Harvard Law Review
Note, 97 (1984): 1912.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

HANDGUNS AND PRODUCTS LIABILITY

Copyright 1984 by the Harvard Law Review Association

In the past two years, a number of shooting victims or their survivors have brought suit attempting to recover damages from handgun manufacturers under a theory of products liability law. [1] These plaintiffs do not allege that the handguns that caused their injuries were defectively manufactured or that the guns lacked certain necessary safety features; [2] rather, they argue that even properly functioning handguns are defectively designed--that is, that handguns pose a risk of injury that outweighs their utility [3]--and that the system of distributing and marketing handguns is defective in that it makes it too easy for criminals and others who misuse handguns to obtain them. [4] In short, the plaintiffs who have brought these suits are attempting to use products liability law to hold manufacturers liable for making available a product that performs exactly as it is intended to perform.

This Note attempts to show why such use of products liability law is inappropriate. It makes little sense to characterize as 'defective' a handgun that performs as intended and causes injury only because it is intentionally misused. Similarly, the notion that manufacturers should be held responsible for keeping their products out of the hands of criminals--an impossible task-- seems flawed both doctrinally and as a matter of policy. Perhaps most important, the problem of determining how best to deal with the misuse of handguns is a matter better suited for legislatures than for courts.

I. DESIGN DEFECT DOCTRINE

A plaintiff may not ordinarily recover damages from a manufacturer for injuries caused by its product unless he can prove that the product is 'defective.' [5] A product may be defective not only when it has been manufactured not according to specifications, but also [Page 1913] when its basic design is unsafe. [6] One measure of design defect is the risk/utility test, [7] under which a product is defective if the utility of particular features of its design is outweighed by risks attendant to those features. [8] For example, an automobile may be designed with [Page 1914] its gasoline tank near the rear bumper. If placing the tank in the center of the car would reduce the chances of fire in rear-end collisions without creating other risks, significantly reducing performance, or significantly increasing costs, then the risk of the rear-end design outweighs its utility, and the car is defective. [9]

One of the theories underlying suits against handgun manufacturers is that handguns are defective because their risk far outweighs their utility. One leading proponent of manufacturers' liability notes that handgun use results in 22,000 deaths every year in the United States and that medical care for gunshot victims costs approximately $500 million each year. [10] Although handguns constitute only thirty percent of all firearms sold in the United States, ninety percent of all cases of firearm misuse involve handguns. [11] Most murders are sudden crimes of passion; without the ready availability of handguns, such crimes would be less likely. [12] Proponents of manufacturers' liability further argue that handguns are almost useless for self-protection: a handgun is six times more likely to be used to kill a friend or relative than to repel a burglar, and a person who uses a handgun in self- defense is eight times more likely to be killed than one who quietly acquiesces. [13] Thus, handguns, at least as distributed to the general public, are said to be defective. [14] [Page 1915]

This theory has several flaws. First, the assertion that the risks posed by handguns outweigh their utility is open to question, because statistics on deaths involving handguns cannot capture all the possible uses and benefits of handguns. Handguns are collected as a hobby and are used for target shooting and hunting, as well as for self-defense. [15] Despite the great movement in this country to ban or restrict handgun ownership, the failure of any state legislature to do so strongly suggests a general legislative agreement that handguns do have social utility. [16] Furthermore, handguns provide their owners with a psychic security that cannot be easily measured. [17] And although the chances that an intruder will be shot by a homeowner or merchant are small, the consequences of a gunshot wound are so serious that the possibility may deter many people from attempting crimes. [18]

Second, products liability doctrine seems to demand, as a threshold matter, that there be 'something wrong' with a product before risk/utility analysis may be applied. [19] Risk/utility balancing is a test [Page 1916] devised for use in situations in which it is difficult to determine whether a product really is defective. A test designed for marginal or doubtful cases should not be used to support the conclusion that there is a defect in a product that is obviously doing what it is supposed to do. [20]

Indeed, the statement that a product is defective implies that the product can be fixed--that is, that one can make a product that is essentially similar but lacks the dangerous characteristics. The risk/utility test itself incorporates the notion that a defect is something that can be repaired: the factors a jury is supposed to consider when weighing risk and utility include the feasibility and cost of an improved design. [21] But a handgun is one of those products that by its very nature must be dangerous; if a handgun does not have the capacity to kill, it is not a handgun. Even Justice Traynor--one of the principal architects of strict products liability--was apparently willing to concede that manufacturers should not be liable for the generic dangers of their products: 'Commentators describe the ignitable tip of a match or the cutting edge of a knife as qualities generic to the goods; both the manufacturer and the consumer expect and want the product to burn or cut.' [22] Several courts, applying the risk/utility test, have agreed in dicta that a product is not defective merely because the product's function requires that it be dangerous. 'Although a knife qualifies as an obviously dangerous instrumentality,' one federal court has noted, 'a manufacturer need not guard against the danger that it presents.' [23] The court reasoned that the danger posed by knives is common knowledge, that a guard over the blade would eliminate the knife's utility, and that the cost of manufacturing a 'safe' knife might be prohibitive. [24] [Page 1917]

It may be argued that a handgun is not serving its function when it is used for unlawful purposes and that such use of handguns should therefore be subject to a risk/utility test. [25] But the answer to the question whether a product is performing its function cannot lie in the legality of the particular use to which it is put. Virtually any product can be put to an illegal use: an automobile can be used in order to make a getaway from a bank robbery, or a ship in order to smuggle drugs, yet no one would suggest that those products were not performing their intended function of transportation. The argument that a jury should be permitted to subject a product to risk/utility scrutiny merely because it is often used illegally has no logical limit: the manufacturer of any product that is frequently put to illegal use could be called into court to defend his product. [26]

Furthermore, the rationale underlying the risk/utility test does not justify its extension to handgun cases. In early design defect cases, courts applied a 'consumer expectations' test, under which a product that performed as expected was deemed not defective. [27] A number of deficiencies in the consumer-expectations test led the courts to abandon it in favor of the risk/utility test. First, in many cases, accurate determination of the average consumer's expectations proved impossible. [28] Second, in many situations, the average consumer 'would not know what to expect, because he would have no idea how safe the product could be made.' [29] Third, like the discredited patent-danger rule, under which a product was not defective if its dangerousness were obvious (even though easily curable), the consumer- expectations test was perceived to cr]eate insufficient incentives for safer product design. [30] [Page 1918

