UCI’s Erwin Chemerinsky: Congress should repeal law protecting gun makers from liability



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.

  14 comments for “UCI’s Erwin Chemerinsky: Congress should repeal law protecting gun makers from liability

  1. junior
    December 19, 2012 at 11:52 am

    “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.”

    Okay — let’s have the conversation. However, let’s also stick to facts. No one can carry 6,000 rounds of ammo.

  2. junior
    December 19, 2012 at 12:23 pm

    “.. the authors of the Second Amendment would be flabbergasted ..”

    So now the gun elimination/prohibitionists can read the minds of people who have been dead for over 200 years ….. amazing!

    • December 19, 2012 at 3:00 pm

      The Tea Party has no problem connecting the dots to Ronald Reagan

      • junior
        December 19, 2012 at 7:33 pm

        But the TP would cite facts and quotes – they didn’t do that.

  3. junior
    December 19, 2012 at 7:41 pm

    Gun makers are liable for their product – if some one dies or is injured from a manufacturing defect of a firearm the gun maker is liable for that. They would be liable for irresponsible advertising of their product. They are not legally responsible for what others do with their product – and that is how it should be.

  4. junior
    December 19, 2012 at 7:44 pm

    How did Erwin do? I suspect that he would do better in a debate than a diatribe.

  5. sherie grant
    December 23, 2012 at 8:36 am

    Makinga company hold liability for how a consumer uses a product is so clearly wrong, I just shake my head in disbelief at our so-called experts refusal to allow Americans to grow up. All the handwringing makes me want go by stock in hand lotion companies. So, I guess, McDonalds should be held responsible if some nitwit spills hot coffee in their lap. I mean, who knew hot liquid could scald?But THAT scenario would just be ridiculous, wouldn’t it?

    • TeaBags
      December 27, 2012 at 10:18 pm

      If I bought coffee that was knowingly sold at scolding hot temperatures and was burned by it, I might want the maker of the coffee to accept responsibility for their wrongdoing. Coffee is hot, we all know this. But we also spill things sometimes. I shouldnt have to worry about 3rd degree burns and having to get skin grafts if I happen to spill my coffee.
      Phil is right. She just asked McDonalds to cover what her insurance wouldn’t. Thats not unreasonable to me. But most wouldn’t know that because they don’t know the facts.

  6. Phil
    December 24, 2012 at 12:48 am

    This law should be repealed for one very good reason. Courts rule on tort reform and consumer cases. Occasionally these cases may even go to the supreme court. This did not happen in the case of gun manufacturers. It’s essentially an area of law which has been hijacked from the courts for political expediency. We all have our views on guns and the law and liability. This law basically says no, none of you have any right to even contest this in court. If you think it’s ludicrous for someone to sue a company when its product is being used in the manner it’s intended (but illegally) that’s fine. But do you really think the person harmed should not even have a right to his day in court?
    Is the hot coffee from Mcdonalds ludicrous? Maybe. But should Mcdonald’s have a law passed preventing you from suing them even if in fact the coffee really was scalding hot and you really did get burnt? Don’t you think you should be able to have your case heard and let a jury or judge listen to the merits?
    (The Mcdonald’s coffee case litigant was a 79 year old woman who had to get skin grafts over 6% of her body. She initially wanted $20,000 for medical costs. McD offered $800. There’s a documentary called Hot Coffee you can watch all about it).

    • junior
      December 24, 2012 at 7:41 am

      “But do you really think the person harmed should not even have a right to his day in court?”

      That would be the tool attorneys would use to litigate gun makers out of business.

  7. January 14, 2013 at 8:46 am

    If you want the victims of gun crime to be able to sue the gun makers for damages, then let us also allow the victims of drunk driving accidents to sue the car makers and distilleries as well. While we are at it, revoke the special protection granted to vaccine makers that was passed as part of the Homeland Security Act so that people who are actually harmed by poorly made vaccines can sue the pharmaceutical companies. And, given that at least 90% of these mass shootings were committed by people either on or withdrawing from prescription anti-depressants, the victims of those shootings should be allowed to sue the pharmaceutical companies as well. Let’s sue the makers of kitchen cutlery for every stabbing death. Let’s sue the makers of sporting equipment for every victim beaten to death with a baseball bat, and tool companies for making the hammers used on bludgeoning deaths as well. The family of everyone who dies by electrocution should be allowed to sue the electric company. The family of everyone who dies in a fall should be allowed to sue the makers of ladders and staircases. The family of everyone who commits suicide by hanging should be allowed to sue the rope companies.

    • January 14, 2013 at 10:52 am

      Michael —
      Certain types of drugs and knives are illegal. You can sue a bar that continues to serve obvious drunk patrons. If there’s a design flaw in how stairs were constructed, builders can be held liable. If you are a hunter or need a pistol for personal protection, none of use have a problem with this. But please provide a defense on why anyone needs an assault rifle which only has the purpose of killing as many people has possible as quickly as possible?

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