Constitutional Opinions: Beware the Attack Lawyers
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabkin Beware the Attack Lawyers Is it legal to hold gun makers liable for gun violence? fter a month of inconclusive A bombing against Serbia, major news...
...The murder rate has fallen by 30 percent over the last five years...
...There is a serious argument that the First Amendment should be applied more rigorously to national polices than to state and local policies...
...New York's new senator, Charles Schumer, has long advocated federal legislation to impose stricter liability on gun manufacturers...
...Conference of Mayors reported, 70 percent of American mayors (in cities over 30,000) were "considering" filing parallel suits...
...There's a possible Internet angle and every time Hollywood makes a movie in which 15o get killed, I think we get closer to a level of responsibility that is compensable...
...The more commonly cited analogy, however, is with class action suits against tobacco companies, where enterprising trial lawyers, allied with state attorneys general, finally pushed the tobacco companies to negotiate a settlement agreement reaching tens of billions of dollars...
...Only Justice O'Connor and Chief Justice Rehnquist found some of the disputed provisions in the Communications Decency Act constitutional...
...The 22 states that now allow citizens to carry concealed weapons have seen a decline in violent crime...
...These matters become even more complicated when cultural influences are factored in...
...The claim is that these products "influenced" the demented boy who did the shooting and the lawsuit will bring justice: "We intend to hurt Hollywood...
...fter a month of inconclusive A bombing against Serbia, major news organizations turned, almost with relief, to a story they could really illuminate—the high school murder rampage in Littleton, Colorado...
...The presiding federal judge, Jack Weinstein of the Eastern District in New York, had previously presided over innovative "mass tort" cases in which he pioneered the notion that manufacturers could be held liable for their market share, even in the absence of any direct link between a particular firm and injury...
...Those who applaud such ventures acknowledge that they amount to activist policy-making by courts—and applaud that, too...
...When Congress tried to prohibit Internet sites from making "indecent" imagery available to minors, a nearly unanimous Supreme Court struck down the scheme in 1997...
...And a private lawsuit has already given hope to the mayors...
...Meanwhile, twice as many children (14 and younger) died from bicycle accidents as from guns in 1997, and four times as many from drowning...
...Too bad...
...These days, the Constitution seems not to apply in foreign affairs...
...Previous lawsuits of this kind haven't succeeded, because courts are very wary of the notion that purveyors of violent44 Twice as many children died from bicycle accidents as from guns in 1997...
...The Washington Post interviewed a "plaintiffs' lawyer" filled with curiosity about the teenage perpetrators: "I'd like to know where they got these weapons and where this fascination with Hitler came from...
...Courts may be overdoing their defense of the First Amendment...
...That does not mean that all controls are pointless, and certain controls on weapons and poisonous culture could have marginal value...
...Unleashing attack lawyers is just another form of instant gratification, hitting back blindly when we don't know what else to do...
...Despite accidents and criminal abuse, he shows, guns provide net social benefits...
...The whole country may have shared Colorado's grief over the Littleton shootings, but it doesn't have to share Colorado's response...
...Some new controls could perhaps help prevent guns from getting into the wrong hands...
...Compared with class action litigation, the legislative process offers some hope that competing risks and concerns can be held in some reasonable balance, reflecting the opinions of the broader public...
...And only 0.2 percent of injuries from violence (according to a survey of hospital admissions) were caused by guns...
...imagery can be held legally responsible for real violence subsequently perpetrated by viewers...
...The American Spectator - June 1999 51...
...But with more than zoo million guns already out there, we shouldn't expect dramatic results...
...It's analogous to Brown v. Board of Ed., where legislators were afraid to do certain things...
...The idea of holding gun manufacturers liable already has considerable momentum...
...Those who think young people are drawn to violence from spiritual emptiness ought to favor voucher programs that make it easier for parents to send children to religious schools...
...As Justice Robert Jackson emphasized and Justice Rehnquist has also noted, the First Amendment begins with the words, "Congress shall make no law...
...Certainly, the lawyers are ready...
...ust before the Littleton tragedy, trial lawyers filed a $13o-million federal lawsuit on behalf of parents of three students killed in a previous high school shooting spree in Paducah, Kentucky...
...Does responsibility increase when such imagery falls into the hands of "impressionable youth...
...Should we really leave them to be decided by grasping trial lawyers, grand-standing city attorneys, and activist judges...
...We intend to hurt the video game industry...
...Hollywood studios and Internet providers alike hate the idea of separate laws in each state...
...Let different states experiment and let's see how different approaches in response to differing local majorities work...
...The lawsuit sought damages against two Internet porn sites (featuring sadistic imagery), companies marketing violent computer games ("Doom," "Quake," and "Mortal Kombat"), and the makers and distributors of the Hollywood film The Basketball Diaries (in which Leonardo DiCaprio guns down his teacher and several classmates...
