The last, best
hope for anti-gun legislation?
Sullum for Townhall.com
As American soldiers go to war in Iraq, their lives will depend
on the weapons they carry. Meanwhile, the industry that makes
those weapons is under attack here at home.
In Brooklyn on Monday, jury selection is scheduled to begin
in a federal lawsuit blaming gun manufacturers for violent
crime. The suit was filed by the National Association for
the Advancement of Colored People, whose president has called
it "an effort to break the backs of those who help perpetuate
(the) oversaturation of weapons in our communities."
is seeking an injunction that would impose specific restrictions
on firearm sales, effectively setting national gun control
policy by judicial fiat. It argues that gun makers have created
a "public nuisance" through "negligent marketing"
-- "oversupplying" their products even though they
know some will end up in the hands of criminals.
The same basic argument has been used, so far unsuccessfully,
by municipalities seeking to get money from the industry and
regulate it through the courts.
Of 32 gun
cases filed by local or state governments (some of which have
employed other legal theories), 25 have been partly or completely
dismissed. This month a California judge dismissed lawsuits
against gun makers by 12 counties and municipalities that
tried to use the public nuisance argument.
case is different because it will be heard by U.S. District
Judge Jack B. Weinstein, who is notorious for his activism
and anti-gun bias. Weinstein presided over the 1999 case Hamilton
v. Accu-Tek, the only case in which a jury has awarded damages
based on the negligent marketing theory.
in that case was Elisa Barnes, who pioneered this approach
and is also handling the NAACP's lawsuit. Barnes went out
of her way to ensure that her case was assigned to Weinstein,
who will decide the outcome himself, with the jury playing
only an advisory role.
Shooting Sports Foundation (NSSF), an industry group, notes
that Barnes mysteriously omitted Beretta USA, the country's
third largest handgun maker, from the list of defendants,
although the company was included in her earlier suit. Why?
Perhaps because Beretta USA and the NAACP are both incorporated
in Maryland, which would have made it impossible for Barnes
to assert the "diversity jurisdiction" that got
her case into federal court.
court, no Judge Weinstein," the NSSF observes. "Elisa
Barnes and the NAACP thought it was more important to have
the case heard by Judge Weinstein, who they obviously believe
is favorably disposed to their cause, than to have one of
the largest and most well known members of the firearm industry
in the case."
demonstrated his value to the anti-gun cause in Hamilton v.
Accu-Tek, which was filed by relatives of shooting victims.
He let the case proceed when almost any other judge would
have dismissed it, and he bullied the jurors into a verdict
they would not have arrived at on their own.
deliberated for six days, repeatedly sending out notes saying
they were deadlocked, but Weinstein told them to keep arguing.
When they finally announced a verdict, the puzzling mix of
seemingly contradictory findings suggested they had tried
to split the difference between irreconcilable positions.
They said 15 of 25 manufacturers were negligent but only nine
were liable, and they awarded damages -- half a million dollars,
small potatoes by the standards of modern litigation -- for
only one shooting.
was effectively nullified by the New York Court of Appeals,
which was asked by the federal appeals court to address a
key issue involving state law. Concerned about "potentially
limitless liability" and "the unfairness of imposing
liability for the acts of another," the state court noted
that "the connection between defendants, the criminal
wrongdoers, and plaintiffs is remote" and that "none
of the plaintiffs' proof demonstrated that a change in marketing
techniques would likely have prevented their injuries."
If there is
a similar outcome in the NAACP case, the campaign to restrict
guns through the courts could be nearing its end. Although
a handful of city-sponsored cases are proceeding in New Jersey
and Ohio, anti-gun litigators are not likely to find a friendlier
venue than Weinstein's court.
But if Weinstein
sides with the NAACP (as he almost surely will) and his decision
is somehow upheld on appeal, it will be a green light to enemies
of the Second Amendment and to every judge who fancies himself