second Amendment does protect an individual’s ability to “bear arms” (although the Emerson court went on to uphold the conviction under state law of the defendant who had possession of a handgun in violation of a court order).

Since Emerson, a number of justices and a few other courts have indicated that they may prefer the individual rights approach of Emerson to the collective rights approach of Wright, Silveira, and most other courts. In 2004, the Bush Administration also took the position (under the urging of Attorney General Ashcroft) that the Second Amendment should be viewed as an individual right. See http://www.usdoj.gov/olc/secondamendment2.htm (last visited April 2006).

2. The Nordyke decisions provide a good illustration of the unsettled status of the law in the last few years and of the issues that are the focus of this highly emotional debate. As noted in Silveira, the Ninth Circuit, sitting en banc, adopted a collective rights approach to the Second Amendment in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996). Silveira, a three-judge panel decision, affirmed that view. In the first Nordyke decision, another panel came to the same conclusion: The Second Amendment confers a collective right and, as a result, individuals cannot claim that the Second Amendment protects them from state or federal gun control laws. The second Nordyke decision was a refusal by the whole Circuit to rehear the first Nordyke decision en banc. The dissent to that decision, excerpted supra, outlines the arguments in support of the individual right perspective (and makes reference to the other decisions that also have taken a “new look” at these issues.)

3. One related issue that has not been addressed at length in any of these cases is the applicable level of judicial scrutiny, if and when the Second Amendment is applied to a state or federal law. As reviewed in earlier chapters, when the government acts in a manner that affects constitutionally protected rights such as privacy, speech, or religion, that fact does not establish an absolute bar to government action, but instead leads the courts to more closely examine the government’s purposes or objectives and the means by which they are sought to be achieved. Even speech, perhaps the most closely protected constitutional right, can be subject to regulation or even prohibited altogether if the government’s purpose is “compelling” and the means for achieving that purpose are “sufficiently tailored.” Assuming the Second Amendment does apply to a state or federal gun control law, that is only the beginning of the inquiry; the courts must still apply some enhanced level of judicial review to that legislation. In this regard, Emerson is a good illustration: Even while recognizing that the “right to bear arms” is implicated by a state law, it still upheld the enforcement of that law (with, unfortunately, little discussion of the applicable standard of judicial review).

What governmental purposes might be sufficiently important to justify a regulation or denial of “the right to bear arms”? How narrow or “tailored” does that legislation have to be? Is a general objection

44

to some types of guns, e.g., assault rifles, enough of a justification for a categorical ban? If misuse of a gun is a crime, is a prohibition on the possession of guns to avoid that misuse an overbroad effort to prevent the crime? Perhaps most important from a public health perspective, will the courts require advocates of gun control to show empirical support for their claims that one or another gun control law is constitutionally justified?

4. A second relatively-overlooked (to date) issue arises from the fact that some, though not all, states have a “right to bear arms” in their state constitutions. Often these state constitutional provisions are worded differently than the Second Amendment. As such, they may provide a wholly separate basis for opposing a state or local gun control law, one that may be of special relevance in those jurisdictions that view the Second Amendment as inapplicable to the states. More broadly, the state right could be interpreted as an individual one, even by a court or justice inclined to read the Second Amendment as protecting only “collective rights.”

Interestingly, this was a non-issue in the Ninth Circuit decisions in Lockyer and Nordyke since there is not an explicit “right to bear arms” in the California state constitution. In other states with state constitutional rights to bear or keep arms, the issue could be much more important if not wholly determinative.

The State of Washington provides an interesting example. Washington State Constitution article 1, § 24 provides:

The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.

This provision clearly enough contemplates an individual right, which would limit the state’s ability to regulate or prohibit various forms of use or possession of arms. But as applied by the state’s supreme court, this individual right is subject to “reasonable regulation under the state’s police powers.” What this means varies from context to context but does not appear to be the kind of stringent protection of the individual’s right typically seen in privacy, speech, or religion cases. See, e.g., Seattle v. Montana, 129 Wash. 2d 583, 919 P.2d 1218 (1996)(local ordinance banning the possession of dangerous knives upheld); State v. Schelin, 147 Wash. 2d 562, 55 P.3d 632 (2002)(evidence of gun collection admissible where constructive possession of firearms is an element of the crime); cf. State v. Rupe, 101 Wash. 2d 664, 683 P.2d 571 (1984)(admission into evidence of defendant’s gun collection in penalty phase of homicide prosecution reversible error).

Other states also have recognized a state constitutional individual right to bear arms, but also have allowed the state some discretion in designing and implementing gun control legislation. Again, the critical issue may be the state courts’ formulation of the applicable level of judicial scrutiny. For example, in Mosby v. Devine, 851 A.2d 1031 (R.I. 2004), the Rhode Island Supreme Court held that the state constitution creates an individual (not collective) right to bear

45

arms, but that the state’s gun permit law was a reasonable exercise of the police power (implying a minimal level of judicial review). For a similar decision upholding a state law banning assault weapons, see Benjamin v. Bailey, 662 A.2d 1226 (Conn. 1995).

Kentucky’s constitution protects an individual right to bear arms, subject only to legislative regulation of carrying concealed weapons. Nonetheless, the Kentucky Supreme Court recently recognized a broader zone of permissible legislative restriction of the right. In Posey v. Commonwealth, 185 S.W.3d 170, (Ky. 2006), the defendant, a felon, was convicted under a state law that made it a crime for a felon to possess a firearm. Posey claimed that the state law violated the state’s constitution. Section 1(7) of the Kentucky Constitution reads:

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned . . . [t]he right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

The Kentucky Supreme Court disagreed:

While we agree that it may be reasonable to infer from this language . . . that the 1890 constitutional convention desired to expand the lot of persons entitled to possess firearms, we disagree that this expansion reasonably or necessarily included convicted felons. It is generally accepted that certain classes of persons are thought to lack the ability or the natural attributes to possess many of the rights which are recognized under our constitution. For example, none of the parties dispute the premise that children and insane or incompetent persons are likely not endowed with the natural right to bear arms. . . . Historically, convicted felons were similarly accorded diminished status when it came to being endowed with certain natural rights.

Indeed, the view prevailing at the time our modern constitution was formulated was that felons were not endowed with the natural right to possess firearms. . . . Thus, without further evidence to suggest that convicted felons were somehow accorded more status by the 1890 constitutional convention than was historically attributed to them, we cannot say that the use of the word "men" within our modern constitution was intended to necessarily encompass those men who were convicted felons.

. . . .

In fact, the concept of an individual right to bear arms sprung from classical republican ideology which required the individual holding that right to maintain a certain degree of civic virtue. . . . This concept of civic virtue is similarly reflected in other provisions contained in [the state constitution], such as the rights of all persons to life, liberty, and the pursuit of happiness. Yet, neither party would claim that these rights are absolute or somehow immune from reasonable limitations in the interest of public safety and welfare.

. . . .

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. . . In balance, we defer to the reasonable interpretation of our legislature, finding that the constitution permits some reasonable regulation of the people's right to bear arms, but only to the extent that such regulation is enacted to ensure the liberties of all persons by maintaining the proper and responsible exercise of the general right contained in Section 1(7).

185 S.W.3d at 177-78.

5. Note that the Bach decision also considered a separate constitutional problem. Bach was claiming that the state’s requirement that handgun licenses only be issued to residents violated his privileges and immunities as secured by Article IV, § 2 of the Constitution (as opposed to the privileges and immunities referenced in § 1 of the Fourteenth Amendment). Essentially Article IV prohibits states from discriminating between residents and nonresidents with regard to unspecified “privileges and immunities.” The courts have had few opportunities to interpret which activities are regarded as “privileges and immunities” or the discretion allowed to the states. The Bach court avoids the first problem by assuming for purposes of argument that a hand gun license would fall within the category of “privileges and immunities,” but holding that the state had a sufficient justification for denying licenses to nonresidents notwithstanding the prohibition of Article IV, § 2. For background, see United Building & Construction Trades Council of Camden County & Vicinity v. Mayor and Council of City of Camden, 465 U.S. 208 (1984).

6. As mentioned in several of the excerpts in this chapter, a separate constitutional debate was sparked by the enactment of the “Brady Act” in 1993, amending the Gun Control Act of 1968, 18 U.S.C. § 921 et seq., requiring dealers to be licensed and requiring dealers to make background checks to determine whether purchasers of handguns were eligible under state and federal law to own handguns. The 1993 amendments included a requirement that gun dealers submit background information to state and local law enforcement agencies who were required to make “reasonable efforts” to verify the accuracy of the information obtained by the dealers. The legislation anticipated that eventually an “instant” verification system would be developed.

In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court held that the requirements relating to state and local law enforcement were unconstitutional. According to the Court, Tenth Amendment principles prohibit the Congress from imposing mandatory obligations on state officials (and their local counterparts). The Court did not, however, invalidate the entire “Brady Act” (as suggested by one of the authors above ) nor did the Court in any way rely on the Second Amendment or give any significance to the facts that this was a federal law regulating the ownership or sale of guns. The focus of the decision was federalism, specifically the impermissibility of the federal government’s directly imposing regulatory responsibilities on state and local officials.

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D. THE ROLE OF LITIGATION IN DETERMINING PUBLIC POLICY ON GUN USE AND OWNERSHIP

1. The Government as Plaintiff

CITY OF CINCINNATI v. BERETTA U.S.A. CORP.95 Ohio St. 3d 416, 768 N.E.2d 1136 (2002)

Sweeney, Justice.

* * *

On April 28, 1999, plaintiff-appellant, the city of Cincinnati, filed a complaint against fifteen handgun manufacturers, three trade associations, and one handgun distributor, seeking to hold them responsible under nuisance, negligence, and product liability theories of recovery, for the harm caused by the firearms they manufacture, sell, or distribute. The gist of the complaint is that appellees have manufactured, marketed, and distributed their firearms in ways that ensure the widespread accessibility of the firearms to prohibited users, including children and criminals.

. . . .

