Imagine a product that serves no purpose but to kill people and each year causes many deaths. Surely politicians would compete with each other to pass laws to control it. If nothing else, the manufacturer of such a product, which is foreseeably used to murder people, would be held liable. Not, though, if the product is an assault weapon. The federal law banning assault weapons expired in 2004, and another federal law precludes civil liability for gun manufacturers. It is time to re-enact the Federal Assault Weapons Ban and to repeal a federal law adopted in 2005 that protects gun manufacturers from civil liability.
James Holmes allegedly went into an Aurora, Colo., movie theater with an arsenal that included a semiautomatic assault rifle and 6,000 rounds of ammunition. In a very brief time, he shot 70 people and killed 12. This was facilitated by the semiautomatic weapon, which when fired automatically extracts the spent cartridge casing and loads the next cartridge into the chamber, ready to fire again. If Holmes had used a handgun, far fewer would have been hurt or killed before he was stopped.
This, of course, is just the most recent deadly rampage. In 2011, there was the shooting of Representative Gabrielle Giffords (D-Ariz.) and 18 people in a Tucson, Ariz., parking lot, which killed six. In the past several years, there was the incident in which student Cho Seung-Hui killed 32 at Virginia Tech before killing himself; the murders at Fort Hood, where Army Major Nidal Malik Hasan is accused of killing 13 people in a rampage; and the tragedy in Binghamton, N.Y., where Jiverly Wong opened fire at a New York immigration center and killed 13 people. Professor James Alan Fox of Northeastern University estimates that there are about 20 mass shootings a year in this country.
Semi-automatic weapons — such as the Uzi, the TEC-9, some AK-47s and the Colt AR-15 — have the capacity to kill a large number of people in a short amount of time. In fact, they have no other purpose. Semi-automatic weapons are not used to hunt; they would obliterate the animal. They exist to fire multiple bullets in quick succession, a function that is useful only in war.
In 1994, Congress passed and President Bill Clinton signed the Federal Assault Weapons Ban. The law prohibited individuals from possessing assault weapons, like the AR-15 rifle allegedly used by Holmes. It is a civilian semi-automatic version of the military M-16 and was a “semiautomatic assault weapon” under this law. But in 2004, this law expired and was not renewed. President George W. Bush opposed extension of the law, and the Republican-controlled Congress agreed. Since then, efforts in Congress to reinstate the law have been unsuccessful and have not even come for a vote.
At the very least, gun manufacturers should be held civilly liable for the injuries and deaths that foreseeably result from their products. Traditional principles of products liability should be applied to assault weapons. Beginning around 2000, there was a rise in the number of lawsuits against gun manufacturers. However, in 2005, Bush signed a law that shields gun makers from being sued.
EXEMPTION FROM TORT LIABILITY
The Protection of Lawful Commerce in Arms Act is also commonly referred to as the “Gun Protection Act.” The law dismissed all current claims against gun manufacturers in both federal and state courts and pre-empted future claims. The law could not be clearer in stating its purpose: “To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm caused solely by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” There are some narrow exceptions for which liability is allowed, such as actions against transferors of firearms who knew the firearm would be used in drug trafficking or a violent crime by a party directly harmed by that conduct.
It is outrageous that a product that exists for no purpose other than to kill has an exemption from state tort liability. Allowing tort liability would force gun manufacturers to pay some of the costs imposed by their products, increase the prices for assault weapons and maybe even cause some manufacturers to stop making them.
Thus, the law should go back to what it was a decade ago, when assault weapons were prohibited and civil liability for them existed. There is no Second Amendment problem with this. In 2008, in District of Columbia v. Heller, the U.S. Supreme Court for the first time found that the Second Amendment protects a right of individuals to have handguns in their home for the sake of safety. The court was very clear that this is not an absolute right, and nothing in the court’s opinion implies that there is a right to have all forms of weapons. It is unimaginable that the court will find a Second Amendment right for people to possess tactical nuclear weapons or chemical and biological arms or automatic and semi-automatic weapons.
Opponents of gun control argue that such bans don’t work and that criminals will still get semi-automatic weapons. There certainly is evidence to dispute that and to support the view that the 1994 act did decrease the availability of assault weapons. But in other areas, like illegal drugs, the fact of criminal noncompliance is never accepted as a reason against regulation. Besides, that is no reason against having civil liability for gun manufacturers.
After the tragedy in Aurora, I expected even the Republican presidential candidate, Mitt Romney, to argue for a ban on assault weapons. He signed such a law when he was the governor of Massachusetts. I was deeply disappointed that not even President Barack Obama did so. Whatever one’s views of the Second Amendment and gun rights, there is no reason to allow assault weapons and not to create civil liability for manufacturers. How many more tragedies must there be before our politicians have the courage to stand up to the National Rifle Association and take action?
Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.