None of these reasons for adopting the risk/utility test suggests a need to apply the test to handguns. Although it may be difficult to determine the average consumer's expectations, he must expect that a product will perform as it is held out to perform. Moreover, there is no problem here of consumer confusion over the possibilities of 'how safe the product could be made': handguns necessarily fire bullets with deadly force. Courts eliminated the patent-danger rule to encourage safer design, [31] not to penalize the makers of necessarily dangerous items. One of the hallmarks of products liability doctrine is the rule that liability is not absolute: the manufacturer is not an insurer of its product. [32] Thus, as the final report of the Interagency Task Force on Product Liability noted, a manufacturer need not be held liable when 'the danger of a product is such common knowledge that the product cannot be considered to be defective.' [33] Handguns appear to be such a product. [34]

If courts extended risk/utility analysis to products liability suits against handgun manufacturers, makers of many other products might be subject to similar liability. [35] Even products that have long been acknowledged to be nondefective could be open to challenge. For example, the Restatement (Second) of Torts states that ' g ood whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics.' [36] Yet thousands of people in America are alcoholics, and alcoholism inflicts great costs on society. Alcohol contributes to diseases such as cirrhosis of the liver, and drunk drivers cause thousands of injuries and deaths in automobile accidents each year. It is by no means clear that the [Page 1919] pleasure people derive from alcohol outweighs the cost in human lives imposed by alcohol abuse.

Products liability furthers the goals of compensating victims and placing financial losses caused by personal injuries on those who are best able to spread those losses. [37] Ability to spread loss, however, has never been a sufficient basis for imposing liability. [38] When injuries result from the intentional and illegal use of the product by a third party, requiring a defendant manufacturer to remunerate a personal-injury plaintiff achieves compensation only at the expense of fairness. [39] Our notion of fairness is premised on making individuals responsible for their own acts; [40] spreading the costs of illegal activities [Page 1920] would force guiltless purchasers to subsidize the activities of the guilty. [41]

II. DEFECT IN DISTRIBUTION

It has also been argued that the manner in which handguns are distributed constitutes an actionable defect, because the distributional system makes it too easy for handguns to be purchased by people who misuse them. [42] According to this argument, legal restrictions on the purchase of handguns are few and inadequate; [43] in many states it is possible for 'an obviously irresponsible person' to buy a gun. [44] The argument that defects in the distribution of handguns justify imposition of strict liability on gun manufacturers finds some support in Moning v. Alfono, [45] a 1977 decision of the Supreme Court of Michigan. The court held that, if a jury finds that the risks of selling slingshots to young children outweigh the utility of permitting the children to have slingshots, the manufacturer can be held liable for the injury that results when one child shoots another with a slingshot. [46]

The view expressed in Moning is not universally accepted, however, and will not easily be extended. At least one other court has held that retailers and distributors are not negligent under products liability law 'for selling toy slingshots to the class of persons for whom they were intended.' [47] Furthermore, although the Moning court used very broad language, [48] it also pointed out that ' s pecial rules for children are not unusual.' [49] Children are an easily identifiable group, [Page 1921] and they are acknowledged to have less ability than adults to appreciate danger or to assume responsibility. [50] Moreover, requiring purchasers of a product to prove their age involves far less a problem of proof than requiring them to prove their sanity, lawful intent, or ability to control themselves under pressure.

A defect-in-distribution theory thus could not be justified as a mere application of existing products liability law to handguns; there is no currently accepted legal doctrine of 'defect in distribution.' In general, a plaintiff must show a manufacturing defect, a design defect, or a failure to give adequate warning in order to recover from a manufacturer for injuries involving its product. [51] There are several reasons the courts should not recognize defective distribution as a basis for liability. First, handgun manufacturers have no practical means to discern amid their many thousands of potential customers the persons who will misuse the guns. [52] Manufacturers could not devise a safe and effective system of distribution without precluding the purchase of guns by many people who want them for legitimate purposes. [53] Moreover, courts' necessarily ad hoc inquiries into the adequacy of distributional schemes would inevitably yield doctrinal inconsistencies and uneven results, and the theory of defective distribution could not easily be limited to handguns. [54] [Page 1922]

Even if a defect in distribution could be shown, the manufacturer would not be liable unless the defect actually caused the plaintiff's injury. [55] In order to prove actual causation (cause in fact), the plaintiff would have to show that his assailant would not have acquired a handgun had the manufacturer used a 'nondefective' system of distribution. If the assailant would have been able to purchase a handgun despite a 'better' system of distribution, the plaintiff could not recover. [56] Because many of the people who misuse handguns have no criminal record or established history of violence, [57] a distributional system that attempted to weed out people who were likely to misuse handguns could not prevent distribution to most of those who actually do misuse them; hence the cause-in-fact requirement would be difficult to fulfill.

Indeed, many handguns that are used in crimes have been stolen from the original purchaser. [58] It is hard to imagine a practical method of distribution that would prevent the theft of handguns. If legitimate manufacturers tightened the distribution system, the black market for firearms would likely expand. [59] Small manufacturers of handguns could quickly produce thousands of guns, then disappear when tort [Page 1923] suits were filed. Because buying handguns would not itself be illegal, cracking down on such fly- by-night manufacturers would be impossible. Thus, placing a duty upon handgun manufacturers to improve their distribution systems would not reduce the availability of handguns to potential misusers.

One could argue that, because there is no safe method of distributing handguns, the manufacture and sale of handguns should be treated as an abnormally dangerous (or ultrahazardous) activity warranting strict liability. In Richman v. Charter Arms Corp., [60] a federal district court held that handgun marketing is not 'automatically . . . exempt from the ultrahazardous classification.' [61] The court argued that a reasonable jury applying the criteria set forth in section 520 of the Restatement (Second) of Torts [62] could find that marketing handguns is an abnormally dangerous activity. [63]

The court's application of the Restatement's criteria, however, was seriously flawed. Ordinarily, an activity that is 'a matter of common usage' is exempt from classification as an ultrahazardous activity. The court found that a handgun is 'not an item of 'general use," [64] but conceded that, if the gun manufacturer could convince a jury that firing handguns was a matter of common usage, 'the plaintiff would be likely to lose on the merits.' [65] The question, however, should not have been whether firing handguns is a matter of common usage, but whether manufacturing and selling handguns constitute matters of common usage, because the latter acts are the activities alleged to be ultrahazardous. In light of the fact that approximately two million handguns are sold each year, [66] the manufacture and sale of handguns are unquestionably 'of common usage.'