This case represents one of a growing number of lawsuits brought by municipalities against gun manufacturers and their trade associations to recover damages associated with the costs of firearm violence incurred by the municipalities. . . .

. . . .

A. Public Nuisance

Appellant alleged in its complaint that appellees have created and maintained a public nuisance by manufacturing, marketing, distributing, and selling firearms in ways that unreasonably interfere with the public health, welfare, and safety in Cincinnati and that the residents of Cincinnati have a common right to be free from such conduct. Appellant further alleged that appellees know, or reasonably should know, that their conduct will cause handguns to be used and possessed illegally and that such conduct produces an ongoing nuisance that has a detrimental effect upon the public health, safety, and welfare of the residents of Cincinnati.

. . . [A]ppellees maintain that Ohio's nuisance law does not encompass injuries caused by product design and construction, but instead is limited to actions involving real property or to statutory or regulatory violations involving public health or safety. We disagree. . . . "Unreasonable interference" includes those acts that significantly interfere with public health, safety, peace, comfort, or convenience, conduct that is contrary to a statute, ordinance, or regulation, or conduct that is of a continuing nature or one which has produced a permanent or long-lasting effect upon the public right, an

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effect of which the actor is aware or should be aware. . . . Contrary to appellees' position, there need not be injury to real property in order for there to be a public nuisance.

. . . .

Appellees further argue that they cannot be held liable for the harm alleged because they did not have control over the alleged nuisance at the time of injury. Contrary to appellees' position, it is not fatal to appellant's public nuisance claim that appellees did not control the actual firearms at the moment that harm occurred.

Appellant's complaint alleged that appellees created a nuisance through their ongoing conduct of marketing, distributing, and selling firearms in a manner that facilitated their flow into the illegal market. Thus, appellant alleged that appellees control the creation and supply of this illegal, secondary market for firearms, not the actual use of the firearms that cause injury. Just as the individuals who fire the guns are held accountable for the injuries sustained, appellees can be held liable for creating the alleged nuisance.

Appellees also contend that appellant's nuisance claim cannot go forward because the distribution of firearms is highly regulated and covers "legislatively authorized conduct.". . . Even though there exists a comprehensive regulatory scheme involving the manufacturing, sales, and distribution of firearms . . . the law does not regulate the distribution practices alleged in the complaint.

Finally, appellees argue that the public nuisance claim fails because appellant has failed to plead an underlying tort to support either an absolute public nuisance claim based on intentional or ultra-hazardous activity or a negligence-based claim of qualified public nuisance. However, the complaint clearly alleged both intentional and negligent misconduct on appellees' part. . . .

B. Negligence

Appellant further alleged in its complaint that appellees were negligent in failing to exercise reasonable care in designing, manufacturing, marketing, advertising, promoting, distributing, supplying, and selling their firearms without ensuring that the firearms were safe for their intended and foreseeable use by consumers. In addition, the complaint alleged that appellees failed to exercise reasonable care to provide a full warning to consumers of the risks associated with firearms.

In order to maintain a negligence action, the plaintiff must show the existence of a duty, a breach of that duty, and that the breach of that duty proximately caused the plaintiff's injury.

. . . [T]he negligence issue before us is not whether appellees owe appellant a duty to control the conduct of third parties. Instead, the issue is whether appellees are themselves negligent by manufacturing, marketing, and distributing firearms in a way that creates an illegal firearms market that results in foreseeable injury. Consequently, the "special relationship" rule is not determinative of the issue presented here. . . .

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. . . .

C. Product Liability

Appellant also seeks recovery under two products liability theories, for defective design and failure to warn. In its complaint, appellant alleged that the guns manufactured or supplied by appellees were defective because they do not incorporate feasible safety devices that would prevent unauthorized use and foreseeable injuries. As to the cause of action for failure to warn, appellant alleged that appellees manufactured or supplied guns without adequate warning of their dangerousness or instruction as to their use.

The court of appeals upheld the dismissal of these claims, finding that the complaint was deficient because it did not allege with specificity "a single defective condition in a particular model of gun at the time it left its particular manufacturer.". . .

. . . [S]ince Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity. . . . [A] complaint need only contain "a short and plain statement of the claim showing that the party is entitled to relief." Consequently, as long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss. Appellant's complaint withstands this test of notice pleading, since it alleged that appellees had manufactured or supplied defective guns without appropriate safety features.

Nevertheless, appellant is precluded from bringing its statutory product liability claims. Under the Product Liability Act, a claimant (including a governmental entity) cannot recover economic damages alone. Instead, in order to fall within the purview of the Act, and to be considered a "product liability claim". . . the complaint must allege damages other than economic ones. . . . However, the failure to allege other than economic damages does not necessarily destroy the right to pursue common-law product liability claims.

We likewise find that appellant can bring a common-law failure-to-warn claim. . . . To recover under a failure-to-warn theory at common law, the plaintiff must prove that the manufacturer knew or should have known, in the exercise of reasonable care, of the risk or hazard about which it failed to warn and that the manufacturer failed to take precautions that a reasonable person would take in presenting the product to the public. . . .

The court of appeals reasoned that the failure-to-warn claim could not go forward because the defendants owe no duty to warn of the dangers associated with firearms, which are open and obvious dangers. Although, in general, the dangers associated with firearms are open and obvious, appellant has alleged sufficient facts in its complaint to overcome a motion to dismiss. . . . [S]ome of the allegations involve risks that are not open and obvious, such as the fact that a semiautomatic gun can hold a bullet even when the ammunition magazine is empty or removed. . . .

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II. Remoteness

Appellees maintain that even if appellant could establish any of the elements of the individual torts it alleged, the injuries to the city are still too remote to create liability on the part of the gun manufacturers and trade associations. In essence, appellees argue that remoteness bars recovery, since the causal connection between the alleged wrongdoing and the alleged harm is too tenuous and remote and because the claims asserted are indirect and wholly derivative of the claims of others.

Remoteness is not an independent legal doctrine but is instead related to the issues of proximate causation or standing. Thus, a complaint will fail on remoteness grounds if the harm alleged is the remote consequence of the defendant's misconduct (causation) or is wholly derivative of the harm suffered by a third party (standing).

. . . [In] handgun litigation, the courts have taken divergent positions. While some courts have found that remoteness bars recovery [others] have rejected the remoteness argument. . . .

The complaint in this case alleged that as a direct result of the misconduct of appellees, appellant has suffered "actual injury and damages including, but not limited to, significant expenses for police, emergency, health, prosecution, corrections and other services.”. . . [I]n taking the allegations in the complaint as true, we find that the alleged harms are direct injuries to appellant, and that such harms are not so remote or indirect as to preclude recovery by appellant as a matter of law.

With regard to whether causation is too remote in this case, we turn to the three factors . . . . The first concern, difficulty of proof, is minimal in this case, since appellant is seeking recovery, in part, for police expenditures and property repairs, which can be easily computed. Under the second factor, there is little risk of double recovery, since appellant is seeking recovery for injuries to itself only. . . . Finally, no other person is available to bring suit against appellees for these damages. Under the third factor, [we consider] whether "the general interest in deterring injurious conduct" will be better served by requiring that suit be brought by more directly injured victims. Although appellant is indirectly attempting to protect its citizens from the alleged misconduct by the gun manufacturers and trade associations, appellant is seeking recovery for its own harm. Under these circumstances, the general interest will be best served by having this plaintiff bring this lawsuit. . . .

III. Recoupment of Cost of Governmental Services

Appellant alleged in its complaint that due to the misconduct of appellees, it has sustained damages, including "significant expenses for police, emergency, health, corrections, prosecution and other services." Appellees contend that the cost of these public services is non-recoverable, since these are services the city is under a duty to provide.

Although a municipality cannot reasonably expect to recover the

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costs of city services whenever a tortfeasor causes harm to the public, it should be allowed to argue that it may recover such damages in this type of case. . . . [T]he misconduct alleged in this case is ongoing and persistent. The continuing nature of the misconduct may justify the recoupment of such governmental costs. Therefore, if appellant can prove all the elements of the alleged torts, it should be able to recover the damages flowing from appellees' misconduct. . . .

IV. Constitutional Arguments

Appellees further argue that appellant is attempting to regulate a national firearms industry and, therefore, its claims are barred under the Commerce Clause and the Due Process Clause of the United States Constitution.

. . . .

We find no impediment in the Due Process or Commerce Clause that requires dismissal of this lawsuit.

V. Conclusion

In conclusion, we find that the court of appeals erred in upholding the dismissal of the complaint, since sufficient facts have been alleged to withstand scrutiny under Civ. R. 12(b)(6). Reversal of the judgment, however, does not mean that appellant will prevail upon remand. What it does mean is that appellant has alleged the facts necessary to withstand a motion to dismiss and will now have the opportunity to pursue its claims. While we do not predict the outcome of this case, we would be remiss if we did not recognize the importance of allowing this type of litigation to go past the pleading stages. As two commentators so aptly noted: "If as a result of both private and municipal lawsuits, firearms are designed to be safer and new marketing practices make it more difficult for criminals to obtain guns, some firearm-related deaths and injuries may be prevented. While no one should believe that lawsuits against gun manufacturers and dealers will solve the multifaceted problem of firearm violence, such litigation may have an important role to play, complementing other interventions available to cities and states."

. . . .

Moyer, Chief Justice, dissenting.

I respectfully dissent from the majority's decision. Appellant alleges an "epidemic of handguns in the hands of persons who cannot lawfully possess them, which has brought terror to the streets, schoolyards, playgrounds, and homes of Cincinnati and has resulted in thousands of preventable shootings of innocent citizens, especially children and police officers." These are serious allegations, and portray a city under siege virtually overrun with criminals bearing illegally obtained handguns. However, the issue before us is not whether the city could prove that appellees fail to take reasonable measures that would prevent handguns they sell from being possessed by criminals and minors. Nor is the issue whether this alleged failure "unreasonably interferes with the public's health, safety, welfare, and peace," as alleged by appellant. The issue is not whether we agree with appellant

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that there exists in Cincinnati an epidemic of violence due to handguns illegally obtained.

