The Federalist Society

Firearms Litigation, Tort Liability, and the Second Amendment - A Symposium

Civil Rights Practice Group Newsletter - Volume 3, Issue 3, Winter 2000

February 1, 2000

Donald B. Stenberg, Carl T. Bogus, John Coale, Nelson Lund, Victor E. Schwartz

Editor's Note: At the 1999 National Lawyers Convention in Washington, D.C., the Civil Rights Practice Group assembled a panel of distinguished lawyers to discuss "Firearms Litigation, Tort Liability, and the Second Amendment." The panel was moderated by the Honorable Don Stenberg, Attorney General of Nebraska. Participating in the discussion were Professor Carl Bogus of the Roger Williams University School of Law; Mr. John Coale, of the Castano Group, a leading plaintiffs'-side tort lawyer; Professor Nelson Lund of the George Mason Law School; and Mr. Victor Schwartz of the Washington, D.C. law firm Crowell & Moring, and General Counsel of the American Tort Reform Association. Following are excerpts of the panelists' opening statements.


MR. STENBERG: Before I introduce the panel, I just want to reflect very briefly on the tobacco litigation, because I think that sets the backdrop for the gun litigation, lead paint litigation, probable alcohol litigation, and perhaps other litigation in the future.

Not all the State Attorneys General necessarily have the same view of the tobacco litigation. Bill Pryor and I had one view that differed from many of our colleagues. It seems to me that the tobacco litigation didn't really change the tort laws, in part, because none of those cases was ever litigated to conclusion. There were some interim rulings, including some from State Supreme Courts. Many of those went in favor of the tobacco companies on issues of assumption of risk and other traditional tort doctrines, proximate cause, and so forth. It seemed to me rather what the tobacco litigation reflected was the power of State Attorneys General, who had the ability on behalf of their states to at least make claims for millions, if not billions of dollars in alleged damages, and the tremendous pressure that this put on the defendants to come up with a settlement.

Even if the tobacco companies had won under state tort doctrine in, say 30 or 35 states, the possibility always existed that litigation in just one or two states could lead to a catastrophic (from their standpoint) judgment that literally would have bankrupted the companies. What this did was place in the hands of the negotiating Attorneys General (of whom I was not one) the ability to impose significant changes in social policy, restrictions on advertising that would have been unconstitutional had they been enacted by a state legislator. Billions of dollars — totaling around $200 billion — of state revenues that would likely not have been imposed as taxes, at least in most states, are involved.

That may speak more to the future of State Attorneys General in that I think we will see efforts by our some of our state legislatures to restrict the powers of State Attorneys General in some of these areas in the future.

DR. BOGUS: I am going to address two questions. One question is, "Who should make gun policy, courts or legislatures?" The other question is, "Is it consistent with the deeply held societal value of personal responsibility to hold the gun manufacturer rather than the criminal responsible for a shooting?"

I am going to discuss them both at once, in kind of an unusual way. It will take me a little while to get to guns, so bear with me. Let's start with this proposition: People who benefit from an enterprise, a product, an activity, should pay the cost of that activity, that enterprise or that product, and they should not be subsidized by others. They shouldn't foist the costs off on someone else.

Picture a factory that makes widgets, and the factory is located on a river. In the course of producing widgets, the factory uses a lot of water in the production process. It draws the water in from the river, discharges the water after it uses it, and the discharged water is polluted. Downstream from this factory, the river is dead. The fish are dead; you can't drink this water; you can't swim in this water; you can't boat in this water.

Law and economics types would say that this factory has externalized one of the costs of making widgets on everybody who lives downstream. Those who live downstream, not the factory owners, are paying one of the costs. The costs of this water pollution is one of the costs of producing widgets, just like the costs of labor or electricity, or any other cost in the production process, and it should not be foisted off on the people downstream who are either going to have to pay these costs by building by water purification plant and purifying the river, or by losing the river as a resource.

