Seton Hall Legislative Journal
21 (1997): 31.
Posted for Educational use only.
The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
SATURDAY NIGHT. TEN P.M.: DO YOU KNOW WHERE YOUR HANDGUN IS?
E. Judson Jennings *Copyright © 1997 Seton Hall University Law Center & E. Judson Jennings
Table of Contents
I. INTRODUCTION ..................................................................... 31
II. INCIDENCE OF HANDGUN OWNERSHIP .......................... 34
A. Growth of Handgun Manufacture .................................................. 34
B. Gun Injuries in the United States .................................................... 38
III. GUN PROHIBITION IS NOT A VIABLE SOLUTION ........... 39
A. Philosophical Objections to Gun Bans ........................................... 41
B. Police Exemption from Gun Control .............................................. 43
IV. STRICT LIABILITY: COURT DECISIONS ........................... 44
A. 'Strict Liability is Gun Control' ...................................................... 45
B. The 'Erie Factor' .......................................................................... 47
C. Status of Gun Liability Decisions .................................................. 53
V. ULTRA-HAZARDOUS ACTIVITY AND GUN TRADING .. 55
A. Strict Liability: Economic Analysis ................................................ 56
B. Strict Liability as No Fault Liability ............................................... 59
C. The Restatement s 520 Factors ................................................... 62
D. Criminals and Intervening Cause ................................................. 65
VI. CONCLUSION .................................................................... 66
I. Introduction
Beginning in 1983, a series of lawsuits were brought against gun manufacturers and sellers seeking compensatory damages for gunshot victims. [1] The bases for these claims included negligent [Page 32] marketing, [2] product liability, [3] and strict liability for ultra-hazardous activity. [4] To date, the general success of this type of litigation has been limited, and claims of ultra-hazardous activity against gun distributors have, in particular, met with little success. [5] In fact, it has often been said by judges and by scholars that the courts have rejected the ultra- hazardous activity doctrine insofar as it might apply to the manufacture, sale, and marketing of handguns. [6] After reviewing [Page 33] the pertinent decisions, however, I have come to believe that there are two reasons to doubt that the issue has yet to be dispatched. The first is the untoward influence of the "Erie [7] factor" [8] in deterring many courts from adopting what would clearly be a change in existing law. The second is the persistent but false notion that strict liability is the wolf of gun control in sheep's clothing. For most of the states strict liability for those who engage in the ultra-hazardous activity of distributing handguns remains an open issue. I hope that this analysis will encourage the judges, in those jurisdictions which have yet to consider the issue, to analyze ultra-hazardous activity claims against handgun sellers in an open and objective manner. [9]
In other words, I propose to restore the consideration of questions arising in civil damages actions against handgun merchants to their proper context: whether the victim of a particular shooting should be compensated by those who intentionally introduce handguns into the stream of commerce. I believe that if the issue is evaluated on its merits, as a principle for allocating responsibility rather than one for controlling handguns, it will be resolved in favor of such liability in many of those jurisdictions which have yet to decide the issue, and even in some which have purportedly already decided against such liability.
Handguns are deadly and difficult to control. Although they account for significantly less than half of all gun sales, ninety percent of all gun misuse involves handguns. [10] A handgun which is free of any defect and which is sold with due care may nonetheless [Page 34] inflict serious or fatal injuries; handguns sold to legally qualified purchasers may be lost or stolen, winding up in the hands of untrained users or criminals. [11] The effect of these combined factors is to make handgun distribution an abnormally dangerous activity, [12] i.e., one which society tolerates notwithstanding its extraordinary risk, but sanctions by imposing upon those who derive a benefit from that activity the cost of compensating innocent victims.
A strict liability model has several advantages: (1) emphasis is on compensation of victims rather than on gun control; (2) costs are spread broadly to all participants in the activity, thereby reducing the chance that any one participant will be forced to abandon it entirely; (3) and those who choose not to arm themselves with handguns will be relieved of at least some of the cost of the dangerous activity.
This proposal is specifically addressed to handguns, which I believe the courts should treat as sui generis. [13] Unlike long guns, which are relatively safe, handguns are designed to be lethal, portable and concealable. They have no other useful function, have minimal accuracy and few safety features. Accordingly, characterizing handgun distribution as an ultra- hazardous activity simply recognizes the obvious: handguns are a major, unregulated, and extremely hazardous consumer product.
