Nelson Lund*

When Hew Pate called to invite me to speak on this panel, he said the subjects were tobacco, firearms, alcohol, fatty foods, and the future of product liability law. I told him I was in favor of all of those things except the last one. After thinking it over, I’m sticking to that position.

With respect to firearms, the good news is that courts and legislatures have generally been very resistant so far to proposals to manipulate the law of tort in an effort to smuggle new forms of gun control into the law through the back door. The bad news, of course, is that our courts don't have a very good record when it comes to resisting bizarre legal theories over the long haul.

Let’s begin with the ostensible purpose and rationale for giving special and adverse treatment to guns in the law of tort. The most important theories that have been proposed usually involve some sort of strict liability imposed upon the manufacture of certain classes or subclasses of firearms.

The first important case accepting this sort of theory came from Maryland’s highest court in 1985. The Maryland court applied a new common law theory of strict liability against the manufacturers of so-called Saturday Night Specials, which were defined primarily by small size and low price.(1) The state legislature subsequently abrogated that decision. In the more recent case from California, a trial judge accepted a similar theory for so-called assault weapons, which were defined primarily in terms of certain non-functional cosmetic characteristics.(2)

I believe that there are only two rational grounds on which such legal theories might be defended. One would be that they can help control crime, and the other is that they would be useful in ensuring compensation for the victims of the misuse of firearms. I don't think either rationale, however, can withstand rational scrutiny.

Let's start with crime control. The first thing to remember, and this is often forgotten, is that guns have legitimate as well as illegitimate uses. The legitimate uses, moreover, include crime control. The most reliable data indicate that guns are misused for criminal purposes about one million times each year, and accidental deaths amount to less than two thousand annually. On the other hand, guns are used successfully in self-defense some two and half million times each year. Furthermore, there are good data indicating that if all states allowed responsible citizens to carry concealed weapons, as we do in Virginia, the result would be about 1,500 fewer murders, over 4,100 fewer rapes, and over 60,000 fewer aggravated assaults each year. So, in terms of crime reduction, social utility is enhanced, not reduced, by widespread gun ownership. Placing an indirect tax on firearms through the tort system would disproportionately affect gun ownership among law-abiding citizens (for whom demand is more elastic than among criminals), thus promoting crime.

It would, however, make sense to reduce the availability of certain subclasses of weapons if those subclasses are or would be used exclusively or almost exclusively for criminal purposes. Common sense suggests that this proposition is plausible in extreme cases such as heavy artillery, and perhaps some other military arms such as machine guns. Those subclasses of weapons, however, are already heavily restricted by statute and are almost never used for criminal purposes.

The proposition is completely implausible with respect to any subclass of ordinary civilian firearms, such as so-called Saturday Night Specials or semi-automatic, so-called assault weapons. Generally speaking, the guns preferred by criminals are exactly the same guns preferred by law-abiding citizens for purposes of self-defense: well-constructed, medium to large caliber handguns.

Now, the effect of imposing strict liability on the manufacturers of arbitrarily selected subclasses of civilian firearms would be to impose an indirect tax on the purchasers of those weapons. The exact effects of the tax would differ somewhat, depending on which subclass is selected, but the tax will always have perverse results. With Saturday Night Specials, for example, criminals would be induced at the margin to substitute more lethal weapons while law-abiding poor people would tend to be priced out of the market.

Another possible rationale for strict liability imposed on gun manufacturers is to compensate the victims of the misuse of guns. This is as irrational in this context as it is in others. Using the tort system as a device for providing social insurance is inefficient, and I think you can see intuitively that this is true if you ask why we don't impose strict liability on automobile manufacturers for the misuse of their products.

Why then is there so much interest in getting the courts to change the law in what seems to be an obviously irrational direction? The answer, I think, is that some people have a strong emotional aversion to guns and they would like to see a world in which guns become de-legitimized. What they want, in plain terms, is to impose their personal preferences on everybody else. We have seen this happen before with alcohol, and we know how successful Prohibition was. We now seem to be moving in the same direction with respect to tobacco, and perhaps fatty foods. If we keep it up, we will no doubt get much the same lovely results that we saw during Prohibition.

With guns, however, we run the risk of moving from the realm of relatively petty tyrannies into more serious waters. The Second Amendment was included in the Constitution because the framers 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, our helplessness and dependence on the government will have reached new depths. That kind of helplessness was a quality that the framers of our nation associated with subjects rather than citizens.

At the moment we seem to be moving in the opposite direction politically. This Congress has shown no interest in disarming the people, and many state legislatures have moved recently to liberalize their gun control laws. That may change, and it is probably too much to hope that when it does the courts will start enforcing the Second Amendment. But it ought at least be self-evident that the courts have no business trying to lead us through a back door down the road to serfdom.

*Nelson Lund is Professor of Law and Acting Associate Dean for Academic Affairs at George Mason University. Professor Lund holds a doctorate in political science from Harvard and a law degree from the University of Chicago. He has served as a law clerk to Judge Higginbotham on the Fifth Circuit and to Justice O'Connor on the Supreme Court. Before he began teaching, he worked in the Justice Department’s Office of Legal Counsel and as Associate Counsel to the President. He has published articles on the Second Amendment and other constitutional issues.

1. 1Kelley v. R.G. Indus., 497 A.2nd 1143 (Md. 1985).
2. 2In re 101 California Street, No 959316 (Cal. Super. Ct, filed April 10, 1995).