Publication Date

2006

Document Type

Article

Abstract

As the twentieth century came to a close, the gun industry was under siege. The murders of twelve students and a teacher at Columbine High School in April 1999 brought a chorus of calls for legislation limiting access to guns. A year later, demonstrators gathered in front of the U.S. Capitol building for the Million Mom March, the largest rally ever held in support of gun control measures.

The industry's greatest concern, however, arose in another arena. Gun manufacturers found themselves in courts on an array of tort lawsuits across the country. Many of those asserting claims were individuals injured in shootings or the families of people killed in shootings. More than thirty government entities, cities and counties, filed lawsuits seeking to recoup law enforcement expenses and other costs incurred because of gun industry practices fueling gun violence and crime. Even the NAACP joined in, filing a lawsuit accusing gun makers of creating a public nuisance with disproportionate adverse effects on African-Americans. The industry faced an intense legal onslaught.

Six years later, the storm of litigation over guns appears to have ended. On October 26, 2005, President Bush signed the Protection of Lawful Commerce in Arms Act, giving the gun industry a unique exemption from most legal liability that otherwise might be imposed under state tort law. The new immunity created by this federal statute will not just block the filing of new claims against gun makers, but will wipe out cases already pending as well. If the law survives constitutional challenges, it will end one of the most interesting and controversial chapters in modern American tort law.

As the era of tort litigation over firearms comes to a close, scholars already have begun to look back on it to explain what happened and to assess its significance. The most comprehensive effort to date is "Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts," a collection of essays edited by Timothy Lytton of Albany Law School. The book provides a comprehensive and well-balanced overview of gun litigation, bringing together work by scholars and other experts who view gun litigation from diverse perspectives. The contributors range from a lawyer who represents gun rights groups to a policy analyst for a gun control organization, with most of the authors falling somewhere closer to the middle ground. The essays include careful analyses of specific legal matters such as the constitutional and liability insurance issues raised by the lawsuits, as well as examinations of broader questions surrounding the litigation, such as public health and criminological assessments of gun violence. This Review examines how the essays in Suing the Gun Industry portray the achievements and failures of the gun lawsuits. While the essays share a conviction that the gun litigation was an unequivocal failure, this Review shows how and why that consensus view of the gun litigation overlooks important ways in which the suits were more effective than most observers have acknowledged.

Publication Title

Santa Clara Law Review

Volume

46

Issue

2

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