II. Incidence of Handgun Ownership
A. Growth of Handgun Manufacture
Handguns are relatively cheap to make, easily transported, and durable. Accordingly, it is virtually impossible to accurately ascertain [Page 35] the number of handguns currently in the United States, whether this amount is growing, or how many handguns are privately owned. [14] As the following chart indicates, the domestic manufacture of handguns has been a growth industry in the second half of this century. [15]
Wholesale Value of Firearms Manufactured in the United States as Estimated From Federal Excise Tax (in millions) [16]
Year Handguns Other Guns 1955 9 ............... n/a 1965 28 ............ n/a 1975 125 .......... n/a 1985 251 .......... 444 1987 253 .......... 383 1989 382 .......... 444 1991 422 .......... 456 1993 538 .......... 547 Domestic production figures provide only part of the picture. About one third of the handguns sold in the United States in recent years have been imported. [17] Combining domestic manufacture and import, the number of guns in the United States market increased from 1.9 million in 1983 to 4.7 million in 1990. [18] Those who have analyzed weapons distribution in the world economy report that the United States continues to be the leading producer and distributor of [Page 36] weaponry of all kinds, [19] and see no reason to anticipate a decline in future weapons production. [20] The collapse of the USSR has actually accelerated this grisly commerce. [21] Whereas during the Cold War, the United States and the other major arms merchant nations were subject to geopolitical constraints in selecting their customers, those constraints have virtually disappeared. [22] Analysts note that we are rapidly approaching a purely mercantile policy of international weapons trade, supplying for profit any and all who are willing and able to pay. [23]
The mercantile model applies well to the Persian Gulf War. The United States, which alone accounts for two thirds of all third world arms sales, [24] supplied sufficient weapons to Iraq and Iran to support a war in which over one million people were killed. [25] When Iraq invaded Kuwait, the United States, in its first "play or pay" war, spent fifty-two billion dollars in a war that was over in a manner of days. [26] As the agent of the United Nations, the United States recouped all of those expenses from other nations. [27] At the same time, American weapons manufacturers were able to showcase their wares to awed leaders around the world. [28] Business has been booming ever since, resulting in American arms sales of thirty-one billion dollars in 1993 alone. [29]
In sum, on both the domestic and the international scene, weapons [Page 37] manufacturers systematically and intentionally engage in production of lethal instruments. [30] Both the American and the world communities have chosen to permit this industry to survive, and indeed have helped it to flourish. While most agree that it would be better if nobody had weapons, so long as somebody has them, each of us may be better off armed. In essence, the community tolerates an industry engaged in an activity that the community itself finds abhorrent and inherently dangerous because that activity is considered essential. [31] By pumping weapons of all kinds into the world economy, the United States, at least indirectly, increases the incidence of weapons ownership within the United States. [32]
The quantitative increase in the number of handguns distributed in the United States private market in recent years is clear from the figures. [33] At the same time, there has also been an important qualitative shift in the kind of handguns sold. The traditionally favored six shot .38 caliber revolver, which used to account for about seventy-five percent of the domestic market, has been largely supplanted in popularity by the more lethal 9 mm pistol, which now commands a seventy-five percent share. [34]
Another important recent development is the shift in emphasis among gun advocates away from the recreational use of handguns (e.g., hunting, target shooting and collecting) towards the use of handguns for self-defense and household security. [35] At least six states [Page 38] enacted laws making it easier to carry concealed weapons during 1993 and 1994. [36] Smith and Wesson, a major manufacturer of guns, even started an advertising strategy for handguns explicitly targeted towards women and emphasizing the need for self- defense. [37] Likewise, scholars describing the benefits of private gun ownership have in recent years shifted their major focus to self-defense considerations. [38]
B. Gun Injuries in the United States
As gun manufacturers frequently remind us, a handgun is designed to achieve a single function: the rapid delivery of lethal force at close range. [39] The Department of Justice estimates that handguns were used to commit 13,200 homicides in 1992. [40] This represents nearly a thirty percent increase from the average 10,600 handgun homicides for the preceding five years. [41] It is reported that 38,000 deaths from gunfire occurred in 1993 and the number of gun deaths is expected to surpass the number of motor vehicle deaths as the second leading nonnatural cause of death before the end of the decade. [42] Reliable information on handgun injuries is less available. [43] Ellen Saxon, an advocate of gun control, reports that 36,500 children are injured and 5,050 children are killed by gunfire each year. [44] It has been estimated that the annual medical costs of treating gun victims is four billion dollars, [45] and that about [Page 39] 80 percent of these victims lack private medical insurance. [46]
The economic cost to society of gun injuries is increasing. Historically, the medical cost of treating gun injuries was relatively low: if the injury was at all serious, the victim either bled to death or suffered a massive and fatal infection. In the modern medical arena, replete with antibiotics, organ transplants, nerve and tissue grafting, open heart and open brain surgery, and life support for those in a coma, the gunshot patient is a trauma tour de force. Each serious gun injury may easily trigger medical costs amounting to hundreds of thousands of dollars and the permanently comatose victim will raise those costs into millions. Whether gun injuries are in fact on the increase is less important than the appreciation of the dramatically increased costs of treating those injuries.
