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Bang Bang, Your Suit's Dead
Two courtroom wins for the Second Amendment.
BY COLLIN LEVEY
Wednesday, January 29, 2003 12:01 a.m.
This week, two unlikely judges shared a small moment of justice on behalf of the Second Amendment.
In Florida, Judge Jorge Labarga, of butterfly ballot fame, threw out a $1.2 million award against the distributor of a handgun used by a kid to shoot his teacher. In the Ninth Circuit, Carter appointee Stephen Reinhardt returned to an earlier antigun opinion and deleted references to the work of Michael Bellesiles, the historian whose Bancroft Prize was revoked because of serious questions about the honesty of his scholarship.
Why are these judicial straws in the wind significant? They mark a trend that began to emerge last year. As Americans have begun to think differently about their personal safety, courts have begun looking at the gun question in a more sober light.
The Florida case turned interesting last November, when a state court jury held, in a suit brought by the widow of the murdered middle-school teacher, that the handgun maker was partially liable for the death of her husband. In addition to laying blame at the feet of another person, who failed to lock up the gun, and the school board, for failing to control the 17-year-old killer, the jury slapped Valor Corp. with $1.2 million in damages.
Though the school board and Valor reached out-of-court settlements before the civil lawsuit, wary eyes were trained on Mr. LaBarga, whose decision would have potentially important implications. Lawyers and legislators across the country have been working to chip away at product-liability protections for gun companies, and by extension, distributors. Here was a test.
Last summer California's Senate voted to make it easier for people to sue manufacturers for negligence, and several unresolved municipal lawsuits are going the same route. When Cincinnati wanted to sue the pants off gun companies, the Ohio Supreme Court allowed the city to go ahead on grounds that gun manufacturers were potentially liable for creating a "public nuisance."
This strain of thinking has made a few inroads lately. Just days before Mr. LaBarga threw out the Valor award, relatives of two sniper victims in Washington filed suit against the Windham, Maine-based maker of the XM15 rifle that was wielded to such deadly effect by John Allen Muhammed and John Lee Malvo.
Gun companies make attractive targets, even if their pockets aren't as deep as those of cigarette makers. And as any trial lawyer worth his Ferragamos will tell you, product liability suits against anything from cigarettes to drugs like Norplant have succeeded without ever going to trial. The political heat regularly forces manufacturers to settle rather than risk a bankrupting verdict, plummeting stock price or knee-jerk congressional action.
But even so, guns are supposed to shoot the things you point them at, and would be no use to legitimate users if they didn't. It's a stretch even for today's wacky juries not to see the disconnect in calling the failure to put a trigger lock on a gun "negligence" when no law or regulation requires you do to so. As Mr. LaBarga noted, a maker can be considered negligent only if its product is defective, and a product cannot be defective if it works the way it was designed to.
The Reinhardt decision to delete the work of Mr. Bellesiles may be of less legal significance but it has more cultural resonance. Though Judge Reinhardt didn't alter his finding in the case, he did feel obliged to erase references to an author whose book gun controllers had embraced because it seemed to demonstrate that Americans' belief in private gun ownership was of recent historic vintage, not a product of our deep past.
Mr. Bellesiles claimed to use colonial records to prove the early Americans, including those who eventually would write the constitution, were not gun owners and couldn't possibly have put the interpretation on the Second Amendment that gun defenders to today. The story fell apart when other scholars tried to recreate Mr. Bellesiles's findings by visiting the same records. Where he found few colonial homes with guns, they found many.
All this comes against a background of renewed interest in guns for self-defense. Gun-club membership is up across the country. And unlike cigarettes, whose users aren't eager to be seen standing up and defending the industry, gun owners have always had a stronger political voice than gun manufacturers. The NRA, after all, is not a trade group--it's group of grass-roots gun owners.
The courts read the election results. Of the municipal lawsuits against firearms manufacturers, Chicago's was dismissed, Detroit's is bogged down, and the grandpappy of them all, the case filed by New Orleans, was torpedoed by Louisiana's own Supreme Court--a decision the U.S. Supreme Court declined to review. Those who hoped or feared the guns were the next tobacco should be beginning to realize it won't be.
Ms. Levey is an assistant features editor of The Wall Street Journal's editorial page. Her column appears on alternate Wednesdays.
Copyright © 2003 Dow Jones & Company, Inc. All Rights Reserved.
