Dec 182012
 
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Repeal would let victims sue gun makers out of business.

by Penney Kome

On December 14, a man armed with several guns smashed a window and entered an elementary school in Newtown, Connecticut — where he promptly started shooting. By the time he finished, six adults were dead and 20 young children were dead or dying.

On the very same day, another man entered an elementary school in China, armed with a knife, and attacked young children there. By the time he was restrained, 23 children had been wounded – two severely – but none died. 

The contrast couldn't be clearer. Contrary to what gun advocates often say – that “Guns don’t kill people, people kill people” – guns do kill people. A desperate person with a gun – usually several guns – is a thousand times more dangerous than a desperate person with almost any other kind of weapon. And these incidents may provide proof to shut down the weapons dealers that profit from Americans’ addiction to guns.

(Another gun myth died in Connecticut that day: the myth that people who know how to use weapons are safe from them. The very first victim, Nancy Lanza, was a gun enthusiast. She had the guns to protect herself and knew how to use them. But she died with four bullets to the head when someone turned her own weapons against her.)

What separates America from other Western, industrialized nations is not our overall rate of violence, but our rates of lethal violence – which can be directly traced to gun availability.

“In 2009 alone, more than 31,000 Americans died by gunfire,” according to the Violence Policy Centre: “18,735 in firearm suicides, 11,493 in firearm homicides, 554 in unintentional shootings, and 232 in firearm deaths of unknown intent… What separates America from other Western, industrialized nations is not our overall rate of violence, but our rates of lethal violence — which can be directly traced to gun availability.” 

On average, almost every US resident owns a gun — but averages can be deceiving. A large fraction of US households own multiple guns, says the Federation of American Scientists, citing Centers for Disease Control statistics: “…in 1994, 44 million people, approximately 35 percent of households, owned 192 million firearms, 65 million of which were handguns…  By 2007, the number of firearms had increased to approximately 294 million: 106 million handguns, 105 million rifles, and 83 million shotguns…”  

Not surprisingly, gun manufacturing is big business in the US. The 2011 Alcohol Tobacco and Firearms Report Firearms commerce in the United States reported 5.5 million guns manufactured domestically that year, plus 2.8 million weapons imported, with fewer than 200,000 weapons exported.  A Forbes magazine article titled The NRA Industrial Complex estimates the industry’s "direct economic impact" at $13.6 billion in 2011, double what it was in 2008, when Barack Obama was elected president.

"The economic growth America's firearms and ammunition industry has experienced over the years has been nothing short of remarkable," according to the National Shooting Sports Foundation. "Companies in the United States that manufacture, distribute and sell firearms, ammunition and hunting equipment employ as many as 98,752 people in the country and generate an additional 110,998 jobs in supplier and ancillary industries….These are good jobs, paying an average of $46,858 in wages and benefits," at a time when 13 million Americans are out of work. 

"…In fact, in 2012 the firearms and ammunition industry was responsible for as much as $31.84 billion in total economic activity in the country," says the NSSF website.

A brief note on the site acknowledges the tragedy in Newtown and declines to make any comments for media: "Out of respect for the families, the community and the ongoing police investigation, it would be inappropriate to comment or participate in media requests at this time." Right below that is a promotion for the January 15 Shot Show in Las Vegas, which describes itself as a trade show "for all professionals involved with the shooting sports, hunting and law enforcement industries. It is the world's premier exposition of combined firearms, ammunition, law enforcement, cutlery, outdoor apparel, optics and related products and services."  

Guns are more than a market in the US. They're practically a religion. Guns rights advocates cite the US Constitution Second Amendment guarantee of the "right to bear arms" as a sacred trust, which they zealously promote and protect. Up until now, the Second Amendment argument almost automatically trumped proposals for federal gun control — including the ban on automatic weapons. Even when state and local governments do pass gun control legislation, courts have struck down most laws due to Second Amendment challenges.

Even when state and local governments do pass gun control legislation, courts have struck down most laws due to Second Amendment challenges.

In 2010, for example, the US Supreme Court struck down the city of Chicago’s 28-year-old ban on handguns. That year, National Public Radio reported, almost 700 Chicago children were wounded by gunfire and 66 died. More recently, the federal appeals court tossed out Illinois’ ban on concealed weapons.

The US is awash with guns — rifles, handguns, shotguns and assault rifles — yet the courts uphold the manufacturers' commercial rights over innocent bystanders' human rights. And the US has the highest gunfire mortality in the developed world  — thousands of times higher than other developed nations, which have tight restrictions on firearms. As Newtown discovered, any place in the US can become a war zone, instantly.

In fact, wrote US Senator Frank Lautenberg, in a July 30 op-ed article posted on NorthJersey.com, "Guns have murdered more Americans here at home in recent years than have died on the battlefields of Iraq and Afghanistan. In support of the two wars, more than 6,500 American soldiers have lost their lives. During the same period, however, guns have been used to murder about 100,000 people on American soil."

And in this corner, the people who promote those weapons are profiting handsomely, without any fear of accountability, because they are doubly shielded. The Forbes article cites Bloomberg news on the National Rifle Association's budget ($200 million) and notes that “Over 50 firearms-related companies have given at least $14.8 million to NRA according to its list for a donor program that began in 2005.

"That was the year NRA lobbyists helped get a federal law passed that limits liability claims against gun makers. Former NRA President Sandy Froman wrote that it 'saved the American gun industry from bankruptcy.'”

Cities, led by New Orleans, had sought damages from such companies for health care costs and other expenses associated with gun violence.