III. Gun Prohibition is Not a Viable Solution
Like many of the terms employed in the debate over guns in our society, "gun control" has been used in misleading ways. [47] Although gun controls include registration of both weapons and owners, sales restrictions, point of sale screening of purchasers, and a host of other legitimate regulatory measures, the term "gun control" has most frequently been equated with gun prohibition by advocates on both sides of the question. As we near the end of the third decade of the ferocious debate about gun control that began with the Kennedy assassinations and the violent street riots of the late 1960s, the results of that great debate have been varied and inconclusive, both in the Congress and in the states. [48] Many gun "controls" have been imposed or strengthened, such as registration requirements, applicant screening, and prohibition of certain types [Page 40] of guns. [49] The Brady Law, only recently enacted, has perhaps already kept thousands of handguns from being purchased by criminals. [50]
On the other hand, escalating concerns about violence in our society have resulted in pressure to relax controls over gun ownership and use by law abiding citizens. [51] For example, Arkansas recently enacted legislation authorizing a person to carry up to three concealed weapons. [52] A University of Maryland study reported that recently enacted laws in several jurisdictions have similarly facilitated the carrying of concealed weapons. [53] The study concluded that there is a statistical correlation between such measures and an increase in the number of people killed by guns. [54]
While the ultimate efficacy of enacted gun control measures in reducing gun injuries is unclear, what can readily be seen is that there is no widespread acceptance of gun prohibition: current legislation and proposed extensions are directed toward regulating, not eliminating, gun ownership. [55] The disinclination toward complete gun prohibition is strongly exacerbated by three major considerations: fundamental philosophical objections to gun bans affecting all American citizens; [56] the universal acknowledgment that police and private security personnel should be exempt from any gun ban; [57] and the ease of circumventing gun control measures. [58] [Page 41]
A. Philosophical Objections to Gun Bans
The right of an individual American to bear arms may or may not be guaranteed by the Second Amendment. [59] The historical constitutional question is closer than has often been supposed. [60] The origins of the right to keep and bear arms under English law has been said to have arisen far before the invention of firearms, during the reign of Alfred the Great. [61] It has been argued that the Framers were specifically concerned with the right of individuals to arm themselves against the threat of an abusive sovereign, reflecting their own recent experience with the colonial government. [62] These notions were reinforced throughout the Nineteenth Century in America, as many private citizens found handguns a vital piece of equipment both on the frontier and in the rapidly growing and inadequately policed cities. [63]
An analysis of pro-gun scholarship reveals important underlying philosophical concerns. The gun proponent believes that a government of, by and for the people must cede to its subjects the ability to challenge governmental action that violates the compact [Page 42] with the people. [64] In this view the right to bear arms is a natural right of a citizen, or the society is not in fact either free or democratic. [65] This argument is characterized as consistent with Machiavelli's view that the citizenry needed always to be armed, that they might be called together to provide a defense when needed, and yet not be reliant upon a standing army which would itself become an instrument of oppression. [66]
Many Americans believe that the right to gun ownership is implicit in the concept of a free society and is moreover a central component of our American identity. Therefore, any law that significantly infringes private gun ownership will be met by constitutional attack. If those attacks fail, as I believe likely in the current political climate, civil disobedience will surely follow. Even if gun manufacture were completely outlawed, there would be a sufficient demand to revive the cottage gun industry of the colonial era, resulting in weapons far more dangerous than most of those circulating today. Additionally, unless the Fourth Amendment is also repealed, many or most of those who now own guns would continue to do so, satisfied that they hold the moral, if not the legal, high ground. No gun control legislation would effectively eliminate guns. Even if the Fourth Amendment were repealed [67] in order to recover the huge store of guns already in private hands, [68] the most draconian gun control laws would be enforced by police armed with guns. [Page 43]
B. Police Exemption from Gun Control
While many favor a universal right to be armed, nobody seems to want a truly universal ban. [69] The National Rifle Association admonishes that if guns are outlawed, only outlaws will have guns. That's not quite right. If guns are outlawed, only the military, the police, and outlaws will have guns; many "outlaws" will be those whose sole crime is refusing to surrender guns to the authorities. Thus, a truly universal ban on guns would necessarily entail a drastic reduction in the number of military and police personnel who are licensed, and often required, to regularly carry a loaded handgun.
