Real gun reform without Congress: Lawsuits demolish the “good guy with a gun”

Second Amendment

Daniel “Bud” Williams was a 16-year-old high school basketball star shooting hoops outside his home in Buffalo, New York, when he was severely wounded in a drive-by shooting on Aug. 16, 2003 — a case of mistaken identity. More than 17 years later, just before Thanksgiving, he finally got the last full measure of justice, as Brady United announced a historic settlement with the gun distributor responsible for the gun that shot him — a “Saturday Night Special” Hi-Point 9mm semi-automatic pistol, one of 87 sold in a single illegal transaction. 

It was just one of several recent gun safety developments in which the gun industry and NRA rhetoric of “protecting Second Amendment rights” for “law-abiding gun owners” — for “good guys with a gun” to “stop a bad guy with a gun” — is diametrically opposed to the facts of the case. Instead, these cases, including the first to target untraceable “ghost guns,” point the way toward common sense, common-ground policies that gun owners themselves substantially support. 

In the Williams case, the distributor, a company called MKS, “agreed to significant reforms in distribution of guns, which is unprecedented,” Brady chief counsel Jonathan Lowy told Salon. 

“I’ve been litigating gun liability cases with Brady for 23-plus years now, and the position of gun manufacturers and gun distributors has always been, our only obligation is to sell a gun to someone legally,” Lowy explained. “In the settlement, MKS agreed to actually pay attention to its downstream sales, to take some action so that downstream dealers that it supplied would sell in a responsible manner. That’s a huge step forward.”

It’s also a huge step for the example it sets for others in the industry, and as a possible model for how regulations could be significantly strengthened to crack down on illegal gun trafficking — the kinds of regulations that NRA members themselves strongly support, in contrast to the industry-connected organization. As with the Day One Agenda I wrote about last weekend, no congressional permission is needed. President Joe Biden could dramatically improve gun safety simply by making this model of responsibility mandatory for all distributors.

It’s also a huge step in confirming that the Protection of Lawful Commerce in Arms Act (PLCAA), passed in 2005, does not shield the gun industry from all legal responsibility, despite widespread belief to the contrary. 

Bud Williams had nothing to do with gangs. He had nothing to do with guns. And he certainly had nothing to do with interstate commerce in guns — the constitutional foundation for PLCAA. But PLCAA played a key role in delaying justice for him, even after the New York Appellate Division ruled in 2012 that his lawsuit could proceed. The settlement announced on Nov. 24 marked the industry’s grudging acceptance of the reality of their responsibility — but it’s only one of several recent developments that are part of a broader shifting tide.

Common to all is the utter irrelevance — if not hypocrisy — of the gun lobby’s rhetoric about protecting the “Second Amendment rights” of “a good man with a gun.”

“The facts of Williams vs. Beemiller show how the criminal gun market gets supplied by irresponsible conduct of gun companies,” said Lowy. “And these are the very gun companies that the gun lobby seeks to protect, in its lobbying and through legislation like the Protection of Lawful Commerce in Arms Act. The gun lobby seeks that protection simply talking about the rights of law-abiding citizens and the need for ‘the good guy with a gun to take on a bad guy with a gun’. But the reality is the misconduct of gun companies is supplying bad guys with guns. And that’s what happened in this case.”

At an even deeper level, conservatives are supposedly champions of “individual responsibility.” But individual responsibility plays no role at all in how most of the gun industry operates, especially in this case. It’s always someone else’s fault. 

“The general view of the gun industry is, it’s not our job to determine whether somebody’s law-abiding or not, that’s the job of law enforcement,” Lowy explained. “So it’s not our responsibility to take any measures, or even to pay attention to indicators that show that they’re not law-abiding. If they’re not law-abiding, then let ATF arrest them.” There’s just one problem: “When that happens, it’s after people are shot and guns are out on the street and a lot of damage has been done. The gun companies are the ones who can take action before the damage is done.”