Furthermore, the user of a product, not its manufacturer, is usually liable for an ultrahazardous activity. For example, although blasting is deemed abnormally dangerous in some circumstances, the production [Page 1924] and distribution of blasting caps is not. [67] Similarly, it is not the manufacture and sale of handguns that is hazardous, but their use (or misuse). Hence the doctrine of strict liability for persons engaged in ultrahazardous activities provides no basis for manufacturer liability.

In any case, the manufacturer is not the party best able to prevent the distribution of handguns to people who will misuse them. The retailer, who controls the distribution of handguns to the general public, is the more appropriate party to bear the burdens of defective distribution. Congress' recognition of the propriety of placing these burdens on the dealer is apparent in its passage of legislation making it illegal for a dealer to sell a firearm to someone whom he knows or has reason to know has been convicted of, or is under indictment for, a crime punishable by imprisonment for more than a year. [68] Likewise, courts have often placed liability upon dealers who sell firearms to people they should have known would use the weapons to commit crimes. [69]

Finally, handgun sales are currently regulated by the federal government and the states, and although compliance with government regulations is not conclusive, [70] it is evidence of the lack of a defect. [71] The Gun Control Act of 1968 requires all manufacturers and dealers to be licensed. [72] Virtually every state puts some additional controls on handgun sales, usually through the requirement of a license--to sell, purchase, or carry--or through the imposition of a waiting period before one may purchase a handgun. [73] In New York, for example, handguns may be sold only to licensed purchasers; [74] an individual who is not of 'good moral character,' who has been convicted of serious offenses, or who has had any mental illness will not be granted a license. [75]

III. A QUESTION FOR LEGISLATURES

Despite the well-known dangers of handgun use and the strong movement to ban private ownership of handguns, [76] no state has seen [Page 1925] fit to prohibit the manufacture or sale of handguns. The clear implication of the legislative inaction with regard to handguns is that the legislatures do not regard handguns as unreasonably dangerous products. [77]

A troubling aspect of the debate over handguns is the impression that those who advocate a products liability theory do so because they are dissatisfied with the results of the democratic process and wish the courts to overturn those results. [78] One may seriously question whether the courts should intervene in matters of public policy simply because some people believe that the legislatures have acted unwisely or are controlled by special interests. [79]

As an institution, the judiciary is ill-equipped to deal with the problem of handgun abuse. Courts are designed to handle discrete cases on the basis of an evidentiary record; they are not efficient regulators. They cannot continually check the effects of their decisions and make fine alterations as needed. Moreover, each judge and jury has different values and prejudices, and each makes decisions on the basis of a selective record describing a unique set of facts. As a result, decisions in handgun cases are likely to vary widely and to provide little guidance to the manufacturer seeking to conform to legal norms. [Page 1926]

Legislatures, by contrast, do not have to base their decisions on evidence presented to them 'on the record.' They are able to gather the accumulated knowledge relevant to an issue and to commission further research if necessary. More important, legislatures are able to create a coherent, systematic method of regulation that can be monitored and changed periodically as it becomes necessary. In the area of gun control, legislatures can outlaw possession of handguns by certain classes of people. They can regulate fly-by- night handgun manufacturers and distributors as well as the interstate black market in handguns. Moreover, legislatures can attack the problem of violent crime not only through handgun regulations, but also through such complementary measures as mandatory penalties for crimes committed with handguns. [80]

Such institutional flexibility is essential to resolving a controversy as fraught with uncertainty as the role of handguns in society. Advocates of gun control cite studies showing handguns to be a major cause of injuries, death, and crimes. [81] Yet other studies have shown no causal relationship between handguns and crime; still others have suggested that handguns may even reduce crime. [82] Some reports have criticized the methodology of all the studies in this area [83] and concluded that they show 'no strong causal connections between private gun ownership and the crime rate. . . . There is no compelling evidence that private weaponry is an important cause of, or a deterrent to, violent criminality.' [84] It is apparent that, after years of research, there is no conclusive evidence on the relationship between handguns and violence. As one report concludes, 'the contradictory evidence and inconsistent interpretations of evidence' [85] typical of the literature on handguns demonstrate only that 'existing knowledge [Page 1927] about weapons, crime, and the relationship between them is, in general, not adequate as a basis for policy formulation.' [86]

In a typical design defect case, the jury must decide only whether the product could be made safer at a reasonable cost, or whether it meets the reasonable expectations of consumers. [87] But more and more frequently, juries are being asked to answer questions of enormous complexity, such as whether a certain chemical caused cancer or whether testing procedures for a new product were adequate--questions that even experts in the field cannot answer with certainty. It is doubtful whether such incredibly complex questions can be competently addressed by juries of laymen. [88]

As vexing as such questions may be, fact finders would face even greater difficulty in considering the issues raised by products liability claims against handgun manufacturers. No jury or judge could possibly ascertain what effect outlawing handguns would have on the actions of thousands and thousands of people; [89] yet one must answer precisely this question to determine whether the risks of handguns outweigh their utility. And even if the jury could determine how outlawing handguns would affect the crime rate, the jury would still have to balance the potential for reduced violence against the strong desire of many individuals to own handguns. The emotional level of the debate over handguns suggests that people favor or oppose handgun control not because of the evidence regarding the effects handgun control would have on society, but because of their own value judgments about the role handguns should and do have. [90] Gun control is an issue that implicates the tenor of our society and our goals as a nation; many may question whether gun control should be imposed on an ad hoc basis by twelve jurors sitting in judgment on a single case. Legislatures have repeatedly considered the role of handguns in America, and the issue will presumably be an item of strident debate for years to come.

IV. CONCLUSION

Although individual handguns may be defective, and although it may be appropriate for the burden of accidental deaths to be shared [Page 1928] by all purchasers of firearms, a product such as a handgun should not be held defective when it functions exactly as intended. When a product is intentionally and illegally misused, or improperly distributed by another party to those who will misuse it, there is little a manufacturer can do to prevent injury. The question of the value of handguns and their role in society is one for the legislatures, not for the courts. Courts should not use products liability law to preempt political debate over the emotion-charged and value- laden issue of handgun control.