Gun control today evidences some fundamental anomalies. Americans have a voracious appetite for more police, and particularly more police who are armed and on the street. This internal contradiction guarantees that all current gun control measures will fail. These exempted gun owners will continue to be the source of a significant number of gun injuries, both from lawful use of those guns and from unlawful use of those guns stolen from their legal owners. In either case, the social and economic costs to society of treating the resultant injuries remain the same.
C. Ease of Circumventing Gun Controls
The fundamental futility of pervasive gun controls would remain even if we radically limited the military, security and police exemptions. First, there is unquestionably a core of criminals who find guns useful in committing crimes, notably robbery, narcotics trafficking, and extortion. These predatory criminals would presumably have little difficulty obtaining guns on the illicit market, either domestically or internationally. [70]
Second, even if few law enforcement personnel carried guns on a regular basis, there would still be extensive resistance to gun [Page 44] controls by otherwise law abiding citizens. [71] The staunchest defenders of private gun ownership stress two primary themes: recreational hunting and personal security against criminals, particularly criminals who intrude upon private residences. [72] Although the rationality of these beliefs is open to question, [73] the sincerity with which they are held by a significant number of Americans guarantees that many otherwise law abiding citizens would have few qualms about circumventing gun control laws. [74] Moreover, while urban police have in recent years become much more concerned about gun control, it would seem logical that many individuals and agencies responsible for enforcing gun laws would be ambivalent about such a task. Given the huge number of handguns already in circulation in the United States, [75] the long life expectancy of the average gun, the Fourth Amendment prohibition against sweep searches, [76] and the feasibility of manufacturing guns and ammunition without sophisticated technology, we would necessarily expect that a large number of guns would continue to circulate throughout the country.
IV. Strict Liability: Court Decisions
Beginning in about 1983, gun injury victims filed a significant number of actions against gun manufacturers, importers, distributors, and dealers. [77] Many of these actions included claims that gun distribution is an ultra-hazardous activity giving rise to strict liability. [78] Thus far, the courts which have considered that specific question have generally refused to recognize such liability. [79] The following section is a re- examination of those decisions to understand why the courts did not actually address the merits of the ultra-hazardous activity strict liability theory. [Page 45]
A. "Strict Liability is Gun Control"
In reviewing the published decisions in which courts have rejected ultra- hazardous activity strict liability for gun distribution, it is apparent that the courts have in large measure misapprehended the effect of imposing strict liability on handgun merchants. This misconception was due to the way in which these cases arose and were presented. Many of these cases were the direct result of a campaign begun in 1983 to use civil litigation against gun manufacturers and sellers for the avowed purpose of driving handguns from the marketplace. [80] At the time, a group of litigation specialists came to believe that an alternative to outright gun control legislation was the establishment of strict liability for the manufacture of Saturday Night Specials, [81] which they hoped would effectively put manufacturers out of that line of business. [82] [Page 46]
Reacting to this explicit strategy, the courts rejected what they perceived as the invitation to judicially implement gun prohibition because of its invariable result of driving weapons manufacturers out of business. [83] These "economic ruination" arguments are part of a widespread and increasingly successful effort to reduce the scope of strict product liability and to reduce the responsibility for tortious acts [84] on the premise that such liabilities enhance business costs. The fallacy of these arguments is reductio ad absurdum: every social measure affects the cost of production, yet adverse economic impact can never alone establish that the measure is unwarranted. [85] On occasion, courts confronted with gun liability decisions have noted this distinction. [86]
Unfortunately, many other courts confronting these difficult issues have blurred the distinction. In this respect, gun liability decisions have exemplified the dangers of "symbolic litigation." Unlike test case litigation, which seeks to establish a major but specific [Page 47] principle of law, symbolic litigation constitutes the effort to utilize the judicial process as a bully pulpit for issues that have no actual relationship to the litigation.
