Activism on guns? Judges resist urge
Published November 21, 2004
Judges are often accused of "activism"--a desire to extend their reach from interpreting the law and resolving cases to making policy on matters that are none of their darn business. So they deserve credit when they resist invitations to override democracy. That's what the Illinois Supreme Court did by a unanimous vote Thursday, in a decision with repercussions beyond our borders.
The cases involved lawsuits against gun dealers and manufacturers who offer weaponry in Illinois. The City of Chicago has a strict ban on handgun ownership, but guns may be sold in neighboring suburbs, even to Chicago residents. Some of those guns end up being used to kill people in Chicago.
Unhappy about his inability to expand his control of the city to areas beyond, Mayor Richard M. Daley turned to the courts for relief. Along with the families of several murder victims, the city filed a lawsuit accusing the industry of creating a "public nuisance" merely by selling legal products to people who are legally entitled to buy them. They demanded that the gunmakers and sellers pay $433 million to cover the costs of gun violence and stop doing business as they have done.
This was a novel theory, but not a novel approach. Several years ago, taking a page from the anti-tobacco movement, gun opponents decided that if they couldn't legislate, they could litigate. They filed a host of lawsuits holding gunmakers and gun dealers responsible for every unwanted consequence of firearm use.
The litigation strategy had two alluring possibilities for gun-control supporters.
The first was that it might induce some court to punish the industry for doing what the law allows it to do--thus overriding the misguided decisions of legislators.
The second was that even if the lawsuits failed, they would impose legal costs that would drive gun companies out of business.
The theory behind them, of course, was always thoroughly bogus. The lawsuits insist gunmakers have a duty not to supply arms to dealers who sell too many of them, and that dealers have a duty to limit their transactions to keep guns from ending up in criminal hands. As the complaint alleged, the retailers "sell firearms even when they know or should know that the firearms will be used or possessed illegally in Chicago."
Not many businesses survive by turning away customers who have a right to buy. Apparently gun sellers are supposed to be mind readers. "Should know"? Maybe a Ford dealer "should know" that an 18-year-old male who is lusting after a Mustang will drive well over the speed limit. Does that mean he should be liable when the youngster crashes?
The manufacturers were faulted for making guns with features that supposedly appeal to thugs--such as concealability and resistance to fingerprints. But some people are legally permitted to carry concealed handguns, which means they need concealable ones. And miniaturization takes place in other products not used in crime. Even many law-abiding shooters like small handguns better than big ones, just as teenagers prefer iPods to boom boxes.
Fingerprint-resistant surfaces are popular among law-abiding sportsmen, because traditional shiny finishes are more visible to prey and more prone to corrosion. This innovation is no favor to crooks because it doesn't actually prevent police from getting prints off a murder weapon.
Almost every court that has been presented with this kind of suit has rejected it, for the same reasons offered by the Illinois Supreme Court: "We have no indication from the legislature that it would be inclined to impose public nuisance liability for the manufacture and sale of a product that may be possessed legally by some persons, in some parts of the state. ... Any change of this magnitude in the law affecting a highly regulated industry must be the work of the legislature, brought about by the political process, not the work of the courts."
But gun-control advocates are free to keep filing dubious lawsuits elsewhere. That's why a bill in Congress to shield gunmakers and dealers from a vast expansion of liability deserves passage. Otherwise, as Overlawyered.com editor Walter Olson warns, "There is a danger they will win all the way to bankruptcy."
In the meantime, we can be grateful that one court after another has recognized that any complaints about our method of regulating guns should be addressed to the people and their elected representatives. The refreshing message from the bench is: Don't tell it to the judge.
