Governor’s plan on guns is unworkable
Most of the time, guns as indispensable and much-revered tools of hunting or competitive shooting have very little to do with the guns at the center of contemporary public policy such as Governor Andrew M. Cuomo’s war on gun violence in the state’s inner cities.
But, truth be told, they can be the same instrument or at least made by the same manufacturer. On the one hand properly, legally used, on the other gravely and illegally abused. It’s all about the user. As a consequence of this duality, though, seemingly well-intended public policy restrictions can and will affect the legal gun-owning community. Experience tells us that. Think SAFE Act.
Another case in point is the governor’s recently announced centerpiece supposedly designed to take on gun violence. A new law that would allow — encourage — victims or presumably their families to sue gun manufacturers on the basis of public nuisance liability. That is, hold manufacturers financially responsible for the illegal use of their products by third parties including criminals.
Before getting into why this is a really stupid idea and not likely to succeed — that it’s all about politics and not much else anyway — it’s worth noting what would happen if the governor’s stated expectations were to materialize into a full-fledged assault on gun manufacturers, gun shops and other legal retail sources.
New York would be the only state in which gun shops and manufacturers could be sued for the illegal uses of their products, which naturally would in short order affect the number of gun shops and manufacturers willing to do business in the state. Already escalating insurance premiums for sellers would soar out of sight. It wouldn’t take long to trickle down to legal gun owners in terms of higher prices and less availability for guns and ammunition. Out in Ilion, the latest iteration of a once key player in the state’s long tradition of gun-making, Remington, is watching all this closely with a leery eye as it attempts another comeback.
So, why is this law a bad idea? Shifting the blame for gun violence to the maker of the gun from the perps who actually commit the violence is intentionally misdirected, flat-out illogical, and particularly galling to members of the legal gunowning community. One of the bedrock principles of legally using a gun, a core ethic, whether hunting or in self-defense or plinking at targets, is taking absolute responsibility for its use when in your possession. You own where that bullet or shot goes and what it does.
What Cuomo is proposing, or at least stating, is a dodge for the shooter, which is lawyerly twaddle.
Congress thinks so too. In 2005, after gun manufacturers and sellers were swamped by similar lawsuits but also after 2nd amendment gun rights took on new celebrity and importance, Congress passed the Protection of Lawful Commerce in Arms Act giving immunity to gun makers and sellers from liability for the illegal use of their firearms. That’s very much in force today and trumps any state law designed to nullify or work around it.
Which brings us back to our governor’s much-publicized effort to do exactly that. I am indebted to Jonathan Turley, a law professor at George Washington University, for his lucid analysis of the governor’s law that appeared in a column a short while ago in The Hill newspaper. The headline says it all:
“The Illusion of Action: Cuomo’s New Gun Manufacturers Liability Law is a Colossal Misfire.”
Turley writes, “the centerpiece of Cuomo’s plan is a new law to allow victims of gun violence to sue gun manufacturers under a nuisance theory. If it sounds familiar that is because it is painfully familiar. It has failed repeatedly in various states, including New York. It is doubtful Cuomo truly believes that the law will make a significant impact on gun violence. However, that is not the point. The point is the appearance of action, not the ultimate results of such action.”
Polls show the public in New York is getting increasingly nervous about the perception of rising crime in the state. This law and the entire war on gun violence is Cuomo’s attempt at being seen as doing something about it — even if it doesn’t go anywhere.
Turley points out that Cuomo’s rhetoric is distinctly different from the actual law passed in New York. The governor said the law would “reinstate public nuisance liability for gun manufacturers,” which is pointedly what it doesn’t do, since that would be an open challenge to federal law and therefore unlikely to prevail in the courts. What Turley says the law actually attempts is to is magnify an exception to the federal law concerning a narrow band of possible liability pertaining to violations of state and federal statutes related to gun sales and marketing. Which is a far cry from opening the doors for damages brought through the illegal use of firearms by third parties, including criminals.
“It is not the law being pitched to the public,” states
Turley, adding that even the standards the law sets for triggering liability within marketing and sales are ambiguous and vague, and may not pass muster either. Bottom line, in Turley’s opinion, the law will have trouble passing the constitutional test if used broadly as Cuomo says it will, or will have a negligible impact on either gun makers and sellers, or victims looking for relief, if enforced as written.
So probably, nothing to worry about with Cuomo’s vaunted gun law, although of course all this still has to play out in realtime through the legal process. But at least for gun owners, it does seem encouraging.
As does a constitutional challenge to New York’s concealed carry restrictions for sidearms taken out of the home that’s to be argued before the U.S. Supreme Court in November. While it’s a fool’s bet forecasting how this court will rule on anything, this will be the first major 2nd amendment case heard by the new 6-3 conservative majority, and they asked for this case.
Either way, this decision will have national consequences and likely a significant impact on the state’s century-old Sullivan Law, the wellspring of New York’s handgun laws.