[1] Opinions have been rendered in at least three of these cases. See Mavilia v. Stoeger Indus., 574 F. Supp. 107 (D. Mass. 1983); Richman v. Charter Arms Corp., 571 F. Supp. 192 (E.D. La. 1983); Martin v. Harrington & Richardson, Inc., No. 83-C-310 (N.D. Ill. July 15, 1983) (available Apr. 1, 1984, on LEXIS, Genfed library, Dist file). [2] This Note does not address accidental injuries that result from the absence of safety devices or the malfunctioning of the gun. Manufacturers are liable for such defects under standard products liability doctrine. See Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979); Bender v. Colt Indus., Inc., 517 S.W.2d 705 (Mo. Ct. App. 1974).

[3] See Podgers, Tort Lawyers Take Aim at Handguns, BRIEF, Nov. 1981, at 5, 6-7.

[4] See id. at 7, 39.

[5] See W. KIMBLE & R. LESHER, PRODUCTS LIABILITY § 1, at 2 (1979) (stating that a defect must be shown 'whether the plaintiff proceeds on a theory of negligence, warranty, strict tort liability, or some other applicable theory'); Rheingold, Proof of Defect in Product Liability Cases, 38 TENN. L. REV. 325, 325 (1971). For a history of products liability, see Wheeler, A Brief History of the Development of Modern Product Liability Law, in PROCUCT DESIGN LIABILITY 13 (M. Wheeler ed. 1981).

[6] See W. KEETON, D. OWEN & J. MONTGOMERY, PRODUCTS LIABILITY AND SAFETY: CASES AND MATERIALS 41 (1980); W. KIMBLE & R. LESHER, supra note 5, § 1, at 3; Phillips, The Standard for Determining Defectiveness in Products Liability, 46 U. CIN. L. REV. 101, 102 (1977); Wade, A Conspectus of Manufacturers' Liability for Products, 10 IND. L. REV. 755, 756-57 (1977).

Products liability doctrine recognizes two other types of defects. Malconstructed items that are more dangerous than they would have been had they been made as designed are said to have manufacturing defects. See Wade, supra, at 756-57. A product may also be defective if it is sold without sufficient warnings or instructions. See id. Although some commentators have argued that manufacturers have a duty to warn consumers and dealers about the dangers of handgun use and the possibility of handgun theft, see, e.g., Note, Manufacturers' Liability to Victims of Handgun Crime: A Common-Law Approach, 51 FORDHAM L. REV. 771, 784-87 (1983), most authorities agree that there is no duty to warn of dangers that are generally known, see INTERAGENCY TASK FORCE ON PRODUCT LIABILITY, FINAL REPORT, at II-16 (1978) [hereinafter cited as INTERAGENCY TASK FORCE]. Moreover, warnings are unlikely to deter the illegal use of handguns. See Richman v. Charter Arms Corp., 571 F. Supp. 192, 197 (E.D. La. 1983).

[7] See e.g., Turner v. General Motors Corp., 584 S.W.2d 844, 847 & n.1 (Tex. 1979). The test is sometimes stated as whether a reasonably prudent manufacturer who had knowledge of the defect would have distributed the product. See Davison, The Uncertain Search for a Design Defect Standard, 30 AM. U.L. REV. 643, 654 (1981).

Other courts apply another measure of design defect, the consumer-expectations test. See RESTATEMENT (SECOND) OF TORTS § 402A comment g (1965) (strict liability applies when 'the product is . . . in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him'). Some courts use consumer expectations as the exclusive criterion of whether a design is defective. See, e.g., Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis. 2d 326, 332, 230 N.W.2d 794, 798 (1975). Other courts use the consumer-expectations test in conjunction with the risk/utility test and hold a product defective either if it does not live up to consumer expectations or if the risk posed by its design outweighs its utility. See, e.g., Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 884-85 (Alaska 1979); Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 432, 573 P.2d 443, 455-56, 143 Cal. Rptr. 225, 237- 38 (1978).

[8] Dean Wade lists seven factors that a court should consider in determining whether a product is defective under a risk/utility test:

(1) The usefulness and desirability of the product--its utility to the user and to the public as a whole.

(2) The safety aspects of the product--the likelihood that it will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would meet the same need and not be as unsafe.

(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

(5) The user's ability to avoid danger by the exercise of care in the use of the product. (6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

Wade, On the Nature of Strict Tort Liability for Products, 44 MISS. L.J. 825, 837-38 (1973) (footnote omitted).

For examples of judicial application of Dean Wade's factors, see Dorsey v. Yoder Co., 331 F. Supp. 753, 760 (E.D. Pa. 1971) (applying Pennsylvania law), aff'd mem., 474 F.2d 1339 (3d Cir. 1973); Byrns v. Riddell, Inc., 113 Ariz. 264, 267, 550 P.2d 1065, 1068 (1976) (en banc); Cepeda v. Cumberland Eng'g Co., 76 N.J. 152, 172-75, 386 A.2d 816, 826-29 (1978), overruled in part, Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 177, 406 A.2d 140, 153 (1979); Roach v. Kononen, 269 Or. 457, 464-65, 525 P.2d 125, 128- 29 (1974).

Dean Wade's test should not be applied to ban a product merely because it can be put to dangerous uses. Wade states that strict products liability does not make manufacturers insurers; otherwise, he notes, 'a gun maker would be liable to anyone shot by the gun.' Wade, supra, at 828.

[9] See Self v. General Motors Corp., 42 Cal. App. 3d 1, 6, 116 Cal. Rptr. 575, 578 (1974).

[10] See Turley, Manufacturers' and Suppliers' Liability to Handgun Victims, 10 N. KY. L. REV. 41, 42-43 (1982). Approximately 9,800 of those deaths are the result of one person's intentionally shooting another. See id. at 42.

[11] See id. at 41-42.

[12] See id. at 58. Handguns, it has been claimed, are five times deadlier than knives. See Zimring, Is Gun Control Likely to Reduce Violent Killings?, 35 U. CHI. L. REV. 721, 728 (1968).

[13] See Turley, supra note 10, at 59-60.