If they take personal responsibility, that is. And that’s what the settlement agreement called for. Specifically, “MKS agreed to promote and encourage all of its dealers to use what’s called the ‘Don’t lie for the other guy’ program, which helps identify and screen for illegal straw purchases,” Lowy said. “That has some protocols for dealers, that tells them things to look for in sales and also makes clear that if you have doubts about the legality of the sale, you don’t do the sale. 

“They also agreed they would not engage in any sales to non-licensed dealers or non-licensed sellers, and that they would not sell guns for resale, unless the buyer had a federal license,” which was a major violation in this case. There were strong “indicators” in the Williams case that these sales of almost 200 guns were “straw purchases,” involving buyers with no federal firearms license. 

The implicit argument, Lowy says, was, “Well we thought one of them was going to get a federal firearms license.” That’s no longer good enough. “Here MKS is saying that they will not sell a gun for resale unless a person actually has a license. So that’s a huge step forward.”

Even the general proposition that a gun distributor has specific responsibility is “really important,” Lowy continued. “If distributors around the country did that, that can have a huge effect in decreasing the flow of guns in criminal markets. Ideally, we will have distributors who all require the dealers they supply to sell guns in specific responsible ways. If they don’t do so, they cut off their supply.”

In addition to serving as a model for other litigation, the reforms Brady achieved in this settlement can be a model for legislation, at both the state and federal levels. “It’s also a model for enforcement,” Lowy said. “These are things that ATF and other regulatory agencies could and should require of gun dealers.”

The potential for executive regulatory action immediately made me think of The American Prospect’s Day One Agenda, which I wrote about on Thanksgiving weekend. Gun safety wasn’t explicitly part of that agenda, but easily could be.  “When President Obama was stymied on gun safety legislation, he decided to resort to executive action that was only marginally productive,” American Prospect executive editor David Dayen told Salon. “If there’s a more robust authority available that can crack down on gun trafficking, I’d say the Biden administration should capitalize on it immediately. Progress will be its own reward, as a policy matter and a political one.”

Done properly, there’s broader support for such reforms than you might think. “I’ve seen and heard of gun dealers who want to do the right thing, want to learn how to sell guns more safely,” Lowy told me. “I’ve heard from gun dealers over the years who’ve read about cases that we’ve brought at Brady, and have said ‘I’m going to change my practices to prevent that from happening in my store.'” Of course, the deterrent effect of litigation helps motivate more responsible conduct too. But it helps to make the most of voluntary buy-in. The lack of such buy-in lies at the heart of another recent ground-shifting case.

On March 20, 2016, in Mount Pleasant, Pennsylvania, a small town southeast of Pittsburgh, 13-year-old J.R. Gustafson was killed in an unintentional shooting by a boy who mistakenly believed the gun he was holding had been unloaded when the magazine was removed. The manufacturer’s careless disregard was underscored in Brady’s summary of facts about the case:

This tragedy of J.R. Gustafson’s death could have been prevented had the manufacturer included common practice safety features to the firearm, including a magazine disconnect safety feature, invented over 100 years ago to prevent precisely this type of tragedy, that disables a gun when the magazine is removed.

The suit Brady brought on J.R.’s parents’ behalf was initially dismissed, citing PLCAA, but in a decision on Sept. 28, a three-judge panel of the Superior Court of Pennsylvania held that PLCAA is unconstitutional in its entirety. It was the first appeals court to do so. 

Notably, the court deemed it unconstitutional on the same grounds that an earlier gun safety law was found unconstitutional: “The PLCAA, just like the Gun-Free School Zones Act, is unsustainable; it grants the gun industry immunity regardless of how far removed from interstate commerce the harm arises.”

Congress cannot usurp local regulatory authority without specific constitutional authorization — most commonly, as found in the Commerce Clause, which empowers it to “regulate Commerce … among the several States.” While PLCAA pretends to regulate interstate commerce, in reality, “The Act regulates litigation,” the court wrote, a point that Lowy underscored. “PLCAA is not a legitimate exercise of Congress’s Commerce Clause authority, because it simply regulates state governance, not commerce,” he said. 