Now, a little bit of bad news. All of us, I think it is fair to say, have asbestos fibers in our lungs. Asbestos was prevalent in all kinds of things from hair dryers to brake linings, and insulated all kinds of buildings. In any urban area, when they knock down a building, if they don't do it the way they are supposed to do it, (and they don't always do it the way they are supposed to do it!), asbestos is released in the air. Doctors will tell us that the mesophylioma, the horribly, always fatal form of lung cancer caused by asbestos, is not doserelated, that is, it just takes a fiber or two. Luckily it is a rare, rare disease, but it is a terrible disease.

One of the costs of asbestos production and use in America is asbestos-related disease, and this disease has been externalized to those of us who did not decide to buy asbestos. We didn't make a choice to buy asbestos. In the first case, cost is being externalized. In the second case, risk is being externalized.

This brings me to guns. Now, I am going to use term "guns" as a shorthand, but when I am talking about guns, I am just talking about two types of guns, handguns and large capacity magazines. I am not talking about a hunting rifle that holds five rounds. (It was Barry Goldwater who said if you need more than one round to go deer hunting, take up another sport.)

I suggest the widespread distribution of handguns and large capacity magazines in American society leads to risk externalization in the same way that asbestos leads to risk externalization. You can't have guns widely dispersed throughout American society, prevalent in half the homes in America, and not have them too often fall into the hands of psychotics and troubled teenagers, and also good citizens who "lose it" in a suicidal moment, a lovers' quarrel, or road rage. We had a Connecticut sheriff driving in Rhode Island recently. Someone passed him or cut him off, and he lost it and he shot at this motorist six times. Now I am not suggesting that liability ought to be imposed on manufacturers who sell guns to law enforcement officers. All I am suggesting is that there is risk that comes with widespread, promiscuous distribution of guns throughout society.

Now, you say, "It isn't guns that kill people; it is people who kill people. It is the guy who pulls the trigger." Of course, when someone gets shot, it is the gun and the person who pulled the trigger. When I asked in the beginning of this session whether "it is consistent with the deeply held societal value of personal responsibility to impose liability on the manufacturer rather than the criminal?," that was a trick way of putting the question; because in terms of personal responsibility, it is not an either/or proposition. The criminal, someone who misuses a gun or commits a criminal act with a gun is, of course, liable criminally and civilly. The question is whether there is responsibility or, for public policy reasons, liability for the manufacturer. It is a separate issue, and has nothing to do with denying liability or responsibility for the criminal.

Let's take dramshop litigation. A person comes into a tavern and drinks himself silly. The innkeeper knows the drunk person is going to drive away, because you can't get anywhere from this tavern except by driving. The innkeeper sells the drunk person liquor knowing he is going to drive away. That individual then goes and kills people on the road going home. There is nothing novel _ is there? _ in suing both the drunk driver and the innkeeper. In fact, dramshop litigation has been one of the tools in the war against drunk driving, and a very effective tool.

So, who makes gun policy — courts or legislatures? This is another trick question. The answer is that, in their own spheres and in their own realms, they both do. It was common law litigation, products liability litigation, that drove asbestos off the market. It was not Congress or the state legislatures that banned asbestos. Asbestos was only banned after the tort system removed it from the marketplace.

There is nothing novel in this. The common law has been doing things like this for hundreds of years. Let me just quote you the comments of two judges. First, Richard Posner: "By making the actor strictly liable, by denying him, in other words, an excuse based on his inability to avoid accidents by being more careful, we give him an incentive, missing a negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but, instead, relocating, changing, or reducing perhaps to the vanishing point the activity giving rise to the accident." Next, Judge Friendly: "A deeply rooted sentiment is that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities."

I suggest to you that one of the things that is inherent in making guns, selling guns, or buying guns, is a significant risk to public safety. (Again, by "guns" I mean handguns and large capacity magazines.) There are in the United States 8,000 murders, 30,000 suicides, a quarter of a million muggings at handgun-point each year. It is time for those involved in the commerce of guns to be held accountable in courts of law for the consequences of their actions.

