Full text from the October 1995 issue

Pettifoggery and polite gun control

By RONALD N. NEFF

No agency of man can be permanent which is not tireless, and the Permanent Regime's cat's paws for regulating civilian gun ownership are nothing if not tireless.

On May 23, 1995, the Association of Trial Lawyers of America and the Johns Hopkins Center for Gun Policy and Research sponsored a one-day conference, "Guns — A Public Health Approach: Making Changes in Making Guns." Its focus was the regulation of the manufacture of guns. Its approach avoided questions about the Second Amendment and the natural right of self-defense. It "was not about banning guns," according to its sponsors. "That is a political issue debated in other forums."

Rather it was about making guns safer. Toward that end, said the keynote speaker, there is a "special role for lawyers of conscience"; he urged lawyers to "take the lead in championing sane gun laws." (Like that "of conscience," do you? How about that "sane"?)

The model for making guns safer that virtually every speaker referred to is the compulsory installation of safety features in automobiles. Some also likened the effort to making medicine bottles more difficult for children to open. And some speakers just lost sight of a major purpose of gun ownership altogether. Thus, discussing mounted lasers, one said, "The potential difficulty is that a laser will certainly help a user acquire the target ... but the laser cannot identify the target. So it is unclear whether applying laser-aiming devices, particularly to guns used in and around the home, will lead to a decrease in unintentional shootings." Another went so far as to cite a study that demonstrated that guns were deadlier than knives and fists. Without that study, we might never have guessed.

One speaker — Jon Vernick — focused on issues of false advertising. It is fraudulent to suggest that you are safer with a gun in your home than without it, he said, citing studies carried out by Arthur Kellermann and colleagues. The studies, which were discussed in 1992 in the New England Journal of Medicine, deal with gun ownership as a risk factor for homicide and suicide in the home. Vernick and another speaker cited the two Kellermann studies and no others.

While wishing to remain "sensitive to First Amendment issues," Vernick reminded his listeners that the Supreme Court has said that deceptive or unfair commercial speech is not protected by the First Amendment.

Mark Polston, a staff attorney at the Legal Action Project at the Center to Prevent Handgun Violence, explained the thinking behind a lawsuit CPHV has brought in California against Beretta. CPHV's clients are the parents of a 15-year-old killed by a friend who was playing with a Beretta 92 Compact L. CPHV alleges that the Beretta 92 is defective because "it does not include technology that would make the gun fail to fire if it is being handled by an unauthorized user." Though it has an indicator that warns users that there is a round in the chamber, the indicator does not warn "foreseeable users, and it certainly does not warn foreseeable misusers such as adolescents playing with a gun."

Polston argued that technology is available to personalize guns in a way that can prevent unauthorized users from firing them — ranging from a combination locking mechanism that fits on a pistol grip to a magnetic locking mechanism disengaged by a ring worn by the authorized user and containing a chip with magnetic attraction. Sandia Laboratories is working on incorporating fingerprint- or voiceprint-recognition devices. CPHV is hoping that the California jury will agree that such features constitute "available and affordable technologies" that must, by California law, be used, and failure to use which renders a product defective.

In other words, "defective" is being defined, in part, as not  using existing safety technology that is not  mandated by law. Suits can then be filed on the basis of defectiveness. This tack already figures in cases concerning auto manufacture. In January, for example, the Supreme Court allowed a suit to proceed against the Ford Motor Company that concerns the 1988 Escort, which lacked air bags. The case will turn on whether the technology to include air bags "existed" in 1988, and whether, therefore, even in the absence of mandatory safety regulation, Ford was obligated to incorporate air bags in that model.

To be sure, such safety devices will make guns more expensive (just as corresponding devices have made automobiles more expensive), and judicial legislation requiring them will fall hardest on the poor. But lest you think opinion at the conference was mitigated by that consideration — always trotted out when other price increases or welfare programs are being discussed — two speakers directed all their comments against the manufacturers of inexpensive handguns, whom they called "the Ring of Fire." One of the two speakers, the attorney general of Maryland, predicted that courts will begin to regard inexpensive guns as defective. If so, they will be defective in virtue of not being expensive.

The conference's proposal to regulate the production of guns through the court system — bringing suits against manufacturers based on claims of defective products or false advertising — is an example of the "pettifogger enforcement" I discussed in "Polite Totalitarianism," part 4 (TLD, Dec. 1994, pp. 14-15). If successful, such undertakings can only make civilian ownership of guns rarer and more difficult. The conference may not have been about banning guns; but under Polite Totalitarianism it is not necessary to make civilian gun ownership illegal. The idea is to disarm the citizenry through as low-key and socially acceptable a process as can be devised. And surely "sav[ing] thousands of lives each year and avoid[ing] many of the needless tragedies that afflict families in every community in this country" is as respectable a cover as one could desire.

The conference sponsors were not as disingenuous as their eschewing of banning guns suggests; they understand very well the consequences of their ideas, and included them in their findings and recommendations: "3. Reduce the number of handguns produced and sold each year. [And that means reducing the number purchased  each year. — RNN] All constituencies committed to gun safety and injury prevention should continue to support legislation and other public policy efforts aimed at controlling the unrestrained manufacture, sale and advertising of handguns."

My purpose here is not so much to acquaint the reader with the details of policy wonk debates, as merely to look once again through the binoculars over the battlefield that stretches before The Last Ditch. You may not be seeing quite as many frontal assaults on gun ownership as you saw during the first 18 months of the Clinton regime, but do not be deceived. There are lots of end runs around the all-but-useless Second Amendment going on out there. The machinery regulating "safety" and commercial speech is firmly in place. Thirty years ago, we might have thought those regulations were assaults merely on "economic freedoms." They are being mobilized for something more sinister.

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