B. The "Erie" Factor
Test cases involving questions of federal law have enormous potential. For example, in one small group of cases, reformers obtained from the highest court in the nation the declaration that de jure segregation violated the federal constitutional rights of minority students even if they received equivalent educational resources. [87] Since the issues were federal, a single definitive holding literally and instantly changed the law of the land.
Handgun liability cases, on the other hand, seek to change existing law on a state by state basis; an effort which can succeed only, if at all, by moving forward in fits and starts over many cases and many years. For example, in a similar context, the liability of the motor vehicle manufacturer for breach of warranty was established only after nearly and half century of litigation, as the courts and then the legislatures grappled with evolving and occasionally revolutionary doctrines that are now fundamental components of our law. [88] Specifically, the New Jersey Supreme Court noted that, while the Supreme Court of Washington had launched the attack on privity in automobile warranty cases in 1932, by 1960 "only a minority of jurisdictions ha [d] . . . departed" from the privity requirement. [89] When cases seeking to change state law are brought in state courts, they are litigated in the traditional way, with full discovery, the trial of factual issues, and the consideration of legal issues by appellate courts with the benefit of a full record that lays out each of the factors that bears upon the legal issues. The gun liability cases, however, have frequently been decided by federal courts which must, sometimes reluctantly, [90] interpret state law. [91] [Page 48]
When the claim is a novel one, the state law is by definition unclear, having not been addressed by the highest court of the controlling jurisdiction. The role of a federal court in discharging its Erie function militates against law reform. In fact, most of the federal courts that have passed upon strict liability for gun manufacture and distribution have included as a central part of their decision the responsibility under Erie to exercise restraint in predicting a possible change in state law. [92] Judge Nichols of the Eleventh Circuit described the policy behind this cautionary approach:
The duty of federal courts deciding common law cases under diversity would seem to be, if changes in state law are to be made, to leave it to the state courts (or, of course, the legislature) to make them. To take the lead would be contrary to the teaching of Erie. [93]
In fact, a major premise of the Erie decision was that the federal courts should get out of the business, into which they had been put by Swift v. Tyson, [94] of encouraging national uniformity by looking to the common law of all of the states in deciding an issue not controlled by state statute. [95] One of the perceived benefits of the Swift "general common law" approach was to foster more rapid acceptance of novel [Page 49] common law principles, as well as hastening the demise of those which had become obsolete. [96] Thus, it is not at all surprising that even those federal courts which have undertaken the Erie analysis without explicitly recognizing this "hesitation" principle have so far uniformly declined to expand strict liability into this concededly novel area. [97]
While federal courts may directly undertake to ascertain the applicable state law on novel questions, many jurisdictions offer an available alternative in the form of a certification of the unsettled state law question to the highest court of the state. Federal courts have successfully certified questions involving strict liability for gun manufacture and distribution to the highest courts of Oregon [98] and the District of Columbia. [99] Louisiana has, however, declined to accept such certification. [100]
In 1960, the United States Supreme Court credited Florida with "rare foresight" for enacting a certification statute in 1945. [101] The use of certification has increased drastically, with the adoption of the Uniform Certification of Questions of Law Act [102] by over half of the jurisdictions. [103] It has been reported that by 1994 only six states had no [Page 50] certification procedure. [104] While certification has provided the states with a more direct role in deciding Erie questions and has been endorsed by the United States Supreme Court, [105] it presents some vexing problems of its own. Procedurally, certification often entails substantial cost and delay, [106] and there is no guarantee that the state court will agree to decide the question. [107]
Substantively, the precedential value of a decision issued by a state court which has accepted certification raises several questions. [108] The most serious is whether certification in effect requests state courts to render an advisory opinion. [109] It has been held that a certified [Page 51] question on an issue for which there is no state law precedent and which will effectively control the disposition of the case at bar does not constitute an advisory opinion. [110] It has also been stated that "[a] decision by the state supreme court in response to the certified question will carry with it the same precedential value as other supreme court decisions." [111]