A brief comment on the idea that this approach represents a "slippery slope" — that is, that we are going to be on a slippery slope and that courts are next going to be banning hamburgers, ice cream with high fat content, bourbon, etc. Bear this in mind: The common law system is a system of democracy — of disciplined democracy — and liability is not imposed on anybody unless a jury imposes it upon them. John Coale here, or any plaintiffs lawyer who knows anything about juries, is simply not going to be suing McDonald's for high fat hamburgers or Baskin & Robbins for high fat ice cream, and since Prohibition, Jack Daniels. If they do, they will get nowhere. So the slippery slope argument, I suggest, just doesn't make it.

MR. COALE: What I want to do is take you through our strategy. I am going to give you an honest assessment of what we ("we" being the lawyers who have attacked the tobacco industry, and who are now attacking the gun industry) are attempting to accomplish. My group represents five cities in coordination with the other 25 to 30 cities suing the gun industry and is working with several state Attorneys General.

Now, I would preface my remarks with the observation that the other side does the same thing, they just don't admit it. We take these cases, such as tobacco-back in 1994, and then put together a threepronged attack, legal, media, and political. We attacked on these three fronts for five years until they folded and settled. Whether we would have won the cases in court, we will never know, but the bottom line is that we won the war.

We vilified the industry in the media, which wasn't hard to do. We leaked damning documents. We worked with our political friends against the tobacco industry in Congress and elsewhere. And then we went into court and we used this three-prong attack against the tobacco industry very effectively. I am sure very few in the audience agree with this strategy, but tobacco was an issue we wanted to win, and we did.

We are doing virtually the same thing with the gun industry. We don't have to vilify the gun industry — that is done by others — but we do work with our friends on Capitol Hill and other legislators and other executives to try to coordinate our efforts with them, to try to implement change. People in my group believe that guns can be made safer, and it is not just litigation or legislation, it is both. And we help the legislators; sometimes they help us. In Maryland, they helped Peter Angelos to the tune of changing the law retroactively so we could win his tobacco suit. That may be a bit much.

This is nothing new. Litigation brought safe cars and then safe car legislation. Litigation brought many civil rights in the 1940's and 1950's and 1960's, and then we had legislation, the 1964 Civil Rights Law.

We are not using any new laws; it is just the magnitude of the lawsuits. The laws are the same laws that have been around for decades. Products liability law says that you can't produce a defective design without regard to whether it malfunctions. The failure of gun manufacturers to install safety devices to prevent gun accidents makes guns unreasonably dangerous even if they do shoot bullets correctly. This is what we are claiming in our lawsuits. We are assailing the blindness at the warehouse door that the industry claims when a gun leaves its manufacturing plants: that they have no further responsibility. Well, that is not true. It is not true in the chemical industry; it is not true in a lot of industries. Smith & Wesson, a couple of weeks ago, saw this and is now putting some restraints on its dealers.

But I wanted to tell you about our strategy. Quite honestly, we look at these cases as wars. And the other side may not like that, but that is the way we look at it, and we go and we do everything within the law, and within ethics, to win them. And nowadays that includes using the media, politics and litigation.

MR. SCHWARTZ: People didn't like asbestos. I don't like asbestos, I never met anybody who did. Even the people who made asbestos — the manufacturers — probably didn't really like asbestos. So some courts that didn't like asbestos in the mid 1980's decided to make law for unpopular defendants holding them absolutely liable.

And then when those principles came up against drug manufacturers, the courts realized, whoops, we had better not do that. In the context of escalators, the escalators stopped in Louisiana when all of a sudden the principles that were applied to asbestos were applied by lower courts to escalators. A lot of people had to walk up a long way, and older people had a little trouble in department stores. Equal justice under law.

