Wehle: To Do Something About Guns, We Need the Courts to Ignore the Law So Plaintiffs Can Bankrupt Firearm Manufacturers


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President George W. Bush signs the Protection of Lawful Commerce in Arms Act. (White House photo by Paul Morse)


One way to address negative externalities is for the government to intervene through subsidies, taxes, or legal constraints on the producer. But when it comes to guns, Republican legislators are overwhelmingly unwilling to take those steps. As happened with the tobacco industry, then, the most practical means of spreading the costs of gun violence is to turn to tort law and the courts. …

President Joe Biden has repeatedly called for Congress to repeal the PLCAA—a virtual impossibility as long as the Senate filibuster exists to kill legislation without a 60-vote supermajority. Even after Uvalde, the prospect of garnering 10 Republican votes to lift immunity for the politically powerful gun industry is nil.

Even so, in most cases in the judicial system, the success or failure of lawsuits hinges on discretion. Discretion of judges to let a case survive a motion to dismiss. Discretion of juries to look beyond just the facts and the law and consider the whole picture around a dispute. With ongoing mass shootings keeping the issue in the news, the moment is ripe for some serious measure of accountability. Litigation worked to force the tobacco industry to shoulder its share of the blame for smoking deaths. It could work for guns, too.

— Kimberley Wehle in The Best Hope for Fixing America’s Gun Crisis

(emphasis added)

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