“Unlike every other pre-emption law, PLCAA does nothing to require gun companies to act responsibly or meet any standards in their business,” he explained. What’s more, “PLCAA does not even bar or limit liability of gun companies — it simply directs states how they must make their liability law that applies to gun companies,” that is, by way of statute rather than common law, which is the centuries-old foundation of liability law in all 50 states. “That is not permitted by the Constitution, and is unsupported by the Commerce Clause.”

Significantly, the Second Amendment played almost no role in the decision. There was a brief, footnote-like discussion, “The Second/Fourteenth Amendments & Severability,” in which the court addressed an issue not raised by any of the parties: whether any Second Amendment right was at stake. The court’s ruling first cited the Supreme Court’s infamous 2008 Heller decision — the first to declare an individual right to gun ownership — and then said, “While these Defendants are American corporations, they are not ‘Americans’ as Heller used that term. Heller referred to the American People. The Gun-Industry Defendants [corporations] are [fictitious] ‘persons’ but not ‘people.’ Accordingly, they have no Second Amendment rights.”

On Dec. 3, the superior court granted a rehearing en banc — and the Pennsylvania Supreme Court and the U.S. Supreme Court could be next. Lowy does not sound worried by the lopsided predominance of conservative justices. “The court properly struck PLCAA down as unconstitutional mostly on federalism grounds, that Congress infringed on traditional state authority,” he said. “That is mostly viewed as a conservative position, and Justice [Antonin] Scalia was one champion of it. Conservative jurists, if they are applying conservative principles evenhandedly, should agree that PLCAA is an unconstitutional infringement on state authority.”

A third significant action is the filing of the first two civil suits against the “ghost gun” industry — makers of kits that can be used to quickly assemble fully functioning and completely untraceable firearms. The suits are being brought by victims of a November 2017 mass shooting in Tehama County, California, which left six people dead (including the perpetrator) and 18 injured (including five children). “In advertising their gun kits for sale in California, many of the defendants emphasize that no Brady background check or registration is required — unlike when buying a gun,” Brady notes in a forthcoming press release. The gun parts in such a kit have no serial numbers, so identifying the purchaser can be impossible. 

Here, once again, we see no trace in the law of protecting the “good guy with a gun.” It’s his opposite number, the “bad guy with a gun,” who’s being protected, as Lowy confirmed.

“The gun lobby claims that they oppose gun laws to protect law-abiding gun owners or Second Amendment rights,” Lowy noted. “But law-abiding gun owners have ample conventional guns that they can buy, after Brady background checks that keep guns from dangerous people — guns that have serial numbers to help law enforcement investigate crimes. Ghost guns are sought after by criminals who can’t buy guns legally, and who want guns without serial numbers or a paper trail.”

There’s an important public policy purpose in bringing this lawsuit, Lowy argued. “Although it’s obvious that ghost guns arm dangerous criminals and harm innocent people, the companies that make and sell ghost guns make profits without bearing any of the costs,” he said. “That’s why it’s critical that they be held accountable to victims. We hope to establish a legal precedent that ghost gun companies can be held accountable for injuries and deaths they cause, to bring some civil justice to these innocent victims, and to lead companies to sell guns more responsibly.”

The three cases cited above are hardly exhaustive. Another case whose settlement should be announced soon involves another gun industry loophole custom-made for the “bad guy with a gun”:  replica antique black powder guns (that are nonetheless fully functional). Collectively, what these cases show is how deeply dishonest the “good man with a gun” rhetoric really is. It’s not that such people don’t exist. But they’re not the people the NRA and the gun industry have been looking out for. 

Quite the contrary: They’ve been used as human shields to fend off gun safety activists and reasonable regulation, while the “bad man with a gun” demographic has been catered to for decades, as the body count continues to grow. With the NRA in crisis and the industry’s PLCAA bulwark teetering, the time is ripe for a historic, responsibility-focused shift in gun policy. And the fact that Congress is still paralyzed no longer matters all that much. Change is coming anyway. Perhaps it already has.

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