In the tobacco context, some lower courts decided that the state should have greater power than smokers should. No higher court agreed, thank goodness. Today, Mitch McConnell has a bill in Congress, the Litigation Fairness Act (S.1269), which says no government should have greater rights to sue than any individual. I agree. I don't think anybody in this room, except for a few people, would disagree. But in light of the principles that were established by lower courts in the tobacco context, saying that the government, that the Attorney General, that Bill Clinton, should have greater litigation power against tobacco companies than somebody who is hurt, what does that say? To a reckless driver who plunges a car at a hundred miles an hour and creates a cost, forget about him. It costs something to the state. The auto manufacturer pays because the car went over a hundred miles an hour.

Once you give a state greater power than a hurt individual for his claim, there is no end to where plaintiff lawyers can go roving, buddied and coupled with citizens, or friends in the plaintiffs bar who are very good, and very smart, and very effective, and very political. It is easy to understand what is going on, isn't it? Isn't it easy to understand?

Now, with guns I do slightly differ with my friend John Coale, because, to me, defect in a product means that there is something wrong with the product. I just am from an old school of thought that there has got to be something wrong with the product to find a defect. I know it is odd, I appreciate my lower IQ here, but, Mr. McPherson [from the famous tort case] drove the car, you all know that, and the wheel fell off. There was something wrong with the car.

Now, it wasn't as if we had to protect the public in the event that McPherson was crazy, got into the car, decided to run his grandmother down, and, therefore, we needed to design cars to prevent McPherson from running over his grandmother.

So what the plaintiffs are saying is, that guns work as intended, but they are no good unless we protect those guns against a psycho. Now, in California there was a case where a middle level Court of Appeals upheld a claim made by a very bad gun manufacturer, and this was a very bad gun. What was it, a Tech DC9? This thing was scary. But they made it, it is a legal product, and some guy took it and he went into a law firm, and he mowed down a bunch of lawyers. It was a tragedy. And who did the plaintiffs blame? The criminal lunatic who decided to shoot the unfortunate victims? No! They decided to sue the people who sold the gun. The plaintiffs said it was negligence, that it was foreseeable.

Now, I felt bad about that case personally. But blaming the gun manufacturer for that? [What about a] knife? Do you remember some California case with a knife that was particularly gruesome? It was large and some innocent fellow purportedly killed his exwife and the lover. Knives are very cheap, by the way — even cheaper than Saturday Night Specials. With a thin plastic [cover], [which] costs seven cents a knife, it [could] only be opened if your fingerprints, in some certain way, work with that knife. Well, [if] the criminal [couldn't] get that knife open, there would be some people, two people, alive.

The other theory used by plaintiffs in the guns litigation is negligent distribution with the guns. Now, that is a good one. I like Professor Bogus and what he said about somebody who sells booze to a drunk person. I agree with that. I agree with the Dramshop Acts, and I have made some law in that area. I really believe that if I sell or give liquor to somebody who is drunk, I think I should be subject to liability. And I am a gun salesperson and I give or sell a gun to a known felon, I think I should be subject to liability. (Indeed, the seller of that gun would be liable under federal criminal laws.) You know what it is called, it is called negligent entrustment, and it has been around a long time.

But I will tell you what isn't in the casebook, negligent distribution. There isn't anything in the casebook that talks about somebody who makes a product in Minnesota, [the product] goes across California, then it goes to Chicago, ends up in New York, and now, the guy out in Minnesota is liable.

PROFESSOR LUND: You are all familiar with Chief Justice Marshall's statement: the power to tax involves the power to destroy. I would like to begin by suggesting a corollary to Marshall's dictum; namely, the power to tax covertly increases the temptation to tax destructively.

Now, there are many ways for the government to impose covert taxes, including the inefficient misapplication of tort principles. That is what happened in the tobacco cases where the state tort suits led to settlements that imposed a very large new tax on cigarette smokers. This new tax is inefficient because smokers as a group are already putting more money into the health and welfare system through excise taxes and [in the] consumption of pension payments and nursing home expenses than they [are] taking out through the treatment of smoking related illnesses. This inefficient new tax is especially ironic in light of the fact that 75 percent of those who will pay it earn less than $40,000 per year.

