On the issue of gun safety, the partisan divide has become stark in recent years. The staggering number of mass shootings has pushed most Democrats toward supporting some kind of gun control legislation, while Republicans have become increasingly eager to roll back any kind of regulation to save lives, so long as it profits the gun manufacturers.
Democrats hold no federal power at the moment, but whenever they gain control of Congress and the presidency again, those gun industry profits provide an intriguing opportunity to do something to stem the violence. Lawmakers have the power to make it possible for individuals, cities and states to sue gun manufacturers and hold them liable for injuries or deaths caused by their products.
"This a public health crisis and until we start treating it as a public health crisis we're not going to solve it," Avery Gardiner, the co-president of the Brady Campaign to Prevent Gun Violence, told Salon.
The images of people being rushed to overwhelmed hospitals in the wake of Sunday night's mass shooting in Las Vegas highlighted the staggering social costs of widely available firearms. Congressional Republicans have successfully stifled much federal research into these costs, but in 2015, Mother Jones teamed up with Ted Miller of the Pacific Institute for Research and Evaluation to do some independent data-crunching. What they found was that the United States loses more than $229 billion a year to gun violence, a number that includes health care costs, lost wages and damaged quality of life, along with the costs of imprisoning people who commit acts of gun violence.
That number didn't even include the taxpayer money spent on militarizing police forces with military-grade equipment and training — a trend routinely credited to the fact that American police have to contend with an armed populace that police don't deal with in most other major nations.
Gun manufacturers and customers get the benefits of being able to buy and sell guns, "but they don’t bear any of the costs," explained Kyle Logue, a law professor at the University of Michigan. “That’s borne by whoever winds up getting shot."
In 2005, the gun lobby was able to successfully push through a federal law granting the gun industry immunity from civil lawsuits, the Protection of Lawful Commerce in Arms Act. That law, Logue explained, was a reaction to state attorneys general across the country "getting creative about how to frame their state civil action" by "coming up with negligent marketing theories, public nuisance theories." The idea was that since states have to bear so many of the public health costs from gun violence, the companies who profit off gun violence should be forced to compensate them.
The law successfully stopped these state-level lawsuits, though the Brady Campaign continues to support the still-legal strategy of suing dealers who sell guns illegally, leading to death or injury. That can be helpful, but still drastically limits how much of the social cost of guns can realistically be recouped and does little or nothing to deal with the gun manufacturers themselves.
Logue proposes a two-part solution: First, repeal that 2005 law, passed by a Republican Congress under George W. Bush. Second, pass a bill that would force gun manufacturers to be "responsible for at least some percentage of the harm caused by guns."
This two-step process could allow more litigation but also could help set up something similar to workers compensation funds or even the Superfund program run by the EPA, which uses money directly billed to polluting industries to clean up toxic waste sites.
While Logue doesn't oppose direct regulation of guns, opening up the gun industry for lawsuits or other strategies to recover costs, he argued, has a couple of distinct political advantages. For one thing, it sidesteps the question of whether and how to regulate or ban some categories of firearms, which comes with a whole range of constitutional and political problems.
"It’s just making the social cost associated with guns be borne primarily by the beneficiaries of the gun market, which is people who buy and sell guns," he said. In a sense, it's a market solution: By making the price of a gun reflect its true social cost, that motivates the companies to be more responsible in their marketing and would increase the price of guns enough that there would presumably be fewer of them in circulation.
Another advantage to a liability strategy is flexibility. When legislators pass direct regulations on the gun industry, the industry finds workarounds. Background checks are avoided by directing more gun sales through gun shows or bulk buyers. Regulations on specific gun features create incentives for technological innovation that allows guns to hew to the letter of the law while violating the spirit. (Which is apparently why it was so easy for Stephen Paddock, the Las Vegas shooter, to modify his arsenal of semiautomatic weapons such that they were effectively automatic.)
If a liability system is effectively structured, Logue argued, "it can respond to whatever the changes are in the firearm industry."
Much of the inspiration for a liability-based system comes from the Big Tobacco lawsuits of the 1990s, in which states and people made ill from smoking tried to recoup health care costs by suing the tobacco industry. While that strategy didn't necessarily prevail in the courtroom, it can still be considered a political win, for two reasons. It forced the tobacco industry into a massive settlement with the states, paying billions that largely went to health care costs. But the public relations coup against Big Tobacco was perhaps the bigger win.
Those lawsuits were "successful in getting us to learn how bad the industry was," explained Logue. Using the discovery process, lawyers were able to publicly reveal all sorts of damning information about how cigarettes were marketed and made, which made clear that the industry understood the negative health consequences of smoking and went to considerable effort to conceal it.
The creation of the Consumer Financial Protection Bureau is another similar example. While that system works a little differently than what Logue is suggesting, the fact that there's a federal agency that can hold banks liable for law-breaking has resulted in large-scale exposés of financial fraud, such as last year's Wells Fargo scandal.
Logue is skeptical that similar information about firearms manufacturers would have quite the same effect on the public, because, unlike cigarettes or bad banking practices, guns have been plugged into tribal identity politics that often lead people to reject or ignore politically inconvenient information. Still, these kinds of processes could help reframe the debate not in terms of gun rights, but in terms of corporate profiteering. It's one thing to justify thousands of deaths a year in the name of "freedom," but another thing entirely to do so in the name of buying yachts and mansions for executives at Beretta, Smith & Wesson or their parent companies.
If Democrats are willing to get serious about this issue, they should move toward drafting model legislation aimed at holding gun manufacturers liable for the costs of the mayhem their products cause. If that legislation can be swiftly passed when Democrats are in power again, that will help build a federal and legal infrastructure that can survive future Republican administrations and firmly establish the principle that the gun industry will be held accountable. We may never be able to ban guns in America, but we can make sure those who profit off violence pay a bigger chunk of the price.
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