The Protection of Lawful Commerce in Arms Act (H.R. 800/S. 397) is being offered in response to the large number of frivolous lawsuits being brought against the firearms industry. It’s no secret that anti-gun groups are attempting to achieve their agenda through the courts since they are not succeeding in pushing it through congress. Their strategy, it seems, is to bleed out the industry with endless legal battles, even if the vast majority of the suits fail. The proposed legislation is all wrong in principle, but it seems like the best available option at this point, so I reluctantly support it.

What the proposed measure does is basically eliminate gun manufacturer and dealer liability for the criminal misuse of guns. You might think that this is a totally reasonable thing to do. After all, how can we hold people or businesses responsible for the actions of other people? The thing is, we actually do this all the time in our daily lives. If you give a toddler a permanent marker and set him free in a white room, you can say it’s all his fault when the walls and furniture are ruined, but you’d know full well that it’s partially your fault too. It’s the same thing if you hand a gun to a mental patient or a criminal, or simply leave one unattended on the front lawn; if someone gets shot you share at least some of the blame. Perhaps you’re only morally culpable to the extent that you can foresee the negative consequences, but you’re always in some sense responsible because you were a link in the chain of causality.

Here’s another way to look at it. Even though I don’t think it’s generally true, suppose that the sale of guns by a certain manufacturer was a net negative on society, all things considered. In other words, the harm from accidental and purposeful shootings exceeded the benefits of self defense and the enjoyment derived from hunting, target shooting, collecting and all the rest. In such a case, we want the system to send the correct signals to this manufacturer. To be specific, we want the business to be unprofitable — to show a loss equivalent to the damage being done. The manufacturer can either change its ways or go out of business (or stay in business running at a monetary loss; this could be okay if the damages were being paid and properly directed to compensate victims).

Without any liability, however, this will not be the case; the manufacturer will make money because the benefits of gun ownership will be passed along to it in the form of sales receipts, but the costs associated with negligent and criminal use of guns will be borne by other people. The signals will be all wrong and the manufacturer will stay in business with no incentive even to change its ways.

On the one hand then, I think the anti-gun folks have a case; eliminating liability is all wrong. On the other hand, these anti-gun zealots are not being at all consistent. They are quite clearly only interested in driving gun manufacturers out of business. For one thing, if we are going to hold manufacturers financially liable for shooting deaths and injuries, doesn’t it make sense that the people who actually pulled the trigger should be held liable as well? Of course they should. In fact, a sensible approach (at least in most cases) would be to bleed the shooters completely dry financially before even looking at the gun dealers and manufacturers.

There are different ways we could approach it, and I think they’d all amount to about the same thing in the end. One is that we could take each shooting on a case-by-case basis. If a criminal shoots someone, for example, we put a dollar figure on medical bills, lost wages, pain and suffering, etc. and get as much of this as we can out of the shooter or his insurance company. There should be no escape from this liability on the part of the shooter; if he can’t pay right away, then we garnish the better part of his wages for the rest of his life if necessary. If, after all that, however, the bill is still not paid, then we move up the chain to the dealer (assuming he’s next in line, there may be others in line first), and then, finally, the manufacturer. In practice, we should never actually get to the manufacturer, since the dealer (if not someone sooner) would be insured and the insurance company would pay. This is not “punishment” for the dealer or manufacturer, mind you, it’s simply a cost of doing business. The money, once collected, is to go to the victim, not the state (except, possibly, to cover court costs and the like).

Another, possibly more elegant approach is to charge the shooter not for actual damages, but for statistically expected damages. If shooting someone once from 20 yards with a 45-Colt causes, on average, $40,000 in damages, then the shooter is liable for that amount regardless of the actual damages in his particular case; the court system provides the insurance-like function of collecting average damages from criminals and paying actual damages to victims¹. This approach is, arguably, more fair in that it charges people for the damages that they could have reasonably foreseen — sometimes more, sometimes less than actual damages. I think it would also tend to lower the cost to dealers and manufacturers somewhat, since the large peaks — which common criminals are likely unable to pay — would be smoothed out. As in the first approach, damages are to go to the victim, not the government.