This appeal simply involves a question of law: Does the city have standing to assert its claims? The majority holds that appellant has standing. I disagree with this conclusion, and would find the city's alleged injuries to be too remote from the conduct of appellees and too derivative of the harms suffered by victims of handgun violence to establish proper standing to sue the appellees.

As the majority's discussion regarding remoteness and proximate causation aptly demonstrates, the harm alleged by the city must not be a remote or tenuous consequence of the appellees' alleged misconduct. . . . The limitation of proximate causation rests in a very large part on the nature and degree of the connection between the defendant's acts and the events of which the plaintiff complains.

. . . .

In the instant case, the city characterizes appellees as corporations that design, manufacture, advertise, import and/or sell firearms that can be fired by unauthorized or unintended users in Cincinnati. Therefore, the links in the factual chain between appellees' conduct and harms [are from] manufacturer to distributor or wholesaler, distributor or wholesaler to retailer, retailer to authorized or unauthorized buyers, and ultimately accidental misuse by authorized buyers or criminal misuse by unauthorized buyers. Accidental and criminal misuse of handguns then results in increased expenses for the city for "additional police protection, overtime, emergency services, pension benefits, health care, social services and other necessary facilities and services." In addition, the city alleges that it has sustained "a loss of investment, economic development and tax revenue due to lost productivity -- all associated with the defective design, and negligent manufacture, assembly, marketing, distribution, promotion and sale of guns."

. . . The very fact that there are multiple links between the conduct of the manufacturers and the harms suffered by the city demonstrates the difficulty in determining damages. For example, where a criminal wrongdoer harms another with an illegally obtained handgun, that criminal offender is responsible for injuries caused to the victim. Depending upon how the wrongdoer obtained the handgun, there may be a number of persons linking the offender to the retailer or distributor, who may also be liable. Additionally, there will be enormous difficulties in determining exactly how much of municipal expenses such as police, emergency services, pension benefits, health care, social services and other necessary facilities and services, as well as loss of revenue and investment and economic development, are a result of only the manufacturers' actions and not the actions of the criminal wrongdoer, the retailer, distributor, or persons who possess guns legally.

Finally, factors other than the manufacture, advertisement, distribution, and retail sales of handguns may contribute to the various harms claimed by the plaintiffs. . . . [T]hese may include "illegal drugs, poverty, illiteracy, inadequacies in the public educational system, the birth rates of unmarried teenagers, the disintegration of

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family relationships, the decades-long trend of the middle class moving from city to suburb, the upward track of health costs generally, and unemployment.

. . . [I]n addition to remoteness, the harms suffered by the plaintiffs were derivative of those suffered by the victims and their families. In other words, the city would not suffer the harm of increased costs for municipal services but for the fact that certain residents of the city had been the primary victims of handgun violence. . . .

The majority characterizes this first factor as one of "difficulty of proof," and believes the difficulty to be minimal, as the city "is seeking recovery, in part, for police expenditures and property repairs, which can be easily computed." However, in order to prove damages, the city must first identify which incidents involved the use of illegal handguns or legal handguns in the hands of unauthorized users, and then link that portion of the city's costs to that incident. In many instances the weapon used in a crime is never recovered. How, under these circumstances, can the city prove that the weapon involved was either illegal or in the hands of an unauthorized user?

. . . .

The question is not whether the city can prove that it has suffered damages, but whether the city can prove that those damages are attributable to the wrongdoing of the gun manufacturers as opposed to other, independent factors. Given the multiple links in the factual chain between the gun manufacturers' conduct and harms suffered by the city, the derivative nature of the harms when viewed in conjunction with harms suffered by the primary victims of handgun violence, as well as the multiple societal factors that contribute to the misuse of handguns, I would find a very high degree of difficulty in determining the amount of the city's damages attributable to the conduct of the gun manufacturers.

. . . .

In its complaint, the city paints a horrific picture of murder, assault, suicides, and accidental killings involving either illegal handguns or legal handguns in the hands of unauthorized users. As a result of these violent acts, the city, "in its role of providing protection and care for its citizens, . . . provide[s] or pay[s] for additional police protection, emergency services, pension benefits, health care and other necessary services due to the threat posed by the use of defendants' products." In addition, the city alleges harm as a result of "injuries to certain of its residents and police officers caused by the defendants' products, as well as by the loss of substantial tax revenue."

Taking, as we must, these pleadings as true, it follows that for practically every harm the city has suffered, there is at least one injured victim standing between the city and the gun manufacturers. In its complaint, the city states that it is seeking reimbursement for police, emergency, health, corrections, prosecution, and other services. Support for the conclusion that this is a derivative action is found in the complaint itself, which expressly connects the city's damages to

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death and injuries by individual citizens allegedly resulting from illegal handguns or the use of legal handguns by unauthorized users. This would suggest that many of the city's expenses would not have been incurred but for injuries to the primary victim. For example, the city may incur expenses for police, emergency services, and health care when someone has been injured because of the use of an unauthorized or illegal handgun. The injured person may also have a claim against the gun manufacturers.

{Our prior case law] requires courts to analyze not whether these damages are capable of being proven, but whether the difficulties inherent in fashioning complicated rules apportioning damages among multiple plaintiffs is justified. Thus . . . because directly injured victims can generally be expected to vindicate the law "as private attorneys general" without the problems described by factors one and two, the need for courts to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct. . . .

. . . .

Cook, Justice, dissenting.

Like the Chief Justice, I would find that Cincinnati's negligence-based claims are barred by remoteness principles. I write separately, however, because our views on remoteness ultimately diverge in one subtle respect. I also write separately to illustrate why the city has failed to state cognizable claims for products liability and public nuisance.

. . . I would find that the remoteness of the alleged harm precludes the city from establishing proximate cause as a matter of law. . . .

. . . .

. . . [R]emoteness principles also support dismissal of the city's causes of action sounding in products liability. Remoteness aside, however, the city's claims also fail for their failure to plead a compensable injury.

The majority correctly determines that the city has failed to state a valid statutory claim for relief insofar as an action for purely economic harm is not maintainable under the Ohio Products Liability Act. I disagree, however, with the majority's holding that the city may maintain its common-law products-liability claims alleging defective design and failure to warn. Even assuming that the Act does not preempt these claims . . . the city has not pleaded valid common-law causes of action. As the majority acknowledges, the city pleaded facts suggesting that it has suffered purely economic damages (i.e., increased municipal costs allegedly attributable to the actions of the various defendants). The majority cites no case, however, in which we have allowed products liability to be a viable theory of recovery for a plaintiff situated similarly to the city in this case -- namely, a plaintiff whose economic harm is not attributed to having been a user, consumer, or foreseeable person present at the time of product failure. . . .

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As to the public-nuisance cause of action, it is true that principles of remoteness do not necessarily prevent the city from stating a valid claim. . . . Nevertheless, even this cause of action fails because the reach of public-nuisance law does not go as far as the city would have us extend it.

First, the city's allegations of harm cut against holding the named defendants responsible under a public-nuisance theory. The defendants' allegedly wrongful conduct would never ripen into a public nuisance without the conduct of various unnamed third parties, such as criminals and persons who negligently allow minors to obtain guns. . . . Where acts of independent third parties cause the alleged harm, it cannot be said that the defendants -- here, gun manufacturers, trade associations, and a gun distributor -- have the requisite degree of control over the source of the nuisance to allow liability.

Second, to allow the public-nuisance doctrine to reach the

defendants in this case amounts to an unwarranted legislative judgment by this court. By its decision today, the majority subjects the defendants to potential nuisance liability for the way they design, distribute, and market lawful products. In extending the doctrine of public nuisance in this manner, this court takes the ill-advised first step toward transforming nuisance into "a monster that would devour in one gulp the entire law of tort."

* * *

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IN RE FIREARMS 126 Cal. App. 4th 959, 24 Cal Rptr. 3d 657 (2005)

Marchiano, Judge.

* * *

In 1999, the city attorneys of several jurisdictions, including the cities of San Francisco, Berkeley, Sacramento, and the counties of San Mateo and Alameda, filed an unfair business practices and nuisance action on behalf of the general public in San Francisco Superior Court against a large number of manufacturers and distributors of handguns and three trade associations, alleging that the defendants marketed and distributed handguns in violation of the UCL [the state’s unfair competition law].

. . . .

The complaints in the three coordinated actions generally alleged that the defendants market, distribute, promote and design handguns in a manner that facilitates the use of the weapons to commit violent crime, fails to incorporate safety features, deceives the public about the dangers of firearms, circumvents federal, state and local laws and creates a public nuisance. Plaintiffs characterized their case as one that sought civil penalties and injunctive relief for the selling of guns to retail dealers that supplied the illegal black market with firearms. Plaintiffs contended that they possessed evidence showing that each defendant repeatedly sold its guns to "high-risk" retail dealers who were associated with large quantities of guns that were traced by law enforcement authorities as having been used in crimes.

In early 2001, defendants moved for an order compelling the plaintiffs to disclose facts supporting their claims. On March 26, 2001, the court granted the request and ordered plaintiffs to disclose evidence reflecting how criminals and others acquired the firearms manufactured and/or sold by defendants and whether the manner of acquisition had a factual nexus to defendants' alleged conduct.

Following multiple disagreements over discovery matters, certain defendants, including Beretta U.S.A. Corp. and Sturm, Ruger & Company, Inc., moved for an order precluding evidence that defendants' conduct caused the acquisition of firearms by criminals. The preclusion request was based on plaintiffs' failure to produce documents to support its sales and distribution theories of liability. Plaintiffs responded that they were not required to link a specific instance to a particular defendant and proposed to prove their case with expert testimony based on statistical studies of illegal gun purchases. The court denied the motion, but noted that without access to the evidentiary foundation for expert testimony, the expert opinions would be nothing more than policy arguments.

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Manufacturer, distributor and retailer defendants renewed their arguments in a summary judgment motion. The motion was based on the arguments that plaintiffs could not establish a causal connection between defendants' business practices and the acquisition of firearms by criminals, and that expert opinion could not be substituted for evidence. Specifically, defendants' statement of undisputed facts consisted of 10 numbered statements contending that there was no evidence of any incident connecting a defendant with a shooting or a criminal's acquisition of a weapon through an improper purchase from a retail source.

