JURIST Guest Columnist Allen Rostron of the University of Missouri-Kansas City School of Law says that new federal legislation immunizing gun makers from tort liability might protect them, but not the innocent people who are so often victims of gun crime…

Americans have always cherished certain ideals about our justice system. You may win or you may lose, but you are entitled to have your day in court.

Last week, President Bush created a significant exception to that principle when he signed the “Protection of Lawful Commerce in Arms Act,” a federal law that gives the gun industry a broad, nationwide immunity from legal responsibility for its actions. If the legislation survives constitutional challenges, gun makers and dealers will enjoy a level of protection from tort liability shared by no other industry.

The NRA, gun companies, and their allies have been pushing hard for this immunity law ever since Bush took office in 2001, and the only real surprise about its enactment is that it took so long. Supporters of the legislation insist that imposing liability on gun makers is an absurd notion akin to saying that manufacturers of pens should be blamed when people write bad checks.

The statute generally bars claims brought against manufacturers, sellers, or trade associations concerning harm resulting from illegal misuse of a firearm or ammunition. In other words, if Beretta carelessly distributes a firearm in a way that makes it easy for a criminal to obtain it, Beretta will have no liability to the victims of murders, assaults, robberies, or other crimes committed with the gun.

The new law contains exceptions protecting several narrow categories of claims. For example, a person may be held liable for knowingly selling a gun in violation of federal or state law or negligently entrusting a gun to someone the seller knows or reasonably should know is likely to use it in a harmful manner. While those exceptions will preserve some tort claims against retail gun dealers, they have little relevance to the liability of manufacturers who sell their products through distributors and dealers rather than directly to the public. None of the tort claims brought against gun manufacturers in recent years would fit within the exceptions.

The immunity legislation forced many of its proponents to take positions contrary to their usual ideological inclinations. Conservatives on Capitol Hill and in the White House supported the law despite the fact that it relies on a very broad view of Congress’s authority under the Commerce Clause to impose nationwide regulations and to trump the public policy prerogatives of state governments.

The law’s backers also emphasized that thirty-three states had already enacted statutes giving gun makers varying amounts of protection from tort liability. Rather than seeing that state-by-state decision-making as an illustration of federalism’s virtues, the new law’s supporters insisted that a single federal resolution of the issue had to be forced on every state for the sake of nationwide uniformity.

During the debates over the bill, members of Congress repeatedly declared that firearm manufacturers should not be held liable every time a violent criminal misuses a gun. Public opinion polls indicate that the vast majority of Americans agree with that proposition. I spent several years helping to bring lawsuits against gun makers and I agree completely that a gun manufacturer should not be liable every time someone gets shot. The real issue, missed by those legislators and pollsters, is whether a gun manufacturer should be liable when it distributes or designs guns in unnecessarily and unreasonably dangerous ways and creates risks above and beyond those inherent in the sale of firearms.

The lawsuits brought in recent years have targeted what virtually anyone would regard as egregious negligence. For example, in the lawsuit arising from the sniper shootings by John Allen Muhammad and John Lee Malvo that terrorized the Washington D.C. area in the fall of 2002, a manufacturer and dealer agreed to pay more than $2.5 million to settle claims brought by victims of the shooting and their families. The dealer’s store security was so inadequate that it enabled Malvo, a juvenile, to pick up a Bushmaster assault rifle and simply walk out the door without paying for it. Audits of inventory, conducted by law enforcement both before and after Malvo’s theft, revealed hundreds of other firearms missing from the store. Despite being aware of the dealer’s irresponsible behavior and appalling track record, the rifle manufacturer insisted that the dealer was a “good customer” through which it was happy to distribute its products.

In another case, a Massachusetts gun maker, Kahr Arms, did not conduct background checks on its employees, did not test them for drug use, and had no metal detectors, x-ray machines, security cameras, or even security guards to prevent employee theft from its factory. An employee with a criminal record and a long history of drug addiction took advantage of the absence of security measures, stealing guns from the factory and reselling them to criminals to support his drug habit. One of the guns wound up being used in a shooting outside a night club and killing an innocent bystander. Even some of the nation’s most ardent gun rights activists have acknowledged that the new federal immunity legislation goes too far in exempting manufacturers from liability in this situation.

Lawsuits have uncovered many other similarly disturbing stories, as well as striking revelations about attitudes within the gun industry. Robert Ricker worked for nearly twenty years as a lawyer and lobbyist for the NRA and the largest gun industry trade association. In a sworn statement obtained in litigation, he acknowledged that gun manufacturers’ distribution systems encourage and reward illegal activity by corrupt dealers and distributors. When was the last time you heard anyone say something like that about the pen industry?

Ricker described how tort litigation might finally overcome the industry’s resistance to reforms that would reduce illegal access to guns. “Leaders in the industry have long known that greater industry action to prevent illegal transactions is possible,” Ricker stated, but “until faced with a serious threat of civil liability for past conduct, leaders in the industry have consistently resisted taking constructive voluntary action to prevent firearms from ending up in the illegal gun market and have sought to silence others within the industry who have advocated reform.”

The immunity bestowed on the gun manufacturers and dealers by the new statute eliminates that valuable threat of civil liability. Congress and President Bush have given the industry the special immunity it desperately wanted, but innocent people will bear the consequences of this misguided effort to reduce the gun industry’s incentives to conduct business in safe, reasonable, and responsible ways.

Allen Rostron is an Associate Professor at the University of Missouri—Kansas City School of Law and a former staff attorney for the Brady Center to Prevent Gun Violence.