[14] See id. at 49-61. At least one litigant has argued that the risk created by small, inexpensive handguns is particularly great because such guns are unreliable and thus inappropriate for proper uses--military training and combat, law enforcement, hunting, tartet shooting, or self-defense. See First Amended Complaint for Damages at 5, Brady v. Hinckley, C.A. No. 82- 0549 (D.D.C. 1982). But a large percentage of people who misuse handguns--even inexpensive handguns--purchase them for noncriminal reasons. See Kleck & Bordua, The Assumptions of Gun Control, reprinted in CONGRESSIONAL RESEARCH SERV., LIBRARY OF CONGRESS, 97TH CONG., 2D SESS., FEDERAL REGULATION OF FIREARMS: A REPORT PREPARED FOR THE USE OF THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE 93, 99 (Comm. Print 1982) (reporting that 58.5% of Florida prisoners convicted in shooting murders purchased their guns for self-defense) [hereinafter cited as FEDERAL REGULATION OF FIREARMS]. Indeed, it is unclear why criminals would be more likely to want poorly functioning weapons than would anyone else. The impetus for the purchase of cheap handguns is primarily economic, and persons who desire handguns for legitimate reasons are as likely to feel economic pressures as criminals are.

[15] See D. SANTARELLI & N. CALIO, TURNING THE GUN ON TORT LAW: AIMING AT COURTS TO TAKE PRODUCTS LIABILITY TO THE LIMIT 5 (1982).

[16] See Richman v. Charter Arms Corp., 571 F. Supp. 192, 202 (E.D. La. 1983).

[17] See Wright & Rossi, Weapons, Crime, and Violence in America, excerpted in FEDERAL REGULATION OF FIREARMS, supra note 14, at 125, 158.

[18] See Kleck & Bordua, supra note 14, reprinted in FEDERAL REGULATION OF FIREARMS, supra note 14, at 101.

[19] See Bennet v. Cincinnati Checker Cab Co., 353 F. Supp. 1206, 1210 (E.D. Ky. 1973); J. BEASLEY, PRODUCTS LIABILITY AND THE UNREASONABLY DANGEROUS REQUIREMENT 65 (1981) ('No one would find that the injuries to a finger were caused by a defect in a match or knife unless there was something wrong with the match or knife.'); W. PROSSER, HANDBOOK OF THE LAR OF TORTS § 99, at 659 (4th ed. 1971) ('There must, however, be something wrong with the product which makes it unreasonably dangerous to those who come in contact with it.'); Epstein, Products Liability: The Search for the Middle Ground, 56 N.C.L. REV. 643, 648 (1978) ('Some concept of product defect is of course central to products liability law. Without it, any product related injury could be attributable to the manufacturer or retailer. All automobile accidents could be the responsibility of the automaker and all murders the responsibility of the gunmaker.'); Podgers, supra note 3, at 39 ('[P]roducts liability law has traditionally focused on whether 'there is something wrong with the product.'') (quoting Prof. Victor Schwartz); Wade, On Product 'Design Defects' and Their Actionability, 33 VAND. L. REV. 551, 551 (1980).

In Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 573 P.2d 443, 143 Cal. Rptr. 225 (1978), the California Supreme Court expressly reserved the question whether a product that exhibits a substantial risk of harm may be found defective even if no safer design is feasible. See id. at 430 n.10, 573 P.2d at 455 n.10, 143 Cal. Rptr. at 237 n.10 (quoting Jiminez v. Sears, Roebuck & Co., 4 Cal. 3d 379, 383, 482 P.2d 681, 684, 93 Cal. Rptr. 769, 772 (1971)). The Barker court noted, however, that the risk/utility test it set forth was designed to make a manufacturer liable when there is something 'wrong' with the product, 'while stopping short of making the manufacturer an insurer for all injuries which may result from the use of its product.' Barker, 20 Cal. 3d at 432, 573 P.2d at 456, 143 Cal. Rptr. at 238. Professor Gary T. Schwartz argues that footnote 10 of Barker means only that an inherently dangerous product may be defective if it is responsible for a major risk even when the user exercises reasonable care. See Schwartz, Foreword: Understanding Products Liability, 67 CALIF. L. REV. 435, 490 (1979). Handguns, if handled reasonably, pose no significant risk of injury to innocent persons.

[20] See Podgers, supra note 3, at 39 (noting that strict products liability under the Restatement (Second) of Torts § 402A 'was 'not meant to apply to products that were not defectively designed or manufactured'') (quoting Prof. Sheila Birnbaum).

[21] See Barker, 20 Cal. 3d at 431, 573 P.2d at 455, 143 Cal. Rptr. at 237.

[22] Traynor, The Ways and Meaning of Defective Product and Strict Liability, 32 TENN. L. REV. 363, 370 (1965). Justice Traynor suggested that a product whose 'norm is danger' may be defective. Id. at 368. Traynor also observed, however, that '[d]efect becomes a fiction . . . if it means nothing more than a condition causing physical injury.' Id. at 372. 'A knife manufacturer is not liable when the user cuts himself with one of its knives. When the injury is in no way attributable to a defect there is no basis for strict liability.' Id. at 367. Thus, in Traynor's view, a product's dangerous characteristics do not amount to a defect if the product is made and purchased for those characteristics.

[23] Dorsey v. Yoder Co., 331 F. Supp. 753, 759 (E.D. Pa. 1971), aff'd mem., 474 F.2d 1339 (3d Cir. 1973).

[24] See id. at 760; see also Robinson v. Reed-Prentice Div., 49 N.Y.2d 471, 479, 403 N.E.2d 440, 443, 426 N.Y.S.2d 717, 720 (1980) (recognizing that the risk/utility test must be tempered by a recognition that some products must be dangerous in order to function).

[25] See Turley, supra note 10, at 60-61.

[26] See infra p. 1918. It could be argued that handguns are different from most other products in that the proportion of illegal to legal uses of handguns far exceeds the proportion for such other items as ships or cars. But if the legality of a particular use is of no relevance in determining a product's function, the frequency with which the product is used illegally is equally irrelevant. Frequency of illegal use would become relevant only if the risk/utility test were applied.

[27] See, e.g., Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill. 2d 339, 247 N.E.2d 401 (1969); Betehia v. Cape Cod Corp., 10 Wis. 2d 323, 332, 103 N.W.2d 64, 69 (1960). In Greenman v. Yuba Prods., Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963), the first case imposing strict products liability, the California Supreme Court indicated that the product involved was defective because it failed when used in the expected manner: 'Implicit in the machine's presence on the market, however, was a representation that it would safely do the jobs for which it was built.' Id. at 64, 377 P.2d at 901, 27 Cal. Rptr. at 701; see also supra note 7 (discussing use of consumer- expectations test in current products liability doctrine).