Plaintiffs responded with a separate statement of 478 numbered items in 104 pages, and what the trial court characterized as "a mountain of argument" and "120 pounds of paper." The court noted that most of the purported evidence submitted by plaintiffs consisted of inadmissible hearsay studies, monographs and reports, but did not make specific evidentiary rulings.

On April 10, 2003, the trial court filed a carefully reasoned and thorough 45-page opinion granting the omnibus motion of the manufacturer and distributor defendants. The court examined plaintiffs' evidence and recognized that it showed only that there are some bad retailers whose actions facilitate the transfer of guns to criminals. . . . The court also noted the definition of "unfair competition" . . . and reasoned that under any test, there must be some causal connection between the harm and the conduct of the defendants.

The court deduced that the only connection between the high-risk gun sales practices and the gun manufacturers was their failure to police the entire gun industry. Absent some connection between any practice of the gun manufacturer defendants and the harm caused by illegal guns, the trial court found no unfairness could be shown. The court also stated that defendants' mere failure to implement changes in their business practices does not establish a UCL violation or a public nuisance.

In addition, the court also granted summary judgment for the trade association defendants, finding no authority for the argument that a trade association had a duty to adopt firearms safety standards or that the failure to do so was connected to harm to the public.

The court denied summary judgment to distributor defendants Ellett Brothers, Inc., MKS Supply, Inc., and Southern Ohio Gun Distributors, stating that they failed to negate plaintiffs' evidence that they violated state law by distributing firearms to purchasers without receiving documentation of the purchasers' possession of state and local firearms dealer licenses. The court also denied summary judgment to retailer defendants Andrew's Sporting Goods, Inc. (Andrew's), and Trader's Sports, Inc. (Trader's), because the evidence, in the form of gun trace data, raised questions of fact concerning involvement in high-risk business practices.

Judgment was entered dismissing manufacturer, distributor and trade association defendants according to the summary judgment orders. . . .

DISCUSSION

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We are aware of the toll taken on society by firearm violence and

the improper acquisition and use of firearms. . . .

Plaintiffs in this case seek to hold the gun manufacturer and distributor defendants liable, not for any wrongful or illegal action taken by them, but for failing to take proactive steps to control the practices of a small percentage of the federal firearms licensees (FFL) that they ultimately supply. These few FFL's to whom the gun distributors supply firearms have allegedly engaged in various business practices that experts state are associated with a high risk that guns will be diverted to criminals. After considering the voluminous expert studies and declarations submitted in opposition to the defendants' motion for summary judgment, the trial court found that the evidence did not support the basic theory of the plaintiffs' case.

Plaintiff’s legal theory of expanding UCL liability to those who profit from downstream dealer sale of guns that end up in criminal hands is creative and thought provoking. But based on the evidence presented, we conclude that endorsing the theory in this case would stretch the already expansive boundaries of the UCL beyond any principled reading of the statute. In addition, supervision of the sweeping measures sought would be a Herculean task for court oversight.

. . . .

The complaints allege that the defendants have marketed handguns using practices that encourage sales to unauthorized users without adequately monitoring their distributors and dealers or setting standards for distributors and dealers regarding how to legally and responsibly sell handguns.

Specific unfair policies include: failing to place controls on the actions of retail dealers; distribution policies that make sales to straw men likely; sales of large numbers of handguns in a single transaction; allowing sales to "kitchen table" dealers who do not maintain retail places of business; failing to prevent sales by private citizens at gun shows; distributing guns to dealers without ensuring that the dealers adequately check purchasers' identification for accuracy; distributing more guns than defendants reasonably expect to sell to legal purchasers; and failing to monitor gun sales in jurisdictions outside California with weak gun control laws.

In addition, the complaints alleged that defendants design guns without making serial numbers tamper proof, and that they design handguns to appeal to criminals without incorporating safety features to prevent unintentional shootings and unauthorized use. The complaints also alleged that defendants engaged in a "campaign of deception and misrepresentation concerning the dangers of their firearms" by implying that gun ownership will increase home safety. The parties have not addressed issues regarding gun design or false advertising on appeal.

Each of the three complaints also alleged creation of a public nuisance. Specifically, the complaints alleged that California residents are injured and killed by firearms supplied to criminals. The complaints alleged that defendants' conduct results in supplying thousands of handguns to the illegitimate secondary market that are

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illegally possessed and remain in the hands of criminals for years.

Moving Party's Showing To Negate Plaintiffs' Claims

The theory of defendants' motion for summary judgment was that plaintiffs had no evidence that any defendants' act or omission caused any criminal to acquire a firearm. In addition, they argued that there was no evidence that any design feature of a firearm caused a shooting. Defendants also emphasized the existing extensive array of federal, state and local laws regulating firearms and urged the court to reject what defendants characterized as plaintiffs' mere policy arguments.

Defendants argued that plaintiffs did not produce evidence of a factual nexus between any defendant and incidents of firearm purchases by straw men, criminal acts by retailers, sales at gun shows or swap meets, sales to "kitchen table" vendors, firearms acquired by theft, multiple sales, acquisition of guns by criminals, accidental shootings, or intentional shootings.

Defendants relied on the deposition testimony of several of plaintiffs' experts, including Gerald Nunziato, a former official of the United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms (ATF) and Joseph Vince, a former chief of the ATF and president of Crime Gun Solutions, a company that assists police in the collection and analysis of crime gun data. Excerpts from depositions were offered to show the absence of any link between defendants' conduct and the alleged harm. . . .

Plaintiffs' Attempted Showing of a Triable Issue of Fact

Plaintiffs argued that an action brought under [the UCL] assesses only the extent to which a defendant has created an unreasonable risk to the public, and does not concern concepts of negligence law such as duty and causation. They presented studies showing the methods used by criminals to obtain guns from irresponsible gun retailers, including straw man purchases, thefts, and multiple sales.

Plaintiffs offered declarations from firearm experts stating their opinions that retailers linked to a significant number of such sales were more likely than not engaged in sales to gun traffickers or high-risk business practices that facilitate diversion of guns to the criminal market. . . .

The evidence presented by plaintiffs was predominately information pertaining to the gun industry as a whole. Plaintiffs presented several gun tracing profiles . . . concluding that firearms recovered in crimes in California were sold through FFL's that exhibited many of the ATF's gun trafficking indicators. The ATF's information was available to any defendant who requested it.

One tracing profile showed FFL's associated with each defendant distributor, the number of guns sold by the FFL and included in the crime gun trace database from 1995 to 2001 (with dealer identities redacted after 1996) and showed percentages of guns with high-risk factors. Plaintiffs also offered a California dealer profile that associated high-risk gun trafficking indicators with each FFL.

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Plaintiffs' expert Gerald Nunziato concluded that the profiles and data he reviewed indicated that all defendants sold firearms that were recovered in crimes and traced. He also concluded that the traced guns were sold through numerous dealers that showed significant high-risk indicators of gun trafficking. He also opined that the defendants could have gathered and analyzed the same data plus additional data from their own files to help identify the high-risk dealers and utilize this information to "self-police their distribution partners. . . ."

Plaintiffs also offered the declaration of Carole Bridgewater, former gun shop owner and secretary/treasurer of the National Alliance of Stocking Gun Dealers stating that the gun industry has known "for a long time that there are serious problems in the way it distributes its products." . . .

Attorney Robert Ricker, a former gun lobbyist, stated in his declaration that gun manufacturers and distributors know of illegal practices by some retailers, but adopt a "see-no-evil, hear-no-evil, speak-no-evil" approach rather than requiring retailers to stop making questionable gun sales. He stated that industry leaders stifled discussions about the gun industry taking voluntary action to control the distribution of guns. In Ricker's opinion, if manufacturers investigated retailers whose records reflect a disproportionate number of crime gun traces, high-risk retail gun transfers would decrease.

Plaintiffs listed a number of proposed business practices that manufacturers and distributors could require of all their dealers that they claimed would cut down on black market sales of guns. . . .

. . . .

UCL Definition of "Unfair"-Need For A Showing of Causation

[The UCL] defines unfair competition to "mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the Business and Professions Code]. The statute does not define the term "unfair," but . . . our Supreme Court signaled the need to put restrictions on its potentially limitless application.

Plaintiffs argue that Cel-Tech does not apply in this case and urge use of the pre-Cel-Tech definitions of an unfair practice. Plaintiffs contend that the trial court applied the wrong standard in deciding whether there was an issue of fact as to whether defendants' actions were "unfair" under the UCL.

. . . .

Plaintiffs argue that a finding of unfairness . . . requires only a showing that defendants engaged in a business practice that offended the public policy of keeping guns out of the hands of criminals. Under the balancing test, plaintiffs argue that distributing guns to retailers who engage in high-risk practices is so dangerous to the public as to outweigh any benefit of defendants' business practice. . . .

According to plaintiffs, the trial court improperly injected the tort element of legal causation into the analysis. . . . We do not read

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the court's comment so strictly. In context, the court was referring, not to concepts of legal causation, but to the need to show some connection between conduct by defendants and the alleged harm to the public. Even in a UCL unfairness case, there must be such a connection. Without evidence of a causative link between the unfair act and the injuries or damages, unfairness by itself merely exists as a will-o'-the-wisp legal principle.

. . . .

In [Cel-Tech] our Supreme Court rejected prior definitions of unfairness as "too amorphous." "Although the unfair competition law's scope is sweeping, it is not unlimited. Courts may not simply impose their own notions of the day as to what is fair or unfair." For that reason, the court took care to ensure that the definition of unfairness to competitors was "tethered to some legislatively declared policy or proof of some actual or threatened impact on competition." . . .

Accordingly, the court defined "unfair" in the context of an action by a plaintiff claiming injury from a competitor's act as conduct "that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." The court expressly stated that its definition is not applicable to actions brought by consumers, but its disapproval of the older unstructured definitions of unfairness cannot be ignored.

