Dennis A. Henigan [Vice President for Law and Policy, Brady Center to Prevent Gun Violence]: "Do the gun lobby's bumper sticker slogans work in the courts? The Ninth Circuit's recent 2-1 decision in Ileto v. Glock, Inc., suggests the answer may be "yes."

The majority found that the federal Protection of Lawful Commerce in Arms Act [PDF file] requires dismissal of the lawsuit against a gun manufacturer brought by the victims of a 2001 Jewish Community Center shooting. After reading the Court's opinion, I was struck by the gap between what Congress said it was doing in enacting that statute, and how the statute was applied by the Ileto majority. I have a special perspective on the issue because, as a lawyer at the Brady Center to Prevent Gun Violence, I have litigated numerous lawsuits against the gun industry (although I was not involved in Ileto). My Brady colleagues and I also were involved in every aspect of the battle in Congress leading to the Commerce in Arms Act.

During the legislative contest, we often heard this analogy from the gun industry: "You can't sue the manufacturer of a firearm, any more than you can sue Budweiser when someone gets involved in a drunk-driving accident." If this means that gun manufacturers should not be liable simply because someone misuses a gun to harm an innocent person, few would disagree. The problem with the analogy is that the lawsuits the industry was complaining about generally did not allege that a gun's harmful misuse by a criminal or other dangerous person is a sufficient reason to hold the manufacturer or seller of a gun legally accountable. Rather, they charged negligent or illegal conduct by manufacturers and sellers that put guns in the hands of dangerous people and enable their misuse. Moreover, the legislative history of the Commerce in Arms Act shows that Congress, in enacting the statute, thought it was barring only lawsuits that were equivalent to holding Budweiser liable simply because "someone gets involved in a drunk-driving accident."

Judge Berzon's opinion, dissenting in part in Ileto, gives an excellent account of the legislative history, showing that Congress was concerned about a narrow class of lawsuits against the gun industry which were based on the principle of vicarious liability under which a gun manufacturer or seller was liable for the wrongful act of the person who did the shooting. Judge Berzon correctly distinguishes vicarious liability from the liability preserved by the Commerce in Arms Act whuch involves liability of manufacturers and sellers for their own conduct, not the conduct of third parties. His opinion cites, for instance, the statement of the Senate sponsor, Senator Larry Craig (R-Id): "[This bill] does not prevent [gun manufacturers and sellers] from being sued for their own misconduct. This bill only stops one extremely narrow category of lawsuits[:] lawsuits that attempt to force the gun industry to pay for the crimes of third parties over whom they have no control." Senator Jeff Sessions (R-Alabama), another key proponent of the bill, said it was directed at suits seeking "to blame…violent, illegal acts by criminals, on manufacturers of guns, because they manufactured the gun…." In other words, liability comparable to holding Budweiser responsible for drunk driving.

In my new book, Lethal Logic: Exploding the Myths that Paralyze American Gun Policy, I cite the Budweiser analogy as one of the simple, effective, but misleading slogans that has functioned to frustrate progress toward curbing the carnage of American gun violence, which takes over 30,000 lives every year. Relying on internal industry documents uncovered in litigation against the industry, as well as the sworn testimony of industry whistleblowers, Lethal Logic describes the irresponsible, and sometimes illegal, conduct of the gun industry that fuels the illegal market and ensures a steady supply of lethal weaponry to criminals.

While lobbying for the Commerce in Arms, the industry assured Congress it was not seeking broad immunity from liability and Congress believed it. It is tragic that some courts, like the Ninth Circuit panel in Ileto, have misread the statute to insulate the gun industry from its own deadly misconduct."