Two courtroom wins for the Second Amendment.
BY COLLIN LEVEY
Wednesday, January 29, 2003 12:01 a.m.
This week, two unlikely judges shared a small moment of justice on behalf of the Second Amendment.
In Florida, Judge Jorge Labarga, of butterfly ballot fame, threw out a $1.2 million award against the distributor of a handgun used by a kid to shoot his teacher. In the Ninth Circuit, Carter appointee Stephen Reinhardt returned to an earlier antigun opinion and deleted references to the work of Michael Bellesiles, the historian whose Bancroft Prize was revoked because of serious questions about the honesty of his scholarship.
Why are these judicial straws in the wind significant? They mark a trend that began to emerge last year. As Americans have begun to think differently about their personal safety, courts have begun looking at the gun question in a more sober light.
The Florida case turned interesting last November, when a state court jury held, in a suit brought by the widow of the murdered middle-school teacher, that the handgun maker was partially liable for the death of her husband. In addition to laying blame at the feet of another person, who failed to lock up the gun, and the school board, for failing to control the 17-year-old killer, the jury slapped Valor Corp. with $1.2 million in damages.
Though the school board and Valor reached out-of-court settlements before the civil lawsuit, wary eyes were trained on Mr. LaBarga, whose decision would have potentially important implications. Lawyers and legislators across the country have been working to chip away at product-liability protections for gun companies, and by extension, distributors. Here was a test.
Last summer California's Senate voted to make it easier for people to sue manufacturers for negligence, and several unresolved municipal lawsuits are going the same route. When Cincinnati wanted to sue the pants off gun companies, the Ohio Supreme Court allowed the city to go ahead on grounds that gun manufacturers were potentially liable for creating a "public nuisance."
This strain of thinking has made a few inroads lately. Just days before Mr. LaBarga threw out the Valor award, relatives of two sniper victims in Washington filed suit against the Windham, Maine-based maker of the XM15 rifle that was wielded to such deadly effect by John Allen Muhammed and John Lee Malvo.
Gun companies make attractive targets, even if their pockets aren't as deep as those of cigarette makers. And as any trial lawyer worth his Ferragamos will tell you, product liability suits against anything from cigarettes to drugs like Norplant have succeeded without ever going to trial. The political heat regularly forces manufacturers to settle rather than risk a bankrupting verdict, plummeting stock price or knee-jerk congressional action.
But even so, guns are supposed to shoot the things you point them at, and would be no use to legitimate users if they didn't. It's a stretch even for today's wacky juries not to see the disconnect in calling the failure to put a trigger lock on a gun "negligence" when no law or regulation requires you do to so. As Mr. LaBarga noted, a maker can be considered negligent only if its product is defective, and a product cannot be defective if it works the way it was designed to.
The Reinhardt decision to delete the work of Mr. Bellesiles may be of less legal significance but it has more cultural resonance. Though Judge Reinhardt didn't alter his finding in the case, he did feel obliged to erase references to an author whose book gun controllers had embraced because it seemed to demonstrate that Americans' belief in private gun ownership was of recent historic vintage, not a product of our deep past.
Mr. Bellesiles claimed to use colonial records to prove the early Americans, including those who eventually would write the constitution, were not gun owners and couldn't possibly have put the interpretation on the Second Amendment that gun defenders to today. The story fell apart when other scholars tried to recreate Mr. Bellesiles's findings by visiting the same records. Where he found few colonial homes with guns, they found many.
All this comes against a background of renewed interest in guns for self-defense. Gun-club membership is up across the country. And unlike cigarettes, whose users aren't eager to be seen standing up and defending the industry, gun owners have always had a stronger political voice than gun manufacturers. The NRA, after all, is not a trade group--it's group of grass-roots gun owners.
The courts read the election results. Of the municipal lawsuits against firearms manufacturers, Chicago's was dismissed, Detroit's is bogged down, and the grandpappy of them all, the case filed by New Orleans, was torpedoed by Louisiana's own Supreme Court--a decision the U.S. Supreme Court declined to review. Those who hoped or feared the guns were the next tobacco should be beginning to realize it won't be.
Ms. Levey is an assistant features editor of The Wall Street Journal's editorial page. Her column appears on alternate Wednesdays.
Copyright © 2003 Dow Jones & Company, Inc. All Rights Reserved.