As this court noted in [a subsequent decision] "Cel-Tech, however, may signal a narrower interpretation of the prohibition of unfair acts or practices in all unfair competition actions and provides reason for caution in relying on the broad language in earlier decisions that the court found to be too amorphous. Moreover, where a claim of an unfair act or practice is predicated on public policy, we read Cel-Tech to require that the public policy which is a predicate to the action must be tethered to specific constitutional, statutory or regulatory provisions.

. . . .

We follow the lead of the Cel-Tech court in consulting parallel federal authority to assist in determining the appropriate reach of the UCL. Federal authorities clearly require a causative link between the defendant's actions and the resulting harm. . . . In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination."

To satisfy the federal definition of unfairness, the practice must cause or be likely to cause substantial injury, must not be outweighed by countervailing benefits, and the injury must be one that consumers themselves could not reasonably avoid. . . . The latter element was not supported by the plaintiffs' showing in this case.

In light of the Supreme Court's caution that businesses must be able to "know, to a reasonable certainty, what conduct California law

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prohibits and what it permits," we do not believe a UCL violation may be established without a link between a defendant's business practice and the alleged harm. . . .

. . . .

No evidence in this case hints that any of the manufacturer defendants provided weapons to criminals or failed to properly record sales or did any of the other acts that plaintiffs characterize as high-risk business practices. They did not control the wrongful acts or encourage others to engage in questionable acts. Neither did they change their business practices to avoid proposed regulations or advise retailers on ways to circumvent the law. The record in this case shows that the only business practice that these defendants engage in is the manufacture and sale of firearms to dealers that are licensed as such by the federal government. Plaintiffs have cited no cases finding a manufacturer has engaged in an unfair practice solely by legally selling a non-defective product based on actions taken by entities further along the chain of distribution. Even plaintiffs' experts could not present an evidentiary link between the manufacturer of a firearm and a retail gun dealer who sold guns that ended up in criminal circumstances.

It is important to emphasize that the evidence presented did not show that any defendant had actual knowledge that specific retailers were illegally supplying guns to the crime gun market or took any action to aid or encourage such activity. At best, defendants had access to inconclusive statistics concerning the actions of a minority of retailers. [The] data indicating a retailer sold numerous crime guns, without more, would not support a conclusion of wrongdoing. Plaintiffs' evidence raises only a suspicion regarding the acts of a small number of retailers that may justify additional investigation and fact finding. While that evidence may be sufficient to justify a trial of the retailers, it does not implicate any act by the manufacturers.

Furthermore, the crime gun trace data and expert declarations did not, without more specific evidence, establish wrongdoing on the part of a specific retailer such that viewing the data alone would justify imposition of sanctions for gun trafficking. . . . Where the evidence in this case did support the inference that some retailers engaged in high-risk sales, the trial court denied summary judgment as to those entities.

While plaintiffs' attempt to add another layer of oversight to a highly regulated industry may represent a desirable goal, the record in this case does not present sufficient evidence to impose unannounced and uncodified requirements on business enterprises based on an expert's opinion of what constitutes good public policy. . . .

The Trial Court Properly Rejected Plaintiffs' Nuisance Theory

Plaintiffs' complaints alleged that defendants' conduct constitutes a public nuisance because it results in supplying handguns to the criminal market that remain in the hands of criminals for years and causes death and injury to the public. Plaintiffs contend that the trial court ignored the public nuisance cause of action, which, if supported, could also establish a violation of [the UCL]. But the court did discuss the issue of public nuisance in its opinion and concluded

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that plaintiffs' evidence failed to show causation, a necessary element of a public nuisance claim.

A nuisance is: "anything that is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, [that] interfere[s] with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway . . . . [California statutory law divides] the types of nuisance into public and private. A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons.

Plaintiffs assert that the Restatement Second of Torts (Restatement)§ 821(b) provides that no showing of causation is necessary when only an injunction is sought. They contend that they need only show that defendants created a risk of some threatened harm. The Restatement is not so loosely worded. Section 821(b) subdivision (2) explains: "Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or (c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right." This listing of examples of public nuisance illustrates the need for a relationship between the conduct and the impending harm. Thus, a defendant's action must not only create a risk of some harm, it must also be likely to lead to invasion of the public right at issue.

The language of the Restatement presumes that the necessary elements for proof of a cause of action for public nuisance include the existence of a duty and causation. "The conduct necessary to make the actor liable for either a public or a private nuisance may consist of (a) an act; or (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the private interest." If a plaintiff could obtain an injunction absent a showing of causation of an interference with a public right, the plaintiff could enjoin the manufacturing of a firearm solely because the mere existence of the firearm creates a risk of harm. A connecting element to the prohibited harm must be shown.

Cases cited by plaintiffs as examples of public nuisance in other contexts are distinguishable because the acts of defendants in those cases were illegal or violated regulatory provisions and did more than create a risk of harm. The actions of the defendants in the cited cases were highly likely to cause imminent harm to the public. . . .

Although it is not necessary to show that harm actually occurred, plaintiffs must show that a defendants acts are likely to cause a significant invasion of a public right. . . .

. . . .

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In this case, there is no causal connection between any conduct of the defendants and any incident of illegal acquisition of firearms or criminal acts or accidental injury by a firearm. Defendants manufacture guns according to federal law and guidelines.

Plaintiffs list cases from other jurisdictions that have upheld public nuisance claims against gun manufacturers and distributors, arguing that the trial court erred by not following those cases. No California state case is cited that analyzes the issue. . . .

The out-of-state cases allowing a nuisance action to go forward are distinguishable. . . . In Ileto v. Glock, Inc., 349 F.3d 1191 (9th Cir. 2003) a Ninth Circuit panel majority reinstated claims of negligence and nuisance against gun manufacturers and distributors brought by individual victims and survivors of an assault by a gunman. It is significant that the court declined to reinstate the action against manufacturers and distributors whose guns were not actually fired during the shooting because the claims for nuisance and negligence could not stand without a showing that those guns caused the alleged injury. . . .

. . . Even if we were to accept the Ileto court's interpretation of what our Supreme Court may decide when faced with this issue, the conclusions in that case (aside from the need to show causation) are not applicable here, where there is no evidence of either of the contentions underlying the causes of action . . . .

We find the views expressed by the dissenters to the denial of rehearing en banc in Ileto instructive. Circuit Judge Callahan explained the potential reach of the Ileto decision allowing the nuisance claim against defendant Glock, Inc., to go forward. "The potential impact of the panel's decision is staggering: Any manufacturer of an arguably dangerous product that finds its way into California can be hauled into court in California to defend against a civil action brought by a victim of the criminal use of that product. The manufacturers’ liability will turn not on whether the product was defective, but whether its legal marketing and distribution system somehow promoted the use of its product by criminals and underage end users. Thus, General Motors could be sued by someone who was hit by a Corvette that had been stolen by a juvenile. The plaintiff would allege that General Motors knew that cars that can greatly exceed the legal speed limit are dangerous, and through advertising and by offering discounts, it increased the attractiveness of the car and the number of Corvettes on the road and thus increased the likelihood that a juvenile would steal a Corvette and operate it in a injurious manner. . . .

[As set out by a concurring opinion in Ileto]: “In effect, it is a form of regulation administered through the courts rather than the states regulatory agencies. It is, moreover, a peculiarly blunt and capricious method of regulation, depending as it does on the vicissitudes of the legal system, which make results highly unpredictable in probability and magnitude. Courts should therefore be chary of adopting broad new theories of liability, lest they undermine the democratic process through which the people normally decide whether, and to what degree, activities should be fostered or discouraged within the state. . . ."

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Plaintiffs public nuisance claim fails for lack of any evidence of causation. Their complaint attempts to reach too far back in the chain of distribution when it targets the manufacturer of a legal, non-defective product that lawfully distributes its product only to those buyers licensed by the federal government.

We do not hold that the theories asserted would never be tenable under different evidence. We merely find, based on the evidence presented here, that the evidence does not sufficiently establish the alleged acts of the defendants caused the diversion of firearms to the criminal market.

* * *

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2. Private Litigation

SMITH v. BRYCO ARMS131 N.M. 87, 33 P.3d 638 (2001)

Bustamante, Justice.

* * *

In this case we consider, under theories of strict products liability and negligence, the liability of the manufacturer and distributor of a .22 caliber handgun, referred to as the J-22, for the accidental shooting of an Albuquerque boy, 14-year-old Sean Smith (Sean), by his 15-year-old friend D.J. Valencia (D.J.). The trial court granted summary judgment to the gun manufacturer, Defendant Bryco Arms (Bryco), and to the gun distributor, Defendant Jennings Firearms, Inc. . . .

Plaintiff raises strict products liability and negligence theories of recovery against Bryco and Jennings. Both theories are predicated upon the fact that the J-22 handgun does not incorporate a "magazine-out safety," a "chamber load indicator," or a written warning on the gun itself alerting users that the J-22 can fire even though the magazine has been removed. The issues on appeal are (1) whether the court erred in ruling that, as a matter of law, Bryco and Jennings were not negligent because they had no duty to incorporate the safety features described above;(2) whether the trial court erred in ruling that, as a matter of law, the J-22 does not present an unreasonable risk of injury for purposes of strict product liability; and (3) whether Plaintiff came forward with evidence sufficient to raise a genuine issue of material fact that the failure to incorporate the above safety features was a proximate cause of Sean's injury. . . .

FACTUAL AND PROCEDURAL BACKGROUND

The shooting occurred on January 29, 1993, at Sean's house. No parents were home at the time. Sean, Michael Brummett (Michael) age 15, and Brian Romero (Brian) age 16, were at Sean's house. The three boys decided to go out to get some food. While they were out, Michael legally purchased the J-22 handgun and ammunition for $40 from an individual identified only as Bernard. The sale occurred in a parking lot in Albuquerque. While purchasing the gun, Michael examined the chamber and saw it was empty and asked to see the ammunition magazine. Michael inserted the magazine into the gun and purchased it. The three boys examined the gun in the car. When they got back to Sean's house, the boys again examined the gun. Michael put the gun and magazine clip in his jacket, brought it into the house, and took the gun with him into the bathroom. At some point, Sean also called D.J. to come over. Michael removed the magazine and kept it with him in the bathroom while the other boys passed the gun around in the living room. Sean, D.J., and Brian testified that they thought the gun was unloaded and would not fire with the magazine out. The boys testified that they did not realize that a bullet might remain in the chamber even though the magazine had

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been removed. When the gun was passed to D.J., he "stupidly" pulled the trigger and unintentionally shot Sean as Sean was talking on the telephone, hitting him in the mouth and seriously injuring him.