Yet another variation is one under which liability, as a percentage of the total, is distributed to the various parties (shooter, dealer, manufacturer, possibly others) on a case-by-case basis, based on the particulars of each case. To be honest, I can’t really figure out how an overall system could be made to work this way (since it would be hard to guarantee that the numbers would add up right and all the bills would be paid), but it’s somewhat appealing since sometimes the shooter himself is actually not the one most responsible for the shooting. Consider, for example, children, drunks, the mentally incompetent, or even just a reluctant crime partner. People who knowingly provide weapons to such people or encourage their behavior share a large portion (perhaps most) of the blame. There are plenty of such hypotheticals, and I think at least some component of this idea would have to find it’s way into either of the first two ideas if they were to actually be implemented.

There are undoubtedly other variations on this theme, but the real point is that it’s totally unreasonable and unfair to subject only select entities to financial liability. What we’re talking about, at least kind of, is a system of restitutional — as opposed to retributional — justice. I’m all for this if we do it right. Step one is to apply it uniformly, not just to those who are the targets of political ill-will. For it to truly be restitutional justice, of course, the money that is collected also needs to be directed to the victims. I don’t think the anti-gun lobby and their lawyers really care about this; they just want to soak the gun manufacturers.

Finally, a workable system of restitutional justice requires that the the monetary penalties be reasonable, and have a known basis such that everyone can know ahead of time how they will be computed. As it stands now, it is nearly impossible for the gun industry to know what it’s up against. Anti-gun lawyers seem to simply pull a gigantic figures out of thin air (based on some nonsensical “cost to society,” or emergency room bills, or whatever) and try to get them to stick. If the judge is sympathetic to the anti-gun cause, then they just might (but the money will never go to victims anyway). No reasonable system of restitutional justice can rely on such baseless and arbitrary damage awards.

So, while the anti-gun crowd does have a valid objection to shielding gun makers and dealers from liability, the direction they are going right now is all the more terribly wrong. The fact that they do not have justice or economic efficiency in mind is clear for all to see. Furthermore, going to a full, consistent system of restitutional justice is not even on the radar screen.

And although I pointed out at the beginning that gun makers would not get the proper signals without being liable for some of the damages associated with criminal use of guns, it’s really not as bad as that. With gun makers and dealers receiving the proper signals, in the form of high or low liability insurance premiums, they would be motivated to strike a balance between making their product widely available and recklessly selling guns to all comers. Under such a system, they would almost certainly have some restrictions on who they sold to; or they might require proof of firearm liability insurance, or whatever. Notice, however, that this is exactly what the government is attempting to do in its own ham-fisted manner. The government has created a gigantic system of hoops that gun manufacturers and dealers must jump through in order to do business. By doing so, I would argue, they are implicitly indemnifying gun manufacturers; they are saying, “so long as you follow the rules, we take responsibility for whatever happens next.” Things are far from ideal this way, but it’s not as though manufacturers and dealers are getting a free pass; they still have to follow the rules, and as far as limitations on sales go, the rules might just ever so vaguely approximate what we’d see under a free market/liability system anyway.

Although I’m an ardent supporter of gun rights, I’ll agree that a completely free market in weapons, with no manufacturer or dealer liability, is not the correct solution. What we have now is a very far cry from a free market, however, and I don’t see a consistent system of gun liability being implemented any time soon. Given that, I reluctantly support the PLCA Act as a means to stop the abuse of gun manufacturers by anti-gun groups via the court system.

[Added]: If people or local governments think they have a case based on the supposedly easy availability of guns, or the notion that guns too easily find their way into the wrong hands, (and if they don’t care about the blatant injustice and of bypassing shooters themselves in their quest for liability) the entity to sue is the federal government, since it is the one responsible for the system.

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[1] Paul Birch takes credit for the idea of having the court pay victims actual damages while collecting expected damages from perpetrators. If the charges to criminals are adjusted to include court and police costs, the system can provide a tax-free police/judicial system as well.