I think the most potent objections to the tobacco cases, however, are procedural rather than substantive. Even if one objects to the manner in which those cases were pursued, and I do object, the result was one that governments may lawfully pursue. Higher cigarette taxes may be a good idea or a bad idea, but they are a matter of policy discretion.

I am not so sure that we can say the same about the new taxes that some municipalities are now seeking to impose on firearms, and I want to spend a few minutes explaining why I say this. The principal effect of the tobacco settlement will be a very large tax increase amounting to a quarter of a trillion dollars, and a small reduction in cigarette consumption. Nothing like that is possible in the case of the gun industry, however, which has none of the earmarks of a cash cow waiting to be milked by avaricious governments and their contingent fee tax collectors. Rather, these lawsuits are principally aimed at reducing the supply of guns.

In the memorable words of Philadelphia's former mayor, Ed Rendell, and I am quoting, "If enough cities file at one time, the sheer cost of defending these lawsuits would be hard for the gun industry." So there is the strategy [to] harass the industry with novel and highly questionable tort suits in order to reduce the number of guns in our society. And Mayor Rendell reportedly used at least $150,000 of taxpayer money to pay a law professor for drafting the complaint against the gun manufacturers. Pretty good work if you can get it.

The various legal theories advanced in this new wave of lawsuits are vulnerable under traditional tort principles, but those principles are subject to change. In the gun cases, and in the gun cases alone, I believe that the Second Amendment provides an independent constitutional reason for courts to leave the traditional law of torts alone.

I want to emphasize at the outset that I am not predicting that any court will agree with me. Indeed, government actions that are much more constitutionally problematic have been routinely upheld, and federal courts have never relied on the Second Amendment to invalidate an otherwise lawful government action.

As many of you know, a case now pending in the Fifth Circuit could become the first such case, but I don't recommend betting a whole lot of money on it.

Several decades of adverse precedent to the contrary notwithstanding, these tort theories do raise serious constitutional questions, and those questions provide, at the very least, strong reasons for courts to resist the urge to alter the common law in ways that would discriminate against guns and gun manufacturers.

My argument is based on three propositions. First, that the Second Amendment protects the right of individuals to keep and bear arms, not some sort of collective states' right to maintain military organizations like the National Guard.

Second, that the Second Amendment is or should be incorporated under the Fourteenth Amendment so that it protects individuals against action by the states, as well as by the federal government.

And, third, that application of the tort theories advanced by the municipal plaintiffs in these cases might well infringe the right to keep and bear arms protected by the Second Amendment.

Starting with the first, if there is one proposition that modern scholarship has established beyond any reasonable debate, it is that the Second Amendment right to keep and bear arms belongs to individuals, not to governments. The constitutional text is quite clear about this point, and there is absolutely nothing in the legislative history to suggest a states' right interpretation. If taken seriously, moreover, the states' right interpretation leads to absurd consequences.

In order to save time, I will ask that you provisionally assume that I am right about this, but I won't ask you to put your faith in me. Instead, I will invoke the authority of Professor Lawrence Tribe, who has finally abandoned his long-standing commitment to the states' right theory. Here is what he says in the new edition of his treatise: The Second Amendment recognizes a right, admittedly of uncertain scope, on the part of individuals to possess and use firearms in the defense of themselves and their homes."

Although many lower courts have disagreed with Professor Tribe and me about this issue, the Supreme Court has never done so. State courts are, therefore, perfectly free to adopt a more reasonable interpretation of the Second Amendment. Assuming that a court accepts the correct interpretation, however, the Second Amendment can only create an obstacle to liability under state tort law if this constitutional provision applies against the state governments as well as against the federal government.

The last time the Supreme Court addressed this issue was in 1886. If one applies the substantive due process principles on which the Court purports to rely in its modern incorporation cases, there can be no doubt that the Second Amendment will be applied against the states, just like almost every other provision of the Bill of Rights. In fact, the argument for incorporating the right to arms through the Fourteenth Amendment is actually much stronger than for such rights as free speech and free exercise of religion.