Sean and his parents, Patrick and Jeanne Smith (Plaintiffs), initially filed a complaint to recover damages for personal injury, alleging that the parents of D.J., Michael, and Brian were negligent for failing to supervise the boys properly. The complaint was then amended to name the three boys and their parents, alleging negligence of minors, negligence as a matter of law, vicarious parental liability, and parental negligence. The complaint was amended a second time to add Bryco, the manufacturer of the J-22, and Jennings, the distributor of the J-22. [The parents and the other boys settled out of court with plaintiffs.]

. . . .

[T]he trial court applied a restrictive definition of defect. In the trial court's view, a defect consisted of a flaw in the fabrication of the particular J-22 involved in this case. . . .

The trial court's unwillingness to consider possible design and warning defects sidestepped the true gravamen of the Plaintiffs' case: that the gun as designed was defective because it did not incorporate available and economically reasonable design features and warnings which would have prevented the shooting. . . . Apparently viewing the application of normal products liability and negligence concepts to handguns as a significant change in the law, the trial court deferred to our Supreme Court for action. . . .

. . . .

The trial court was perhaps concerned that applying our tort law to handguns could have the effect of infringing on the constitutional right to bear arms. N.M. Const. art. XI, § 6. We recognize that firearms are different than other products in the sense that they are the subject of a constitutional right. However, as the following discussion will demonstrate, we do not perceive anything so unique about handguns that they cannot or should not be subject to normal tort law concepts, norms, and methods of analysis. . . .

A. The Strict Products Liability Theory

. . . The purpose behind the strict products liability doctrine is to allow an injured user or consumer to recover against a supplier or manufacturer without the requirement of proving negligence. The policy underpinnings supporting imposition of strict liability on product manufacturers and suppliers include (1) ensuring that the risk of loss for injury resulting from defective products is borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business; (2) encouraging suppliers to select reputable and responsible manufacturers who generally design and construct safe products and who generally accept financial responsibility for injuries caused by their defective products; and (3) promoting fairness by ensuring that plaintiffs injured by an unreasonably dangerous product are compensated for their injuries.

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Under the strict products liability theory, a supplier of products is liable for harm proximately caused by an unreasonable risk of injury resulting from a condition of the product or from a manner of its use. This rule applies even though all possible care has been used by the supplier in putting the product on the market. . . .

Whether a product is unreasonably dangerous, and therefore defective, is ordinarily a question for the jury. New Mexico's "unreasonable-risk-of-injury" test allows for proof and argument under any rational theory of defect. The jury instructions covering strict products liability are designed to encourage a risk-benefit calculation by defining "unreasonable risk of injury" in a way which requires the jury to balance meritorious choices for safety made by the manufacturer while minimizing the risk that the public will be deprived needlessly of beneficial products. . . .

Plaintiffs allege that the J-22 handgun was in an unreasonably dangerous and defective condition because it (1) "[i]nadequately lacked a proper safety mechanism which would prevent the handgun from firing when the ammunition magazine was removed," (2) "was not designed so as to sufficiently warn foreseeable users when a round of ammunition has been loaded," and (3) lacked "a warning adequate to apprise all foreseeable users, especially minor users, of the fact that the handgun could fire a projectile even if the ammunition magazine were removed."

We perceive nothing new or unusual in these theories of defect. . . .

B. The Negligence Theory

In support of their negligence claims, Plaintiffs allege that Defendants had a duty to Plaintiffs (1) "to use reasonable care in the design, manufacture and [marketing] of the J-22 handgun to ensure that it would be reasonably safe for its foreseeable uses" and (2) to warn Plaintiffs "of all inherent dangers to the J-22 handgun including the fact the weapon could fire a projectile even if the ammunition magazine was removed." Plaintiffs further allege that Defendants failed to fulfill this duty because they did not design the J-22 with a magazine-out safety, or a chamber load indicator, or a printed warning on the J-22.

It is well-established in New Mexico negligence law that manufacturers and distributors of products have a duty to use ordinary care in producing products so as to avoid a foreseeable risk of injury caused by a condition of the product or manner in which it is used. . . . These are bedrock propositions of New Mexico products liability and negligence law. It can thus be stated without risk of contradiction that the duty of a product supplier to use ordinary care to avoid foreseeable risks of injury caused by a condition of the product or manner in which it is used exists as a matter of law. . . .

Stated positively, the general duty imposed on manufacturers and suppliers of products to use ordinary care includes a duty to consider risks of injury created by foreseeable misuse of the product. . . .

Defendants argue that they had no duty of care to Sean because they had no "special relationship" with him. Defendants base this

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contention on the theory that the injury was caused by D.J.'s criminal act in pointing and firing the handgun at Sean. Because the trigger was pulled by a third party, Defendants contend, they cannot be held liable unless it can be found that they had a special relationship with Sean which imposed a duty to control the conduct of the third person. . . .

The basic inquiry in all of these cases is whether the defendant has the ability to exercise control over a premise or an activity such that it is reasonable to impose a duty of ordinary care on it as to the management of the premises or activities. At times a duty is found based on the existence of a "special relationship" between plaintiff and defendant. A special relationship can arise as part of a commercial connection between parties, or it can be more or less voluntarily undertaken. . . .

These difficulties are not present in a products liability context. The basic policy decision has been made that the duty of a product distributor extends to persons who can be foreseeably injured by a defective product -- including injuries caused by foreseeable misuse of the product if the defect proximately contributes to the injury. Thus, contrary to Defendants' contentions, a "special relationship" between manufacturer/distributor and user is not required to establish a product supplier's duty to make or distribute safe products.

Further, the presence or absence of a special relationship between Defendants and Sean is immaterial because Plaintiffs are clearly not attempting to hold Defendants responsible for failing to control D.J. Plaintiffs are attempting to hold Defendants liable in negligence or strict liability for harm proximately caused by Defendants' affirmative acts of designing and distributing a defective product which combined with D.J.'s subsequent misconduct to injure Sean. . . . It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury.". . .

Once it has been determined that a duty exists, the limits on that duty under a specific set of facts are ordinarily questions for the jury. . . .

C. Material Issues of Fact Were Raised by Plaintiffs in Response to Defendants' Motions for Summary Judgment.

[On a motion for summary judgment, once the moving party makes a] prima facie showing, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits." Defendants contend that as a matter of law, the J-22 was not a defectively designed product and Defendants were not negligent in the manufacture and design of it. Defendants contend they are entitled summary judgment as to the design and warning defects issues because the J-22 has the following safety features which they argue are sufficient as a matter of law: (1) the J-22 Operator's Parts and Instructions Sheet, which accompanies the newly manufactured gun in its display box, explains all safety concerns, including the safe loading and unloading of the gun; and (2) the word "Fire" is visible when the handgun is in a firing position, and there is a manual safety, which when applied makes the word "Safe" visible and keeps the gun from firing.

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Defendants also assert the J-22 handgun was not defectively manufactured because it operated as intended when D.J. intentionally pulled the trigger while pointing it at Sean, even if he did not intend to injure him. Bryco and Jennings representatives testified that had the boys put the existing safety on and not pointed the gun at anyone, as they had been taught by their parents and guardians not to do, the shooting could not have occurred. Defendants also contend they are entitled to summary judgment because the safety devices and warnings Plaintiffs advocate are not feasible for the J-22, and that, in general, there are pros and cons to the desirability . . . of magazine safeties.

Defendants also contend they are entitled to summary judgment because as a matter of law, Bryco and Jennings had no duty to protect these minors against their intentional, reckless, and criminal use of the product. The President of Jennings, Janice Jennings, testified that in her opinion, the boys' reckless conduct made the accident inevitable. The boys' actions were so reckless, willful, and criminal, Defendants contend, that as a matter of law, this misuse of the gun could not reasonably be foreseen by Bryco and Jennings. Finally, Defendants argue that the boys' actions interrupt the chain of proximate causation. Defendants point to the boys' depositions where they each admitted their actions were "stupid." In addition, the boys admitted that they acted contrary to what they had been taught by their parents or guardians about not handling guns, not pointing them at anyone, and assuming a gun is loaded at all times. The boys admitted that they initially lied to the police about how they got the gun and how the shooting occurred. They also admitted to initially hiding the gun from their parents and the police.

To counter Defendants' criminal and per se negligence theories, Plaintiffs provided evidence that the boys purchased the gun legally at the time. . . . To counter Defendants' assertions that the gun is sufficiently safe, Plaintiffs provided evidence that when purchased, there was no Parts and Instruction Sheet that came with the gun, and that this was a common occurrence in gun sales. In addition, Plaintiffs provided evidence that without the instruction sheet and in the absence of a magazine-out safety, chamber load indicator, or suitable warning (e.g., "check the chamber for a bullet at all times"), that loading and unloading the gun is confusing depending on whether the chamber is checked while the magazine is in or out. If the chamber is viewed while the magazine is in the gun, the chamber will appear empty, but a bullet will then be loaded into the chamber. Removing the magazine, therefore, does not necessarily unload the gun.

While D.J. testified that he "stupidly" pulled the trigger, each of the boys testified that he thought the gun was unloaded because the magazine was out. There was some evidence that Sean or Brian actually, though inadvertently, may have loaded the gun while the magazine was in the gun and before returning it to Michael who thought that, by removing the magazine and keeping it with him while the other boys examined the gun in another room after D.J. showed up, he had made it safe. Michael testified that the chamber was empty when he examined the gun while purchasing it. Then, when Michael removed the magazine and kept it with him in the bathroom while the other boys examined it in another room, Michael testified that he thought the gun was safe and unloaded.

