Quick edit: If this is considered in violation of rule 5, then please delete. I do not wish to bait political arguments and drama.
Edit 2: I would just like to say that I would consider this question answered, or at least as answered as a hypothetical can be. My personal takeaway is that holding weapons manufacturers responsible for gun violence is unrealistic. Regardless of blame and accountability, the guns already exist and will continue to do so. We must carefully consider any and all legislation before we enact it, and especially where firearms are concerned. I hope our politicians and scholars continue working to find compromises that benefit all people. Thank you all for contributing and helping me to better understand the situation of gun violence in America. I truly hope for a better future for the United States and all of humanity. If nothing else, please always treat your fellow man, and your firearm, with the utmost respect. Your fellow man deserves it, and your firearm demands it for the safety of everyone.
First, I’d like to highlight that I understand that, legally speaking, arms manufacturers are not typically accountable for the way their products are used. My question is not “why aren’t they accountable?” but “why SHOULDN’T they be accountable?”
Also important to note that I am asking from an American perspective. Local and national gun violence is something I am constantly exposed to as an American citizen, and the lack of legislation on this violence is something I’ve always been confused by. That is, I’ve always been confused why all effort, energy, and resources seem to go into pursuing those who have used firearms to end human lives that are under the protection of the government, rather than the prevention of the use of firearms to end human lives.
All this leads to my question. If a company designs, manufactures, and distributes implements that primarily exist to end human life, why shouldn’t they be at least partially blamed for the human lives that are ended with those implements?
I can see a basic argument right away: If I purchase a vehicle, an implement designed and advertised to be used for transportation, and use it as a weapon to end human lives, it’d be absurd for the manufacturer to be held legally accountable for my improper use of their implement. However, I can’t quite extend that logic to firearms. Guns were made, by design, to be effective and efficient at the ending of human lives. Using the firearms in the way they were designed to be used is the primary difference for me. If we determine that the extra-judicial ending of human life is a crime of great magnitude, shouldn’t those who facilitate these crimes be held accountable?
TL;DR: To reiterate and rephrase my question, why should those who intentionally make and sell guns for the implied purpose of killing people not be held accountable when those guns are then used to do exactly what they were designed to do?
The question is one of negligence calculus, aka The Hand Formula.
https://en.m.wikipedia.org/wiki/Calculus_of_negligence
I would state the question this way: should a gun maker have a duty to take reasonable steps to ensure the ultimate purchaser will not use it in a crime?
The concept of negligence calculus comes from a case involving what steps a mariner must take to ensure their boat does not breakaway from its mooring and smash the whole marina to all to shit?
The rule was stated:
A good example is the duty of a railroad to protect people at road crossings.
Is it enough to have a policy that conducters blow the whistle? Must the railroad ensure that there are gates, lights, and bells, at every crossing? If it is a blind intersection, must the conducter send the engineer down to the roadway to manually wave off any traffic?
The probability of the train causing an injury depends on how busy the intersection is.
The gravity of train injuries is very serious; I've seen it, they chop you up like a fish.
The burden of blowing a whistle is minimal, if it's a remote crossing that might be an adequate precaution; the burden of installing and inspecting crossing devices such as bells and gates is massive, but again the gravity of injuries resultant from trains is catastrophic.
The evidence a plaintiff puts forth in a civil lawsuit, to a jury of peers, in public, is to say: this is the extent of my injury, these are the circumstances in which I became injured, and this is what the defendant did or did not do to cause the circumstances. The question for the jury is, was the defendant's conduct reasonable?
The thing with guns, not unlike trains, is that second part of the equation: that the nature of resultant injuries are so serious, such as classrooms full of dead kids so blown apart by bullet that it takes DNA identify the bodies, or shopping plazas strewn with dead families who bled out trying to crawl away. You must think of all the injuries, not just the primary victims. The taxpayers of Newtown, Conn. had to build a new elementary school, paying workers' comp. benefits to town employees spouses and kids that could go on for decades. Hundreds of millions of dollars in damages.
The burden of prevention could be comparatively minimal. Doing a private background check on every purchaser is minimal. Insurance companies do it for every policy they write and every claim they adjust. And with data analytics it is easier than ever. Family status, work status, gun and ammo buying habits are apparently the major predictors of whether someone is likely to commit a serious gun crime. Here's another example: credit scores are apparently a better predictor of driving risk than driving history!
These questions of risk can be analyzed and can be apportioned.
In my view, gun owners and makers should be liable in tort for damages caused by their weapons. This is a matter of the intended use of the product and the privity of contract between the manufacturer and the end purchaser, no different than product liability law. People injured by guns should be able to bring the manufacturer before a civil jury and say: these are my injuries, these were the circumstances in which they happened, these are the steps the manufacturer took or did not take to prevent it, and let a jury decide if the steps were reasonable based on the probability that the harm would result and the extent of the burden of avoiding it.
It would be a lot of risk to manufacturers. If found liable, they would be able to sue the end user for contribution, just as in a product liability case; that's called subrogation.
You can get gun insurance right now but it's not required, which makes gun owners self insured. Gun makers could get business liability insurance, too; I think most of them self insure these risks, now, though, because they are immune from such lawsuits, that's why Remington went bankrupt after the suit against it for Sandy Hook went forward, and it was non or under insured.