[28] See Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 VAND. L. REV. 593, 614 (1980).

[29] Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 430, 573 P.2d 443, 454, 143 Cal. Rptr. 225, 236 (1978) (quoting Wade, supra note 8, at 829).

[30].

The shortcoming of the consumer expecation [sic] test is not that it is irrelevant; it is that it is not ambitious enough. A product may well meet consumer expectations [sic] when the danger is obvious and/or well warned against. Nevertheless, the judgment of society may be that for a slight additional cost (in some instances at no cost) design modifications could eliminate obvious dangers which are both substantial and hazardous. This would then seem to force us back into a general risk-utility evaluation of the product.

Twerski, From Defect to Cause to Comparative Fault--Rethinking Some Product Liability Concepts, 60 MARQ. L. REV. 297, 312 (1977); accord Keeton, The Meaning of Defect in Products Liability Law--A Review of Basic Principles, 45 MO. L. REV. 579, 589 (1980).

[31] See, e.g., Holm v. Sponco Mfg., Inc., 324 N.W.2d 207, 213 (Minn. 1982); Micallef v. Miehle Co., 39 N.Y.2d 376, 384-86, 348 N.E.2d 571, 577, 384 N.Y.S.2d 115, 120-21 (1976); Palmer v. Massey-Ferguson, Inc., 3 Wash. App. 508, 517, 476 P.2d 713, 719 (1970); see also 2 F. HARPER & F. JAMES, THE LAW OF TORTS § 28.5, at 1542-46 (1956) (arguing that manufacturers' practice of installing safety devices on products to prevent even obvious dangers should be stimulated by altering the patent-danger rule).

[32] See Cronin v. Olson Corp., 8 Cal. 3d 121, 133, 501 P.2d 1153, 1162, 104 Cal. Rptr. 433, 442 (1972); Howes v. Deere & Co., 71 Wis. 2d 268, 273, 238 N.W.2d 76, 80 (1976).

[33] INTERAGENCY TASK FORCE, supra note 6, at II-11.

[34] Any court that used only the consumer-expectations test would almost certainly find no liability on the part of handgun manufacturers, for the dangers of handguns are obvious and widely known. See, e.g., Mavilia v. Stoeger Indus., 574 F. Supp. 107, 110-11 (E.D. La. 1983); Richman v. Charter Arms Corp., 571 F. Supp. 192, 197 (D. Mass. 1983).

[35] See Peer, McGuire & Clausen, Taking Aim at Handguns, NEWSWEEK, Aug. 2, 1982, at 42.

[36] RESTATEMENT (SECOND) OF TORTS § 402A comment i (1965).

[37] See Chavez v. Southern Pac. Transp. Co., 413 F. Supp. 1203, 1209 (E.D. Cal. 1976).

[38] Other reasons offered for strict products liability include the following: manufacturers use their merchandising practices to encourage consumers to rely upon the manufacturers' skill and expertise for their protection; consumers cannot protect themselves because of the vast number and complexity of products in a modern society; sellers are better able than consumers to confine risks to acceptable levels; most products accidents are probably due to manufacturers' negligence, but it is sometimes impossible for a plaintiff to prove negligence; the negligence standard is insufficient to induce manufacturers to make safer products. See Montgomery & Owen, Reflections on the Theory and Administration of Strict Tort Liability for Defective Products, 27 S.C.L. REV. 803, 809-10 (1976).

[39] See Holmes, Privilege, Malice, and Intent, 8 HARV. L. REV. 1, 10 (1894) (arguing that a seller of firearms should not be held liable for crimes committed with those firearms, because 'every one has a right to rely upon his fellow-men acting lawfully'), quoted in Mavilia v. Stoeger Indus., 574 F. Supp. 107, 110 (D. Mass. 1983); Schwartz, supra note 19, at 444.

The intercession of a third party might also make causation difficult to prove. The plaintiff would have to demonstrate that the injury would not have occurred had there been no handgun available. In some cases, such as accidental shootings or long-range attacks, it could be shown that the injury could not have been inflicted without a handgun. In most cases, however, an alternative weapon is probably available; causation would thus turn on the motivation and willpower of the attacker. It is arguable that many attackers would be reluctant to act without the overwhelming advantage provided by a firearm, yet this proposition would be difficult to prove in an individual case.

The causation issue would take the court and the jury into the realm of speculation. In contrast to other products liability cases, which involve the issue whether the product should not have been made with the alleged defect, products liability suits against handgun manufacturers present the question whether the product should not have been made at all. Even if the defendant manufacturer had decided not to make handguns, firearms would presumably have remained generally available--their production and sale would not have been illegal. Thus, the person who injured the plaintiff might well have been able to obtain a handgun anyway. '[T]here is no good reason to suppose that persons intent on arming themselves for criminal purposes would not be able to do so even if the general availibility of firearms to the larger population were sharply restricted.' Weight & Rossi, supra note 17, excerpted in FEDERAL REGULATION OF FIREARMS, supra note 14, at 170.

Under a less stringent cause-in-fact standard, however, the plaintiff would be able to recover despite the possibility that the person who injured him could have carried out the crime even if the handgun manufactured by the defendant had been unavailable. The argument for causation would be simply that, but for the existence of the handgun and its capacity to cause harm, the injury actually suffered by the plaintiff would not have occurred as it did.

[40] Defendants have at times been held responsible for the intentional criminal acts of others. Such cases differ from those involving handgun manufacturers, however, in that the defendants in such cases were themselves at fault. In some cases, the defendant was negligent. See, e.g., State v. Sanchez, 96 Ariz. 95, 392 P.2d 567 (1964); RESTATEMENT (SECOND) OF TORTS §§ 448-449 (1965). In other cases, the fault was in selling a product with an undesired side effect. See Klages v. General Ordnance Equip. Corp., 240 Pa. Super. 356, 367 A.2d 304 (1976) (holding manufacturer of mace liable for plaintiff's gunshot wound after mace failed to repel plaintiff's assailant). No similar element of wrongfulness is involved in the sale of a handgun. See supra pp. 1915-18.

[41] The social cost of an average highway death in 1973 has been estimated at $200,000. See S. SPEISER, LAWSUIT 357 (1980). Assuming that handgun deaths are as costly as highway deaths, the costs to handgun manufacturers of the approximately 9,800 handgun murders each year, see Turley, supra note 10, at 42, could be as great as $1.96 billion in 1973 dollars.

