Ban lawsuits that hurt legal gun industry

By Dave Kopel

Philadelphia Inquirer, May. 19, 2003. More by Kopel on lawsuits against the firearms business.

Congressional legislation to ban junk lawsuits against law-abiding firearms manufacturers and sellers is long overdue. Most states, Pennsylvania included, already have such laws.

The junk lawsuits are a direct assault on First Amendment rights. Among the victims of the suits are the firearms industry trade associations, such as the National Shooting Sports Foundation. None of these organizations sells or makes guns. Instead, the organizations' activities consist almost exclusively of exercising First Amendment rights to conduct public education campaigns, get-out-the-vote drives, and other free speech.

Suing someone in revenge for their lawful exercise of First Amendment rights is known as a SLAPP - a Strategic Lawsuit Against Public Participation. Many legislatures have enacted laws against such litigation abuse, and congressional action against one particular form of SLAPP is a good first step towards a nationwide ban on all SLAPPs.

At an American Bar Association symposium in 1999, one of the plaintiffs' attorneys for the antigun lawsuits explained that the attorneys had read the Dun & Bradstreet reports on the firearms companies, estimated how much the companies could spend defending themselves against litigation, and then filed so many cases in so many jurisdictions that the gun companies would not be able to spend the money to see the cases through to a verdict.

Even if all the gun companies in America were put together, they would not constitute a single Fortune 500 company, so the gun companies are much more vulnerable to abusive litigation than deep-pocketed giants such as McDonalds or the New York Times.

Firearms are the most heavily regulated consumer product in America. They are the only consumer product for which a retailer must obtain FBI permission in advance for every single sale. Retailers must also keep records on every gun sold to every customer. The federal gun laws alone comprise 75,000 words - the size of a book. State gun laws are larger still.

The congressional tort reform would in no way restrict lawsuits against anyone who violates any gun law. For example, straw sales have been illegal ever since the Gun Control Act of 1968. In a straw sale, a prohibited person (e.g., a convicted felon) uses a straw purchaser to buy the gun for him. Any firearms dealer who knowingly participates in a straw sale commits a major federal felony. Someone injured as a result of the dealer's crime should have every right to sue the dealer, and the bill would preserve that right.

Likewise, a company that makes a gun that is actually defective would still be liable. But it should not be possible to try to bankrupt gun companies with suits claiming that making guns or operating a gun store, in strict conformity with all laws, constitutes a "public nuisance." Nor should it be possible to sue companies for not including gun accessories which haven't even been invented.

The lawsuits even target firearms companies for making guns that are especially well-suited for personal protection, such as compact, light handguns good for carrying for self-defense, as is legal in Pennsylvania and most other states.

The main reason our Constitution grants Congress the power to "to regulate commerce... among the several States" is so Congress could stop local actions that interfered with lawful commerce. Congress also has the power (and the duty) under Section Five of the Fourteenth Amendment to act against local actions that infringe on the Second Amendment and the right-to-bear-arms guarantees in the Pennsylvania Constitution - as well as almost every other state constitution.

There is no right to file abusive lawsuits that chill the exercise of constitutional rights. That is why the Supreme Court, in the 1964 case New York Times v. Sullivan, restricted libel suits that infringed on First Amendment rights. Pennsylvania, like most other states, has enacted legislation affirming that gun laws should be made by the legislature, not by trial attorneys trying to end-run the democratic process.

The Senate bill would in no way limit the expansion of gun-control laws; it would simply ensure that new restrictions are created through open debate in our legislatures.

Dave Kopel, columnist for National Review Online, is coauthor of "Gun Control and Gun Rights." His Web site is

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