The last, best hope for anti-gun legislation?

Jacob Sullum
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Posted: Mar 21, 2003 12:00 AM

As American soldiers go to war in Iraq, their lives will depend on the weapons they carry. Meanwhile, the industry that makes those weapons is under attack here at home.

In Brooklyn on Monday, jury selection is scheduled to begin in a federal lawsuit blaming gun manufacturers for violent crime. The suit was filed by the National Association for the Advancement of Colored People, whose president has called it "an effort to break the backs of those who help perpetuate (the) oversaturation of weapons in our communities."

The NAACP is seeking an injunction that would impose specific restrictions on firearm sales, effectively setting national gun control policy by judicial fiat. It argues that gun makers have created a "public nuisance" through "negligent marketing" -- "oversupplying" their products even though they know some will end up in the hands of criminals.

Sound familiar? The same basic argument has been used, so far unsuccessfully, by municipalities seeking to get money from the industry and regulate it through the courts.

Of 32 gun cases filed by local or state governments (some of which have employed other legal theories), 25 have been partly or completely dismissed. This month a California judge dismissed lawsuits against gun makers by 12 counties and municipalities that tried to use the public nuisance argument.

The NAACP case is different because it will be heard by U.S. District Judge Jack B. Weinstein, who is notorious for his activism and anti-gun bias. Weinstein presided over the 1999 case Hamilton v. Accu-Tek, the only case in which a jury has awarded damages based on the negligent marketing theory.

The lawyer in that case was Elisa Barnes, who pioneered this approach and is also handling the NAACP's lawsuit. Barnes went out of her way to ensure that her case was assigned to Weinstein, who will decide the outcome himself, with the jury playing only an advisory role.

The National Shooting Sports Foundation (NSSF), an industry group, notes that Barnes mysteriously omitted Beretta USA, the country's third largest handgun maker, from the list of defendants, although the company was included in her earlier suit. Why? Perhaps because Beretta USA and the NAACP are both incorporated in Maryland, which would have made it impossible for Barnes to assert the "diversity jurisdiction" that got her case into federal court.

"No federal court, no Judge Weinstein," the NSSF observes. "Elisa Barnes and the NAACP thought it was more important to have the case heard by Judge Weinstein, who they obviously believe is favorably disposed to their cause, than to have one of the largest and most well known members of the firearm industry in the case."

Weinstein demonstrated his value to the anti-gun cause in Hamilton v. Accu-Tek, which was filed by relatives of shooting victims. He let the case proceed when almost any other judge would have dismissed it, and he bullied the jurors into a verdict they would not have arrived at on their own.

The jurors deliberated for six days, repeatedly sending out notes saying they were deadlocked, but Weinstein told them to keep arguing. When they finally announced a verdict, the puzzling mix of seemingly contradictory findings suggested they had tried to split the difference between irreconcilable positions. They said 15 of 25 manufacturers were negligent but only nine were liable, and they awarded damages -- half a million dollars, small potatoes by the standards of modern litigation -- for only one shooting.

The verdict was effectively nullified by the New York Court of Appeals, which was asked by the federal appeals court to address a key issue involving state law. Concerned about "potentially limitless liability" and "the unfairness of imposing liability for the acts of another," the state court noted that "the connection between defendants, the criminal wrongdoers, and plaintiffs is remote" and that "none of the plaintiffs' proof demonstrated that a change in marketing techniques would likely have prevented their injuries."

If there is a similar outcome in the NAACP case, the campaign to restrict guns through the courts could be nearing its end. Although a handful of city-sponsored cases are proceeding in New Jersey and Ohio, anti-gun litigators are not likely to find a friendlier venue than Weinstein's court.

But if Weinstein sides with the NAACP (as he almost surely will) and his decision is somehow upheld on appeal, it will be a green light to enemies of the Second Amendment and to every judge who fancies himself a legislator.