Business Week reported the same thing: “In 2005, NRA lobbyists helped pass a law [HR 1036] limiting liability claims against gun makers. Cities, led by New Orleans, had sought damages from such companies for health care costs and other expenses associated with gun violence. The Protection of Lawful Commerce in Arms Act helped end the suits, according to Mike Fifer, the CEO of Sturm Ruger [gun makers].

“The law, ‘which is one of the cornerstone achievements of the ILA (Institute for Legislative Action), is probably the only reason we have a US firearms industry anymore,’ Fifer told an NRA interviewer in May."

In short, the very lucrative weapons industry was driven to the financial brink in 2005 by victims' lawsuits. Beseiged by class action suits, the industry squeaked through only because its powerful lobbying arm, the NRA, finally persuaded Congress to shield gun makers from all liability lawsuits, including nullifying cases already before the courts. 

Civil suits can be a very powerful option in the US system of checks and balances.

Civil suits can be a very powerful option in the US system of checks and balances. Consider the 1998 tobacco settlement for $206 billion over 25 years. CNBC named this case the #1 class action suit in US history, and described the strategy that plaintiffs pursued:

“Each individual state, represented by that state’s Attorney General, filed suit against each of the top six tobacco companies in state court. To settle the individual suits, tobacco companies Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, Philip Morris Incorporated, RJ Reynolds Tobacco Company, Commonwealth Tobacco, and Liggett & Myers entered into a joint settlement.

“The individual lawsuits were filed under the different states’ consumer protection and anti-trust laws for the recovery of smoking-related health care costs covered by each state under their Medicare/Medicaid programs, and to enforce laws designed to reduce smoking by those less than 18 years of age.

“The master settlement agreement released the tobacco companies from further litigation in state courts.”

The results? Cigarets are covered instead of being displayed attractively. Cigaret ads are off the TV and out of the magazines. From being the majority of the population, in most places, smokers are now a minority. Tobacco companies must diversify or die.

International litigation on gun sales may be impending. Two years ago the president of Mexico announced that his government was investigating ways to sue US gunmakers in order to stop US weapons flooding over the border. CBS reported that:

On November 5, 2010 President Felipe Calderon expressed his frustration to CBS News correspondent Peter Greenberg: ‘We seized more than 90,000 weapons…I am talking like 50,000 assault weapons, AR-15 machine guns, more than 8,000 grenades and almost 10 million bullets. Amazing figures and according to all those cases, the ones we are able to track, most of these are American weapons.

According to sources, investigators will obtain makes and serial numbers of guns seized by Mexican authorities and trace them to their US distributors and manufacturers…

The law did not eliminate all civil liability against the gun industry. For instance, it left room for lawsuits against gun dealers or manufacturers that knowingly violate gun-control laws, like the Brady Act.

The Protection of Lawful Commerce in Arms Act still stands as a barrier to legal action, although international trade treaties may come into play too. And the law has already been challenged, in Alaska and in New York.  According to Reuters, “The law did not eliminate all civil liability against the gun industry. For instance, it left room for lawsuits against gun dealers or manufacturers that knowingly violate gun-control laws, like the Brady Act, which requires licensed firearms dealers to conduct background checks on buyers.”

Obtaining true federal gun control may be extremely difficult for President Obama’s administration. The National Rifle Association contributed nearly $20 million in total to both Republican and Democratic Congressional campaigns in 2012 (as well as more than $2.5 million in lobbying in 2011). The Republicans retain a majority in the House. Some Democrats have also rejected gun control, on Second Amendment grounds. The African-American and low-income children who are shot in Chicago and other urban settings tend not to attract the same kind of media attention or public outrage as when tragedy strikes a community like Newtown.

Many Americans believe that guns make them safe, even though the opposite is true statistically — twice as many gun owners die by gunfire than people who don’t own guns. Even in the aftermath of the horrific slaughter of innocents, Americans may balk at the idea of giving up their weapons — and the gun industry would continue manufacturing or importing its products, if only for export to places like Mexico.

Although Congressional conservatives like West Virginia Senator Joe Manchin are realizing the error of their ways, selling gun control might be challenging, much less investing the time and effort required for seeking to amend the Second Amendment.

However, the idea of overturning the Protection of Lawful Commerce in Arms Act might be easier to sell to a libertarian crowd. After all, that's the free market system, isn't it? With a little luck, the legal network that took on the tobacco issue and was nipping at gun makers' heels in 2005 could be re-activated fairly quickly.

Gun makers and the NRA would be put in the very awkward position of having to defend – not just the right to sell their product – but the right to sell deadly force products that turn disturbed people’s tantrums into killing sprees.

Moreover, the San Francisco Guardian recently reported that one company has been buying up all the US gun makers under the umbrella of the Freedom Group, owned by Cereberus Capital. Having one major defendant might simplify litigation. Indeed, recent reports say Cereberus is trying to sell the Freedom Group, if it can only find a buyer.

Demonstrably, guns do kill people — even 6, 7, and 8 year old people. The tobacco class action lawsuit showed that all levels of government can work together to hold accountable the manufacturers of dangerous products. Without The Protection of Lawful Commerce in Arms Act, the US arms trade would collapse under the weight of lawsuits launched by its victims.

If the administration has one chance to protect the US from rampant gun violence, SG humbly suggests that repealing the gun makers' shield law is probably the most effective change they can make. We have started a petition to that effect at Change.org    You can sign the petition by clicking here.

About Penney Kome


Penney Kome is an award-winning author and journalist who has published six books with major publishers. She is also the Editor of Straight Goods. She is co-editor with Patrick Crean of Peace: A Dream Unfolding (1986, Sierra Club Books). She started marching against the atomic bomb when the placards were taller than she was, and she emigrated from the US to Canada in protest against the war in Vietnam.

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