Bernie Sanders and the 'Right to Sue' Gun Suppliers

Jacob Sullum
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Posted: Apr 20, 2016 12:01 AM
Bernie Sanders and the 'Right to Sue' Gun Suppliers
As a legislator representing a rural state with many firearms and few restrictions on them, Bernie Sanders has been more resistant to gun control than you might expect a self-described democratic socialist to be. But as a candidate for the Democratic presidential nomination, the Vermont senator has felt pressure to toe the party line, as reflected in his debate with Hillary Clinton last week.

Clinton once again attacked Sanders for saying people should not be able to recover damages from law-abiding gun suppliers for crimes committed by their customers, and this time he seemed to abandon that sensible position. But other recent comments by Sanders suggest his apparent capitulation was not what it seemed.

Since he launched his campaign, Sanders has taken flak from Clinton and other gun controllers for supporting the 2005 Protection of Lawful Commerce in Arms Act, which bans lawsuits based on "the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended." But both before and after he cosponsored a bill aimed at repealing that law, he defended the principle it embodies, which suggests his actual opinion has not changed.

In a Rolling Stone interview last December, Sanders said suing a gun dealer who sold a murder weapon is like suing a furniture dealer who sold a table that was used to bludgeon someone to death. During his March 6 debate with Clinton, Sanders forcefully criticized a lawsuit against the manufacturer, distributor and dealer who supplied the rifle used in the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut.

"What people are saying is that if somebody who is crazy or a criminal or a horrible person goes around shooting people, the manufacturer of that gun should be held liable," Sanders said. "Then essentially your position is there should not be any guns in America, period."

In an April 1 interview with the New York Daily News, Sanders was again asked about the Sandy Hook lawsuit. "Do I think the victims of a crime with a gun should be able to sue the manufacturer?" he replied. "No, I don't."

Yet during last week's debate, when Clinton accused Sanders of saying the families of the Sandy Hook victims "didn't deserve their day in court," he responded, "They have the right to sue, and I support them and anyone else who wants the right to sue." On Sunday he told CNN, "Of course they have a right to sue; anyone has a right to sue."

Sanders' wording leaves wiggle room. The Sandy Hook plaintiffs do in fact have "the right to sue" under current law, but that does not mean they will win, or that Sanders thinks they should.

The plaintiffs -- who include the families of nine people murdered at the school, plus a survivor of the massacre -- are taking advantage of an exception in the Protection of Lawful Commerce in Arms Act that allows lawsuits based on "negligent entrustment." But they stretch that concept so far that their argument is essentially the same as the one Sanders has repeatedly rejected.

As usually understood, negligent entrustment might describe the sale of a gun to someone the dealer had reason to believe was bent on violence, or to someone who was clearly buying it for a legally disqualified third party. By contrast, the Sandy Hook lawsuit argues that the defendants are guilty of negligent entrustment because they made a gun with no legitimate civilian uses available to the general public.

That claim, which is based on widely accepted myths about so-called assault weapons, aims to delegitimize a sector of the gun industry that has supplied firearms to millions of Americans, a tiny percentage of whom have used them to commit crimes. This is exactly the sort of lawsuit Sanders has consistently condemned. It seems the supposedly straight-talking senator is trying to have it both ways.