In response to Defendants' contentions that the J-22 had

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sufficient safety devices and warnings as designed, Plaintiffs provided evidence that patents for magazine-out safeties have been filed in 1912, 1914, 1916, 1921, 1922, 1927, 1945, 1949, 1951, 1977, 1980, 1981, 1984, and 1986. These patent applications specifically articulate the known danger that people will remove the gun magazine and think they have unloaded the gun and then fire it, unintentionally injuring someone. The United States Patent Office granted the first patent for a magazine-out safety device on April 30, 1912. The Patent Abstract for this patent, No. 1,024,932, describes a device with the purpose and effect of preventing accidents such as the one in which Sean was injured:

A number of accidents occur in connection with automatic fire arms owing to the fact that if the fire arm is loaded and the magazine withdrawn, persons little acquainted with the operation of these fire arms often believe it to be unloaded while in reality a cartridge remains in the barrel. The present invention has for its object to obviate such accidents by providing means for setting the weapon automatically at a position of safety immediately the magazine is withdrawn.

In response to Defendants' contentions that the boys' misuse of the gun was unforeseeable or interrupted proximate causation, Plaintiffs provided government studies that show that the kind of unintentional shooting that occurred in this case is relatively common and might have been prevented if the person handling the gun had known it was loaded. For example, a nationally published study by the United States General Accounting Office reported in 1991 that 23% of unintentional shootings in America might have been prevented if the person handling the gun had known it was loaded. Another study showed that in New Mexico, 25 children aged 0-14 years old were killed in unintentional shootings between 1984 and 1988. During depositions, Defendants admitted they could foresee that children and teenagers would be able to access the J-22, and could be injured from handling a gun they believed to be unloaded. Plaintiffs' evidence would permit a reasonable jury to find that at the time the J-22 handgun was manufactured, Defendants were on notice, knew, or should have known of the risks posed by bullets in the chamber through the numerous patents filed about this issue, existing designs by other gun manufacturers, and through lawsuits against gun manufacturers and distributors.

Documents and advertisement flyers showed that recent handguns manufactured and distributed by Defendants have incorporated a magazine-out safety that blocks the trigger bar and disables the handgun so that it cannot fire when the magazine is removed, and a chamber load indicator device to guard against the risks posed by a bullet hidden in the chamber. Plaintiffs quoted Defendants' testimony that, notwithstanding, Defendants did not consider additional safety devices for the J-22; that no product analyses were conducted on the J-22; that no one reviews Bryco products to see if they can be made safer; and that Bryco did not investigate what other manufacturers were doing to make their firearms safer.

Defendants admitted that had a magazine-out safety been in the J-22 at the time D.J. fired, the gun would not have fired and Sean would not have been shot.

This is not a case where the use to which the product was put is

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so unforeseeable as a matter of law that the case should be taken from the jury under either a strict products liability or negligence theory. . . .

In addition, Plaintiffs' feasibility evidence conflicted with Defendants' contentions on that point. Plaintiffs provided evidence indicating that installing the safety devices and warnings were both feasible and inexpensive. The cost of the magazine out safety parts is about 22 cents and the cost of the chamber load indicator parts about 8 cents, adding about 30 cents to the manufacturing price of the J-22. Finally, Plaintiffs presented the affidavits of three experts on the issues of feasibility, foreseeability, and causation. Vaughn P. Adams, Jr., Ph.D., P.E., is a registered industrial and safety engineer who has qualified as an expert in numerous cases and has testified on safety devices and firearms. In his opinion, Bryco and Jennings failed to provide reasonable safeguarding means which were available and widely known at the time the J-22 handgun was designed, manufactured, and distributed, to control the recognized hazard of unintentional discharge of their handgun under foreseeable conditions, including the occurrence of a cartridge unknowingly remaining in the chamber when the magazine was removed. He also opined that it was foreseeable that severe injury and death will be caused when individuals handle a loaded handgun which they believe is unloaded. David P. Sklar, M.D., Chairman of the Department of Emergency Medicine, Professor of Internal Medicine, and Medical Director of the Center for Injury Prevention, Research, and Education at the University of New Mexico School of Medicine, also opined about the foreseeability of accidental shootings like the one that injured Sean. Robert L. Hillberg, a firearms manufacturer and designer, opined about the feasibility of installing additional safeties and warnings on the J-22.

CONCLUSION

. . . In this case, we are applying existing principles of products liability under New Mexico law to another type of product supplier: the manufacturer and distributor of the J-22 handgun. We are not changing the law.

Plaintiffs' claims pose the question whether the gun could function as intended and yet be made safer. Plaintiffs contend that the J-22 is defective because it did not incorporate safety devices and warnings designed to prevent foreseeable unintentional shooting accidents, a claim well within existing New Mexico products liability and negligence law. We note that the open and obvious danger rule has been abolished in New Mexico and a risk is not made reasonable simply because it is made open and obvious to persons exercising ordinary care. . . .

Whether the type of misuse evident in this case was foreseeable, whether the existing features of the J-22 are sufficiently safe, and whether it was feasible without impairing the utility of the gun or being unduly expensive for Bryco and Jennings to incorporate the advocated safety devices and/or warnings into the design of the J-22, are all issues for the jury to decide. To determine whether Bryco and Jennings are strictly liable for Sean's injuries, the jury will assess whether the product as designed posed an unreasonable risk of injury to these minors. To determine whether Bryco and Jennings are liable under a

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negligence theory, the jury will assess whether they were negligent in adopting the particular design of the J-22.

Because there remain material issues of fact for resolution by the jury, Defendants are not entitled to judgment as a matter of law.

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PROTECTION OF LAWFUL COMMERCE IN ARMS ACT Pub. L. No. 109-92 (2005)

FINDINGS; PURPOSES.

(a) FINDINGS. Congress finds the following:

(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.

(4) The manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act, and the Arms Export Control Act.

(5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a

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citizen of the United States under the Fourteenth Amendment to the United States Constitution.

(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.

(b) PURPOSES. The purposes of this Act are as follows:

(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.

(2) To preserve a citizen's access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.

(3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.

(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.

(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.

(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.

(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.

PROHIBITION ON BRINGING OF QUALIFIED CIVIL LIABILITY ACTIONS IN FEDERAL OR STATE COURT.

(a) IN GENERAL. A qualified civil liability action may not be brought in any Federal or State court.

(b) DISMISSAL OF PENDING ACTIONS. A qualified civil liability action that is pending on the date of enactment of this Act shall be immediately dismissed by the court in which the action was brought or is currently pending.

DEFINITIONS.

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In this Act:

(1) ENGAGED IN THE BUSINESS. The term "engaged in the business" has the meaning . . . as applied to a seller of ammunition, means a person who devotes time, attention, and labor to the sale of ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of ammunition.

(2) MANUFACTURER. The term "manufacturer" means, with respect to a qualified product, a person who is engaged in the business of manufacturing the product in interstate or foreign commerce and who is licensed to engage in business as such a manufacturer . . . .

(3) PERSON. The term "person" means any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, including any governmental entity.

(4) QUALIFIED PRODUCT. The term "qualified product" means a firearm . . . , including any antique firearm . . . , or ammunition (as defined in section 921(a)(17)(A) of such title), or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce.

(5) QUALIFIED CIVIL LIABILITY ACTION.

(A) IN GENERAL. The term "qualified civil liability action" means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include --

(i) an action brought against a transferor convicted under (the federal law requiring the licensing of gun dealers), or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including --

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted,

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or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under (federal law).

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce (federal laws relating to licensing of gun dealers or other related federal laws).

(B) NEGLIGENT ENTRUSTMENT. As used in subparagraph (A)(ii), the term "negligent entrustment" means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

(C) RULE OF CONSTRUCTION. The exceptions enumerated under clauses (i) through (v) of subparagraph (A) shall be construed so as not to be in conflict, and no provision of this Act shall be construed to create a public or private cause of action or remedy.

(D) MINOR CHILD EXCEPTION. Nothing in this Act shall be construed to limit the right of a person under 17 years of age to recover damages authorized under Federal or State law in a civil action that meets one of the requirements under clauses (i) through (v) of subparagraph (A).

. . . .

(9) UNLAWFUL MISUSE.--The term "unlawful misuse" means conduct that violates a statute, ordinance, or regulation as it relates to the use of a qualified product.

CHILD SAFETY LOCKS.

(a) SHORT TITLE. This section may be cited as the "Child Safety Lock Act of 2005".

(b) PURPOSES. The purposes of this section are --

(1) to promote the safe storage and use of handguns by consumers;

(2) to prevent unauthorized persons from gaining access to or use of a handgun, including children who may not be in possession of a handgun; and

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(3) to avoid hindering industry from supplying firearms to law abiding citizens for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.

(c) FIREARMS SAFETY. (1) MANDATORY TRANSFER OF SECURE GUN STORAGE OR SAFETY DEVICE. Section 922 of title 18, United States Code, is amended by inserting at the end the following:

"(z) SECURE GUN STORAGE OR SAFETY DEVICE.

"(1) IN GENERAL. Except as provided under paragraph (2), it shall be unlawful for any licensed importer, licensed manufacturer, or licensed dealer to sell, deliver, or transfer any handgun to any person other than any person licensed under this chapter, unless the transferee is provided with a secure gun storage or safety device . . . for that handgun.

"(2) EXCEPTIONS. Paragraph (1) shall not apply to

"(A)(i) the manufacture for, transfer to, or possession by, the United States, a department or agency of the United States, a State, or a department, agency, or political subdivision of a State, of a handgun; or

"(ii) the transfer to, or possession by, a law enforcement officer employed by an entity referred to in clause (i) of a handgun for law enforcement purposes (whether on or off duty); or

"(B) the transfer to, or possession by, a rail police officer employed by a rail carrier and certified or commissioned as a police officer under the laws of a State of a handgun for purposes of law enforcement (whether on or off duty);

"(C) the transfer to any person of a handgun listed as a curio or relic . . . ; or

"(D) the transfer to any person of a handgun for which a secure gun storage or safety device is temporarily unavailable . . . .

