UC-Irvine ‘s Erwin Chemerinsky published an article in The National Law Journal nearly three months ago that if drawing considerable review in the wake of the Connecticut school shooting. Chemerinsky points out that the Bush Administration and the Republican Congress allowed the ban on assault weapons to expire in 2004 and then passed a law in 2005 that protected manufacturers of these weapons from civil liability.
Here are some excerpts:
Imagine a product that serves no purpose but to kill people and each year causes many deaths. Surely politicians would compete with each other to pass laws to control it. If nothing else, the manufacturer of such a product, which is foreseeably used to murder people, would be held liable. Not, though, if the product is an assault weapon. The federal law banning assault weapons expired in 2004, and another federal law precludes civil liability for gun manufacturers. It is time to re-enact the Federal Assault Weapons Ban and to repeal a federal law adopted in 2005 that protects gun manufacturers from civil liability.
James Holmes allegedly went into an Aurora, Colo., movie theater with an arsenal that included a semiautomatic assault rifle and 6,000 rounds of ammunition. In a very brief time, he shot 70 people and killed 12. This was facilitated by the semiautomatic weapon, which when fired automatically extracts the spent cartridge casing and loads the next cartridge into the chamber, ready to fire again. If Holmes had used a handgun, far fewer would have been hurt or killed before he was stopped.
This, of course, is just the most recent deadly rampage. In 2011, there was the shooting of Representative Gabrielle Giffords (D-Ariz.) and 18 people in a Tucson, Ariz., parking lot, which killed six. In the past several years, there was the incident in which student Cho Seung-Hui killed 32 at Virginia Tech before killing himself; the murders at Fort Hood, where Army Major Nidal Malik Hasan is accused of killing 13 people in a rampage; and the tragedy in Binghamton, N.Y., where Jiverly Wong opened fire at a New York immigration center and killed 13 people. Professor James Alan Fox of Northeastern University estimates that there are about 20 mass shootings a year in this country.
Semi-automatic weapons — such as the Uzi, the TEC-9, some AK-47s and the Colt AR-15 — have the capacity to kill a large number of people in a short amount of time. In fact, they have no other purpose. Semi-automatic weapons are not used to hunt; they would obliterate the animal. They exist to fire multiple bullets in quick succession, a function that is useful only in war.
In 1994, Congress passed and President Bill Clinton signed the Federal Assault Weapons Ban. The law prohibited individuals from possessing assault weapons, like the AR-15 rifle allegedly used by Holmes. It is a civilian semi-automatic version of the military M-16 and was a “semiautomatic assault weapon” under this law. But in 2004, this law expired and was not renewed. President George W. Bush opposed extension of the law, and the Republican-controlled Congress agreed. Since then, efforts in Congress to reinstate the law have been unsuccessful and have not even come for a vote.
At the very least, gun manufacturers should be held civilly liable for the injuries and deaths that foreseeably result from their products. Traditional principles of products liability should be applied to assault weapons. Beginning around 2000, there was a rise in the number of lawsuits against gun manufacturers. However, in 2005, Bush signed a law that shields gun makers from being sued.
A number of my Republican Facebook friends from Irvine keep harping on the Supreme Court’s ruling on the Second Amendment affirming an individual’s right to own guns. The New Yorker spoke with scholars who studied the Founding Fathers to ascertain what their reaction would be to today’s interpretation of the Second Amendment.
From the New York article:
An important statement of what is generally referred to as the collective-rights interpretation—the idea that what the Second Amendment protects is the people’s collective right to keep and bear arms to form militias for the common defense—is an amicus curiae submitted to the U.S. Supreme Court in the 2008 case of District of Columbia v. Heller, signed by fifteen eminent university professors of early American history, including Pauline Maier, Fred Anderson, and Pulitzer Prizes winners Jack Rakove and Alan Taylor. It concludes,
Historians are often asked what the Founders would think about various aspects of contemporary life. Such questions can be tricky to answer. But as historians of the Revolutionary era we are confident at least of this: that the authors of the Second Amendment would be flabbergasted to learn that in endorsing the republican principle of a well-regulated militia, they were also precluding restrictions on such potentially dangerous property as firearms, which governments had always regulated when there was “real danger of public injury from individuals.”
The different weight the Court gave to these different interpretations is suggested by its decision in Heller. Justice Scalia, writing for the majority, determined that, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia.”
How Heller will be interpreted is as yet unclear. In “Dead or Alive,” a 2008 essay in the Harvard Law Review, Reva B. Siegel instructively situated the decision within the history of originalism and reflected on the tension between conservatives’ championing of gun rights as a social issue and their condemnation of judicial activism. After Waco and Oklahoma City, the insurrectionist argument faded somewhat. But the individual-rights interpretation, as Siegel observed, prevailed not only in the courts but also in public opinion. A 2008 poll found that nearly three-quarters of American adults believe that the Second Amendment protects the right of an individual to own a gun.