[42] See Podgers, supra note 3, at 7.

[43] Several states do not require a license, a purchase application, or a waiting period before a handgun may be purchased. See Ronhovde & Sugars, Survey of Select State Firearm Control Laws, in FEDERAL REGULATION OF FIREARMS, supra note 14, at 201, 204-28.

[44] See S. SPEISER, supra note 41, at 370.

[45] 400 Mich. 425, 254 N.W.2d 759 (1977).

[46] See id. at 434, 254 N.W.2d at 763.

[47] Bojorquez v. House of Toys, Inc., 62 Cal. App. 3d 930, 933, 133 Cal. Rptr. 483, 484 (1976).

[48] See 400 Mich. at 451-58, 254 N.W.2d at 771-74.

[49] Id. at 445, 254 N.W.2d at 768. 'The attractive nuisance doctrine, an exception to the general rule limiting the liability of landowners for injuries to trespassers, is based on the child's inability to appreciate danger and his inclination to explore without regard to the risk.' Id. (footnote omitted). The common law also imposes a rule against entrusting children with dangerous instrumentalities. See id. at 443-49, 254 N.W.2d at 767-70.

[50] See id. at 445, 254 N.W.2d at 768.

[51] See W. KEETON, D. OWEN & J. MONTGOMERY, supra note 6, at 41; W. KIMBLE & R. LESHER, supra note 5, § 1, at 2; Phillips, supra note 6, at 102; Wade, supra note 6, at 756-57. Distributors of many products--such as prescription drugs--are required by law to limit distribution. These restrictions, however, are imposed by legislatures, not courts. See, e.g., Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 353(b)(1) (1982); IOWA CODE §§ 204.5-204.6 (1982).

[52] See U.S. Conference of Mayors Policy Statement on Handgun Control, reprinted in M. YEAGER, DO MANDATORY PRISON SENTENCES FOR HANDGUN OFFENDERS CURB VIOLENT CRIME? at xi (1976) ('[T]hose who possess handguns cannot be divided into criminals and qualified gun owners . . ..').

[53] There is evidence that convicted felons are more likely to commit homicides than are nonfelons. See Kleck & Bordua, supra note 14, reprinted in FEDERAL REGULATION OF FIREARMS, supra note 14, at 105. Although it is possible that a distribution system that made it more difficult for felons to purchase handguns would reduce handgun injuries, a restricted system still might not prevent felons from obtaining handguns. See id., reprinted in FEDERAL REGULATION OF FIREARMS, supra note 14, at 106. Indeed, it is already a violation of federal law knowingly to sell firearms to a convicted felon. See 18 U.S.C. 922(d)(1) (1982).

[54] For example, automobile accidents cost thousands of lives each year, and driver error is a major factor in most accidents. See H. ROBERTS, THE CAUSES, ECOLOGY, AND PREVENTION OF TRAFFIC ACCIDENTS 51-60 (1971). A jury could conceivably find that indiscriminately selling an automobile to any nonminor with enough money to buy one is a 'defective' method of distribution and that manufacturers should therefore compensate all victims of automobile accidents. But see Moning v. Alfono, 400 Mich. 425, 450, 254 N.W.2d 759, 771 (1977) (dictum) ('The utility of providing automobile transportation is deemed by society to override the magnitude of the risk created by their manufacture.').

[55] 'Proof of the defect alone is insufficient. There must also be evidence that the defect caused the accident.' Fenner v. General Motors Corp., 657 F.2d 647, 650 (5th Cir. June 1981) (Unit B), cert. denied, 455 U.S. 942 (1982); see 2 L. FRUMER & M. FRIEDMAN, PRODUCTS LIABILITY § 16A[4 parallel e parallel i] (1984); Koob, Causation in Product Design Liability, in PRODUCT DESIGN LIABILITY, supra note 5, at 225, 227. In some jurisdictions, the plaintff may be required to prove only that the defect was a 'substantial factor' in bringing about his injury, see, e.g., Cronin v. J. B. E. Olson Corp., 8 Cal. 3d 121, 127, 501 P.2d 1153, 1157, 104 Cal. Rptr. 433, 437 (1972); in others, he may be required to prove that 'but for' the defect, his injury would not have occurred, see, e.g., Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 99, 337 A.2d 893, 901 (1975). According to the Restatement, the 'substantial factor' test differs from the 'but for' test only when either of two sources would independently be sufficient to produce a result. See RESTATEMENT (SECOND) OF TORTS § 432 (1965). A handgun alone, without the act of the attacker, would not produce an injury.

Legal or 'proximate' cause must also be shown. See Koob, supra, at 228. The predominant standard for proximate cause is reasonable foreseeability of injury. See W. KIMBLE & R. LESHER, supra note 5, § 251, at 274. In some jurisdictions, a person has no duty to foresee the unlawful acts of third parties. See, e.g., Bennet v. Cincinnati Checker Cab Co., 353 F. Supp. 1206, 1210 (E.D. Ky. 1973) (applying Kentucky law). Other jurisdictions require that one take precautions against foreseeable criminal acts. See, e.g., Campodonico v. State Auto Parks, Inc., 10 Cal. App. 3d 803, 807, 89 Cal. Rptr. 270, 273 (1970). In the first group of jurisdictions, proximate cause would be difficult to prove under a defect-in-distribution theory; in the second, proof should present no major obstacle if cause in fact could be shown. Because proximate cause is a matter of policy, see W. PROSSER, supra note 19, at 236-37, its doctrinal formulation should be subsumed by the policy determination of whether manufacturers are liable for illegal shootings involving their handguns.

[56] See supra note 55.

[57] Most handgun murders result from disagreements between people who know each other. See G. NEWTON & F. ZIMRING, FIREARMS & VIOLENCE IN AMERICAN LIFE 43 (1969).

[58] J. WRIGHT & P. ROSSI, WEAPONS, CRIME, AND VIOLENCE IN AMERICA: EXECUTIVE SUMMARY 16 (1981).

[59] There is already a 'substantial interstate commerce in 'crime guns." Id. at 17.

[60] 571 F. Supp. 192 (E.D. La. 1983).

[61] Id. at 204.

[62].

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

RESTATEMENT (SECOND) OF TORTS § 520 (1965).

[63] See Richman, 571 F. Supp. at 200-04.

[64] Id. at 202.

[65] Id. at 204.