Assuming, as I assert, that there is a good incorporation argument based on existing Supreme Court precedent, it would be completely appropriate for lower courts, including state courts, to anticipate this development by reviewing their own laws under the Second Amendment. If a court agreed that the Second Amendment secures a right belonging to individuals, and that this right is or may be made good against the state governments, a genuinely difficult question would then be presented: might this right not be violated if a state adopted one of the tort theories advanced by the municipal plaintiffs?

Although the municipalities' tort theories are varied and probably evolving, their common element seems to be that those responsible for lawfully supplying firearms to the civilian market should be held liable for damage caused by the criminal or careless misuse of the products. If such a tort theory were adopted, it would have the same effect as a discriminatory tax on guns, because the anticipated cost of future liability judgments would have to be incorporated into the cost of the product.


The tort theories now being advanced in an effort to restrict the circulation of guns are very much akin to the differential tax scheme at issue in Minneapolis Star, because they would never be applied to analogously situated products. Ford Motor Company, for example, would never be held liable for making cars that can be operated by someone other than the registered owner, or an incompetent juvenile, or by a criminal. Nor would Ford ever be held liable for selling lots of cars with high powered engines in areas where such cars are popular among criminals, or among reckless and accident-prone young men.

Accordingly, the tort theories being advanced in these cases are obviously being aimed in a discriminatory manner at firearms, and firearms alone. This is obvious both from the novelty of the theories and from the fact that the theories are being advanced primarily by governmental plaintiffs, claiming that they have been injured in their capacity as governments, not in their capacity as consumers.

Although I believe that the Constitution would be violated by application of these discriminatory tort theories to firearms manufacturers, it is true that this takes me near the outer boundaries of the Second Amendment (just as the Minneapolis Star case resolved an issue within the outer boundaries of the First Amendment). I readily concede that it would be uncharacteristically bold for courts to begin operating at the outer edges of a constitutional right before its core meaning has become well recognized.

Such boldness, however, is not entirely inconceivable, and we have a model for it in Judge Alex Kozinski's opinion in United States v. Gomez. In that case the Ninth Circuit interpreted the federal statute that forbids possession of firearms by convicted felons to include an unstated exception for cases where the felon has a pressing need to possess the gun for self-defense. Although the court's interpretation of a justification defense into the statute did not rest on the Second Amendment, Judge Kozinski noted that the statute would raise serious Second Amendment questions unless it was interpreted to include this exception.

The Supreme Court has repeatedly reaffirmed the principle that statutes should be interpreted, whenever possible, so as to avoid raising constitutional questions, and the Court has even gone so far as to rewrite statutes that would otherwise raise such questions. The same principle should be applied to avoid common law innovations that raise serious constitutional questions. Indeed, such judicial restraint is even more appropriate in the common law context than in statutory interpretation because there is no countervailing analog to a court's presumptive obligation to apply the legislature's commands as written.

Most of what I have offered today are legal arguments, which may not be of much interest [unless] you also believe that the right to keep and bear arms is a right worth preserving into the 21st Century. There is a great deal to be said on that question, but not enough time to pursue the discussion now.

I would like to note in conclusion, however, that our British cousins, who created the right to keep and bear arms, themselves no longer enjoy it. Our founders recognized that a population disarmed by the government is a population ripe for enslavement. Once we accept the notion that there is something illegitimate or socially noxious about arming oneself against criminal violence, as the defendant had done in the Gomez case, our helplessness and dependence on the government will have reached new depths. That kind of helplessness was a quality that the framers of our Constitution associated with people who were fit to be subjects of a king rather than to be citizens of a republic.

At the moment, our legislatures do not seem to be headed in the same direction as the British Parliament. Congress has shown little interest in disarming the people, and many state legislatures have actually liberalized their gun control laws dramatically. That may well change, and it may be too much to hope that when it does, the courts will start enforcing the Second Amendment, but it should at least be [the case] that common law courts have no business trying to lead us through a back door down the road to serfdom.

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