If end users were required to carry insurance, the risk of damages is on those insurers, which it bear voluntarily in exchange for premiums. This relieves the manufacturers, the end users, and the public. Right now, the communities bear the entirety of the risk, gun owners can buy whatever guns they want, however many they want, and when they're mental facilities eventually decline to the point of the violent instability, they have no responsibility beyond their net worth.
And, as a matter of principal, even right now, nobody can claim to be a responsible gun owner if they are non or underinsured for damages caused by their gun.
Fascinating! Thank you for this contribution and sourcing further reading material. I just read a bit into the Remington / Sandy Hook lawsuit you mentioned. Despite many opinions posted here suggesting that it’s impossible and/or unethical to blame the manufacturers, there’s a clear case of a civil court recognizing such damages.
This was an interesting post to read. I do think the ship captain and railroad comparisons are not close enough to gun manufacturers. In the ship analogy it would be the shipwright OP is asking about.
Glad you enjoyed. I don't mean to suggest they are the same, just illustrate the the concept of a defendant's general duty to prevent others from being injured as a result of their conduct. It's a function of the gravity and probability of harm.
Explosives manufacturers might be a better example. They are held strictly liable for any fuckups, so they need to make sure the people they are selling to aren't going to fuck up. Compliance audits up the yin.
Gun vendors are the close example. And they are exposed to liability, which is why big retailers have been dropping weaponry from their shelve.
It’s true explosives manufacturers need to deal only with licensed wholesalers, because it is a regulated product. But as long as they do that, they should not be liable if the wholesaler vends to unlicensed end customers or terrorists or whatever. That would fall on the wholesaler or retailer.
Each party is responsible for the link in the chain which they actually control.
If a gun was found to be sold in violation of the rules and then used for a crime, yes the retailer is liable. But not the manufacturer.
The opioid manufacturers were found liable.
Asbestos manufacturers were found liable.
Those are good examples. Here’s what killed them:
The opioid makers didn’t just manufacture it, they marketed it aggressively and actively downplayed the risks.
Similarly, asbestos manufacturers sold a product they knew caused cancer in its normal usage without adequately disclosing that.
Could make the same arguments about guns though my brother.
Remington went bankrupt because they got sued for aggressively marketing their guns to incel and meal team six types. They knew they were marketing, using fear, to weak and unstable people. What did they think was going to be the result?
As to the asbestos manufacturer comparison, gun makers sell products without adequately explaining to the public the risk to life, for example, they market weapons for home defense, and perpetuate the myth that a gun in the home makes the home safer, despite full knowledge that having a gun in the home makes the homeowner exponentially more likely to be killed by their own weapon. I think they should put photos of children's shot up bodies right on the guns at the point of sale, as with cigarettes. That's how we end up with a segment of a population that wants every person to have a gun, for the idiotic and false purpose of making people safer.
Further, gun makers are marketing a product as "safe when used safely" when in fact they know it is not safe. They know that their customers who are buying these products are human beings who are frail and constantly changing, and that part of the human condition is inevitably losing your faculties, and that their products are likely to be used in an unsafe way.
Regarding my last point here, about the intended usage, manufacturers are liable for both intended and unintended uses of their products. What matters is the foreseeability of the usage. A good example here is ladder manufacturers. The instructions are crystal clear about how to safely use a ladder. But ladder manufacturers know for certain that people will inevitably lean them up against their house in the wrong way or fail to make sure the ground is safe or use them even if they're not completely stable, they know people will stand on the top rung. I've done it. If the ladder manufacturers made a ladder that would crumple the moment it lost stability or tilted, or if the top rung buckled instantly under, say, 150 lbs, they are be liable for a defective product even though the injuries were caused by a consumer's incorrect usage. Did the manufacturer do enough in the making and selling of the product to protect the public from injuries caused by untinetend but yet completely foreseeable harms, not even to the direct purchaser of the ladder, but also as to people who might be walking by the guy on the ladder? What did the maker think would happen?
Many good points. I’ll think on this further.
But: manufacturers don't generally sell direct to the consumer, they sell to stores. Doesn't your argument say that it's the stores who should be liable, not the manufacturers?
Nope. In products liability cases, everyone in the chain is liable.
What you're talking about is the general law of privity, that says you cannot sue for negligent performance of a contract a non party to the contract.
Products liability is an exception to privity, especially modernly.
Gun makers would be liable under the normal rules of common law negligence and public nuisance, they are only immune because Congress passed a statutory exemption.
A good comparison here is the explosives industry. The product is so inherently dangerous and the consequences of negligence so serious, that the common law imposes strict liability. This was also true of people who impound a natural water course on their property. In each case, it it the general risk of serious injury to the public at large that justified strict liability. This is the doctrine of ultra hazardous activities. When Congress passed the exemption, it was a direct response to law review articles and a couple of lower court decisions finding that the manufacture and sale of high powered weapons to regular people fit the definition of ultrahazardous for purposes and could be held strictly liabile.
https://www.law.cornell.edu/wex/ultrahazardous_activity