"(3) LIABILITY FOR USE.

"(A) IN GENERAL. Notwithstanding any other provision of law, a person who has lawful possession and control of a handgun, and who uses a secure gun storage or safety device with the handgun, shall be entitled to immunity from a qualified civil liability action.

"(B) PROSPECTIVE ACTIONS. A qualified civil liability action may not be brought in any Federal or State court.

"(C) DEFINED TERM. As used in this paragraph, the term 'qualified civil liability action'

"(i) means a civil action brought by any person against a person described in subparagraph (A) for damages resulting from the criminal or unlawful misuse of the handgun by a third party, if

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"(I) the handgun was accessed by another person who did not have the permission or authorization of the person having lawful possession and control of the handgun to have access to it; and

"(II) at the time access was gained by the person not so authorized, the handgun had been made inoperable by use of a secure gun storage or safety device; and

"(ii) shall not include an action brought against the person having lawful possession and control of the handgun for negligent entrustment or negligence per se.".

(2) CIVIL PENALTIES.--Section 924 of title 18, United States Code, is amended

. . . . (B) by adding at the end the following:

"(p) PENALTIES RELATING TO SECURE GUN STORAGE OR SAFETY DEVICE.--

"(1) IN GENERAL.--

"(A) SUSPENSION OR REVOCATION OF LICENSE; CIVIL PENALTIES. With respect to each violation of section 922(z)(1) by a licensed manufacturer, licensed importer, or licensed dealer, the Secretary may, after notice and opportunity for hearing

"(i) suspend for not more than 6 months, or revoke, the license issued to the licensee under this chapter that was used to conduct the firearms transfer . . . .

. . . .

ARMOR PIERCING AMMUNITION.

(a) UNLAWFUL ACTS. Section 922(a) of title 18, United States Code, is amended by striking paragraphs (7) and (8) and inserting the following:

"(7) for any person to manufacture or import armor piercing ammunition, unless

"(A) the manufacture of such ammunition is for the use of the United States, any department or agency of the United States, any State, or any department, agency, or political subdivision of a State;

"(B) the manufacture of such ammunition is for the purpose of exportation; or

"(C) the manufacture or importation of such ammunition is for the purpose of testing or experimentation and has been authorized by the Attorney General;

"(8) for any manufacturer or importer to sell or deliver armor piercing ammunition, unless such sale or delivery

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"(A) is for the use of the United States, any department or agency of the United States, any State, or any department, agency, or political subdivision of a State;

"(B) is for the purpose of exportation; or

"(C) is for the purpose of testing or experimentation and has been authorized by the Attorney General;" (b) PENALTIES. Section 924(c) of title 18, United States Code, is amended by adding at the end the following:

"(5) Except to the extent that a greater minimum sentence is otherwise provided under this subsection, or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries armor piercing ammunition, or who, in furtherance of any such crime, possesses armor piercing ammunition, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime or conviction under this section

"(A) be sentenced to a term of imprisonment of not less than 15 years; and

"(B) if death results from the use of such ammunition

"(i) if the killing is murder, be punished by death or sentenced to a term of imprisonment for any term of years or for life; and

"(ii) if the killing is manslaughter, be punished as provided in section 1112.".

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Notes and Questions

1. Apart from efforts by state and local governments to enact gun control legislation, some city and local governments have attempted to achieve some of the same objectives of gun control legislation through litigation claiming, among other things, that gun manufacturers and distributors are negligent in allowing the distribution of potentially dangerous products or liable for the inherent dangers of their products, or that gun manufacturers and distributors are creating a public nuisance. None of these government-sponsored lawsuits have been fully successful and most have been rejected or withdrawn. In that regard, the limited legal success (despite the ultimate political failure, as explained infra) of the city in City of Cincinnati v. Beretta U.S.A. Corp. is atypical, although the city’s claims and arguments are fairly typical of the claims that have been pursued in various jurisdictions. The city focused most of its arguments on claims that this particular gun manufacturer had declined to incorporate safety devices into its guns, misled the public about the advantages of having a gun in the home, and engaged in distributional practices that fostered a large, illegitimate “secondary” market for guns. The majority and dissenting opinions reflect the opposing judicial responses to such arguments. Ultimately, a majority of the Ohio Supreme Court, unlike most other courts, allowed the city to proceed to trial. During the discovery process, however, political support for the lawsuit waned and the Cincinnati city council voted to drop the lawsuit.

For a similar lawsuit (and one that was still proceeding to trial as of 2005), see City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003). For lawsuits with different results, see City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 821 N.E.2d 1099 (2004)(upholding trial court’s granting of a motion to dismiss); see also City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002). For updates and references to additional lawsuits, see http://www.gunlawsuits.org/docket (last visited April 2005).

In an interesting and politically informative side-skirmish to the Chicago lawsuit, the city sought trace data (data identifying guns that had been identified as part of a criminal investigation) from the ATF. The ATF refused the city’s request and the city sued the federal government agency under the Freedom of Information Act. In City of Chicago v. Department of Treasury, 384 F.3d 429 (7th Cir. 2004), the court ordered the ATF to release the data to the city. Congress, however, intervened, and amended the ATF appropriations bill to prohibit the expenditure of any funds to comply with the Seventh Circuit’s order.

From a public health policy point of view, does it make sense for cities and other local governments to pursue gun control through this type of litigation? Are these efforts to sidestep the political process? Would it make a difference if the plaintiff-governmental body were precluded from seeking gun control legislation by state preemption legislation? For that matter, what do you think the plaintiffs are trying to achieve: recovery of actual damages? limits on the distribution of guns? Would you feel differently if, in fact, these lawsuits were being orchestrated by a larger, nationwide “anti-gun

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conspiracy” and intended to force gun manufacturers or distributors out of business or into bankruptcy?

2. Lawsuits such as Bryco, brought by private individuals against gun manufacturers and gun sellers, have had somewhat more success -- particularly where the factual claims focus on a particular incident or the dangers of a particular weapon, as in the Bryco case. In this regard, Bryco should be viewed as a rather narrow holding, tied to its specific facts, and not necessarily as a case that opens the door to many other lawsuits against many other defendants. (In fact, the defendant in Bryco has become notorious both for his often-malfunctioning products and his efforts to avoid liability; for a recounting of this story, see http://www.brandonsarms.com/ (last visited April 2005).

Nonetheless other plaintiffs have been successful. For example, the Ninth Circuit allowed that the surviving families of victims of a mass homicide could sue the distributors and manufacturers of the guns that were used in the incident for negligence and public nuisance, if the plaintiffs could show that the defendants knew they were over-saturating the market and creating an illegal secondary market for their products. Ileto v. Glock, Inc., 349 F.3d 1191 (9th Cir. 2003). For decisions dismissing claims by victims of gun violence, see Hamilton v. Beretta U.S.A. Corp., 264 F.3d 36 (2d Cir. 2000)(holding that New York state law does not allow survivors of a mass homicide to sue gun manufacturer or seller); Merrill v. Navegar, 26 Cal. 4th 465, 110 Cal. Rptr. 370, 28 P.3d 116 (2001)(under California state law, gun manufacturers and sellers are immune from liability).

In a case following the much-publicized “D.C. sniper” homicides in 2002, the families of the victims of John Mohammad and Lee Malvo sued the maker of the Bushmaster assault rifle used in the shootings and the gun shop which allowed Mohammad to obtain the rifle (in violation of various state and federal laws). The Washington state courts refused to dismiss the case and a trial was set for the Spring of 2005. In the Fall of 2004, a settlement was reached in which the gun manufacturer agreed to pay $2 million and to change some of their distributional practices; the gun shop agreed to pay $1 million to the victims. A number of other lawsuits against gun manufacturers also have been settled out-of-court.

3. Some of these government and privately initiated lawsuits have been barred by state laws that provide gun manufacturers or sellers with immunity from these types of lawsuits -- immunity that was created by recent legislation clearly intended to short circuit precisely such lawsuits.

At the federal level, in October of 2005 President Bush signed into law the Protection of Lawful Commerce in Arms Act, Pub. L. No. 109-92. The new federal legislation preempts any cause of action in state or federal court against manufacturers, distributors, dealers, or importers of firearms “resulting from the criminal or unlawful use of a qualified product by a person or a third party,” subject to enumerated exceptions. A “qualified product” includes firearms, their parts, or ammunition” -- essentially eliminating many of the pre-existing state common law and statutory remedies available to both governmental and private plaintiffs

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(with some notable exceptions). The federal law also amended the pre-existing federal gun dealer licensing law to require that new handguns be sold subject to certain “child safety” requirements; compliance with these requirements also triggers immunity from related state and federal lawsuits.

What types of lawsuits against which defendants are still viable? Obviously the new federal law limits many “upstream” lawsuits -- i.e., importers, manufacturers, dealers, and even sellers have been immunized from most lawsuits resulting from harm caused by gun owners or possessors long after they have passed through the stream of commerce, with rather limited and rather specific exceptions. Does this make sense (a) as a matter of law or (b) as a matter of public policy? Is the lawsuit’s objective of imposing liability a limitation on commerce in guns per se? Or is it to insure that guns only fall into the hands of lawful consumers? Are we concerned that guns will be used, either illegally or accidentally, in a way that we want to avoid, or that guns are inherently dangerous even in the hands of lawful purchasers? Importers, manufacturers, dealers, and sellers are clearly links in the chain of events that lead to various bad outcomes, ranging from homicides to accidental injuries. Are they in the best position to break that chain of causation? Or are they being blamed for something that is really caused -- in the legal sense of the term -- by other actors?

Viewing the federal law somewhat more broadly, does the extension of immunity incorporated into this law reflect policy judgments about the appropriate locus for liability, or was it a more crassly political decision? In this regard, the extensive statements of purposes and findings at the beginning of the statute are instructive. Congress has made some clear policy judgments about the importance of commerce in guns, the legitimacy of judicial determinations of liability, and even the proper interpretation of the Second Amendment.

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