[66] See Hogan, Federal Regulation of Firearms: The Issue in Brief, in FEDERAL REGULATION OF FIREARMS, supra note 14, at 1, 2.

[67] See Montgomery & Owen, supra note 38, at 825-27.

[68] Gun Control Act of 1968, Pub. L. No. 90-618, § 102(d)(1), 82 Stat. 1214, 1216 (codified at 18 U.S.C. § 922(d)(1) (1982)).

[69] See, e.g., Cullum & Boren-McCain Mall, Inc. v. Peacock, 267 Ark. 479, 482, 592 S.W.2d 442, 444 (1980); Franco v. Bunyard, 261 Ark. 144, 147, 547 S.W.2d 91, 93 (1977); Angell v. F. Avanzini Lumber Co., 363 So. 2d 571, 572 (Fla. Dist. Ct. App. 1978).

[70] See Muncy v. Magnolia Chem. Co., 437 S.W.2d 15, 19 (Tex. 1968).

[71] See Jones v. Hittle Serv., 219 Kan. 627, 632, 549 P.2d 1383, 1390 (1976).

[72] Gun Control Act of 1968 § 102, 18 U.S.C. § 922 (1982).

[73] See Ronhovde & Sugars, supra note 43, in FEDERAL REGULATION OF FIREARMS, supra note 14, at 204-28.

[74] See N.Y. PENAL LAW § 400.00(12) (McKinney 1983).

[75] See id. § 400.00(1).

[76] In the United States Congress alone, bills to regulate handgun ownership were proposed in 1969, 1970, 1972, 1973, 1974, 1976, 1978, and 1980. See Hogan, Major Congressional Action Since 1968, in FEDERAL REGULATION OF FIREARMS, supra note 14, at 5, 15-17.

[77] See, e.g., Mavilia v. Stoeger Indus., 574 F. Supp. 107, 111 (D. Mass. 1983); Richman v. Charter Arms Corp., 571 F. Supp. 192, 198 (E.D. La. 1983); cf. Martin v. Harrington & Richardson, Inc., No. 83-C-310 (N.D. Ill. July 15, 1983) (available Apr. 1, 1984, on LEXIS, Genfed library, Dist file) (holding that a federal court sitting in diversity should not attempt to create a new cause of action against handgun manufacturers). On January 20, 1984, a Texas jury refused to find a handgun defective merely because its risk outweighed its utility; one juror stated that "[w]hether or not we could remake the law seemed to be our big point of debate.' Babington, Jury Finds No Liability in Sale of Cheap Pistol, NAT'L L.J., Feb. 6, 1984, at 19, col. 2.

[78] See, e.g., Peer, McGuire & Clausen, supra note 35, at 42 ('[Plaintiffs' attorney Stuart] Speiser . . . believes the courts are a far more efficient vehicle than Congress for dealing with gun control, since judges and juries enjoy immunity from the political pressures of the gun control lobby.'); Podgers, supra note 3, at 5 ('R. Windle Turley [, who has brought several suits against handgun manufacturers,] adds that civil litigation can pursue handgun control 'independent of the political pressures and influence that are the reality of the handgun world.' Handgun control, he says, 'is not going to come legislatively any time soon, if ever.''); Note, supra note 6, at 798 ('[T]he controversy surrounding [gun control] intensifies the usual difficulties of legislative action. Furthermore, the investment of time and money necessary to enact legislation is ultimately rejected as a result of objections to peripheral issues or obstruction by special interest groups.' (footnotes omitted)).

[79] See Podgers, supra note 3, at 40 ('[Handgun manufacturer liability,] if adopted by courts, would raise questions of whether handguns can be sold. 'I regard that as a political question, not a question of tort law . . ..'') (quoting Prof. Victor Schwartz); cf. Bojorquez v. House of Toys, Inc., 62 Cal. App. 3d 930, 933, 133 Cal. Rptr. 483, 484 (1976) ('Here [the plaintiff] wants us to hold the retailer and distributor negligent for selling toy slingshots to the class of persons for whom they were intended--the young; in effect, she asks us to ban the sale of toy slingshots by judicial fiat. Such a limitation is within the purview of the Legislature, not the judiciary.').

[80] Eighty percent of Americans support mandatory penalties for the use of a gun in a crime. See Blackman, Conceptual, Constitutional, Enforcement and Experimental Problems Involved in Mandatory Sentencing for the Unlicensed Carrying/Possession of Handguns, reprinted in FEDERAL REGULATION OF FIREARMS, supra note 14, at 59, 59. But cf. M. YEAGER, supra note 52, at 25-26 (1976) (arguing that mandatory prison sentences for handgun offenders are ineffective and counterproductive).

[81] See R. BLOCK, VIOLENT CRIME 88-91 (1977); G. NEWTON & F. ZIMRING, supra note 57, at 40-48; DeZee, Gun Control and Federal Legislation, in VIOLENT CRIME: HISTORICAL AND CONTEMPORARY ISSUES 39, 43-45 (J. Inciardi & A. Pottieger eds. 1978).

[82] See, e.g. Benenson & Kates, Handgun Prohibition and Homicide: A Plausible Theory Meets the Intractable Facts, in RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT 91 (D. Kates ed. 1979).

[83] See J. WRIGHT & P. ROSSI, supra note 58, at 9-20; Kleck & Bordua, supra note 14, reprinted in FEDERAL REGULATION OF FIREARMS, supra note 14, at 93-106; Lizotte & Bordua, Firearms Ownership for Sport and Protection: Two Divergent Models, 45 AM. SOC. REV. 229 (1980); Murray, Handguns, Gun Control Laws and Firearm Violence, 23 SOC. PROBS. 81 (1975).

[84] J. WRIGHT & P. ROSSI, supra note 58, at 4.

[85] Id. at 3-4.

[86] Id. at 8.

[87] See Twerski, Weinstein, Donaher & Piehler, The Use and Abuse of Warnings in Products Liability--Design Defect Litigation Comes of Age, 61 CORNELL L. REV. 495, 526 (1976).

[88] Cf. In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069, 1090 (3d Cir. 1980) (holding that questions bearing on whether Japanese electronics firms violated antitrust and antidumping laws may be too complicated for a jury to decide).

[89] See supra note 39.

[90] 'Further, the ideological overtones of much of the published research in the area are such as to inspire little confidence in the scientific credibility of the results.' J. WRIGHT & P. ROSSI, supra note 58, at 20.