...So network anchors relocated to Colorado and a grieving nation had the solace of round-the-clock media analysis...
...Politicians offered the usual sanctimonious speeches, but therapeutic bombing was not an available option...
...Last February, he guided a divided jury to a similar outcome, after instructing jurors that they could go after gun manufacturers based on their general pattern of sales control, without having to establish a direct link with the perpetrators of the actual shootings...
...The strained theory behind the suit was that gun manufacturers were responsible for these shootings, even though Philadelphia has severe controls on gun sales, because the gun makers sold a lot of guns in suburbs and surrounding areas, without taking precautions to prevent the guns from ending up in the hands of violent criminals...
...Unlike narcotics, moreover, guns have real value for honest citizens—most of all in helping honest citizens to face the criminals that police can't adequately control (or disarm...
...Here are two modest suggestions for finding a way through these thickets...
...There is no reason why gun controls or culture controls should be uniform nationwide...
...Now he is pleased that courts have acted where Congress failed to act: "The courts are a last resort, but we're getting to a point where we need a last resort...
...They are also, I believe, what the Constitution prescribes...
...It may turn out that the most useful state efforts don't involve controlling outsiders but improving local schools...
...The Second Amendment, too, might be more indulgent of state than federal controls, since it invokes the importance of state militias in its preamble...
...Most violent crimes-71 percent, according to a 1996 survey—do not involve guns at all...
...It was horrible, and here, and endless numbers of local folks were willing to go on camera to talk about it...
...Chicago launched a similar suit soon after...
...A number of reputable studies estimate that there are about 2.5 million episodes a year of "defensive gun use...
...They make sense on policy grounds...
...Strict drug laws do not now prevent kids from getting drugs when they are determined to get them...
...A recent paper by H. Sterling Burnett, published by the National Center for Policy Analysis, does just that...
...At a minimum, gun issues are complex...
...If we want gun dealers to impose tighter restrictions on sales, or movie distributors and Internet sites to restrict access to violent imagery, we ought to tell them so in advance...
...We have a Constitution precisely to restrain such impulses...
...But tobacco does result in hundreds of thousands of deaths each year, while its social benefits are at least disputable...
...As with drugs, controls on the Internet are easily evaded by determined young people...
...Some champions of the Second Amendment may be making excessive claims on that one, too...
...Yes, there are accidents and there are shoot-outs in which the party acting in self-defense ends up dead...
...My second suggestion is due process...
...Apparently a lot of other lawyers thought there was "compensable responsibility" by somebody, somewhere: Parents of the slain victims said that lawyers started calling them the week of the funerals...
...First Amendment concerns so impress some judges that a federal court in Virginia recently struck down a public library's policy of restricting minors from using library computers to gain access to pornographic websites...
...But what to do about this domestic atrocity...
...First, despite the sensational coverage given to particular episodes, we are not experiencing an epidemic of gun violence...
...But in some 3,000 cases a year criminals are killed by citizens acting in self-defense—which is three times more often than by police...
...Contemporary scholarship makes a compelling case for a personal right to possess firearms, but that right should still be subject to reasonable regulation in the interest of public safety...
...Instead, the nation seems to be falling back on...feel-good lawsuits...
...In Hamilton v. Accu-Tek, victims (or relatives of victims) of shootings in Brooklyn claimed compensation from gun manufacturers for negligently allowing their products into the wrong hands...
...They should be even more concerned about class action claims let loose in a capricious national lottery...
...Policy-making through massive class action claims is abusive, given that defendants had no basis to expect they could be held liable for conduct that's now being challenged...
...Early in 1998, Philadelphia Mayor Ed Rendell announced his city would sue major gun manufacturers to recover city expenses for treating gunshot JEREMY RABKIN is a professor of government at Cornell University...
...It's called legislation...
...By the end of 1998, the U.S...
...victims...
...The gun manufacturers are, of course, appealing...
...But we can still try to respect its wisdom at home...
...We have a traditional constitutional mechanism for doing so...
...Even public schools might do more to maintain discipline, making it less likely they'll continue as organizing forums for new "trenchcoat mafias...
...Most of the time this involves little more than scaring off an attacker by 50 The American Spectator • June 1999 showing the gun...
...But your odds improve if you have a gun to use in self-defense: Women facing violent assault were two-and-a-half times more likely to suffer serious injury if they had no firearm compared with those who did...
...We intend to hurt sex porn sites [on the Internet]," one of the lawyers proclaimed...
...More importantly, the harm done by guns must be set against the benefits...
...The first is federalism...
...Guns are different...
Vol. 32 • June 1999 • No. 6