However, a certified question, although often accompanied by a statement of facts, [112] differs from a question which arises and survives the full process of trial and intermediate appellate review. For example, the certified question may be poorly drafted. [113] Indeed, "some . . . courts . . . freely recharacterize or restate the question . . . [while] others courts refuse to go beyond the question as certified." [114] Furthermore, the record is often incomplete. [115] Such a deficiency was recognized by the New York Court of Appeals, which declined to answer a certified question regarding hedonic damages when a similar issue was pending in the state's appellate division. [116] The court specifically noted the policy of addressing important questions of state law only after they have percolated through decisional processes of the trial and intermediate appellate courts. [117] [Page 52]
Although certification is typically available to either the trial court or the court of appeals, most certifications are made by the former. It is most efficient to first identify the controlling unresolved state law question and then certify that question to the state court for the appropriate rule to apply to the facts at bar when the matter is considered on the merits by the referring court. However, the United States Supreme Court may have raised some doubts about this model, albeit indirectly, in Salve Regina College v. Russell. [118] The Court held that the court of appeals should review de novo a federal trial court's determination of state law because it serves to clarify the issues as well as to make judicial administration more efficient. [119]
If we ignore the concern of the litigants for a timely and straightforward resolution of their dispute, the certification process might work best if the trial judge makes a provisional prediction of the unresolved state law, decides the case on a full record, and leaves to the court of appeals the discretionary decision to certify the question to the state court. One wonders whether this cure is not worse than the disease. [Page 53]
C. Status of Gun Liability Decisions
When one considers both the inappropriate emphasis on the "gun liability is gun control" rhetoric and the Erie factor, it is clear that the actual status of the various gun distribution liability theories, including strict liability for ultra-hazardous activity, is far from settled. Insofar as the issue remains a question of state law, [120] a definitive declaration of state law must come either from legislation or a decision from the highest court of the state.
To date, the highest court of Michigan has rejected strict liability for gun manufacture, distribution or ownership in a case originating within its jurisdiction, [121] while the highest courts of Oregon [122] and the District of Columbia [123] have rejected liability for manufacture and distribution on questions certified to them from the federal courts. The highest court of Maryland, in an Erie certification proceeding, adopted a novel theory of strict liability for a specific class of handguns, the Saturday Night Special. [124] However, the effect of that decision was limited by subsequent legislation which prohibits the sale of Saturday Night Specials, but prevents [Page 54] recovery by the victim shot by a criminal using such a weapon. [125]
The highest court of Hawaii has declined to impose liability in a gun injury case, but did not consider an ultra-hazardous activity claim. [126] In addition, intermediate appellate courts in Florida, [127] Louisiana, [128] Illinois, [129] Missouri, [130] Texas, [131] and the State of Washington have rejected such claims. [132] Trial courts in Delaware [133] and Pennsylvania [134] have similarly rejected such claims. In addition, federal courts applying the Erie doctrine have interpreted the law of Florida, [135] Louisiana, [136] New Mexico, [137] Texas, [138] Illinois, [139] [Page 55] Ohio, [140] and Massachusetts [141] to preclude such strict liability. Thus, the question of strict liability for gun manufacture and distribution, having only been definitely resolved in Maryland, has been considered in connection with only fifteen jurisdictions. [142]
Tabulation of Gun Liability Decisions
Controlling statute precluding liability 1 MD Opinion from the highest court responding to certified question precluding liability 3 DC OR MI Intermediate appellate decision declining to adopt new rule of liability 6 TX FL LA IL MO WA Trial decision so declining 2 DE PA Federal court ruling that interpreted state law as not imposing such liability 3 NM OH MA
Total 15 In summary, a careful reading of the gun liability decisions supports the conclusion that the courts have not shot down such liability in irrefutable terms. Rather, the rhetoric of gun prohibition, the inherent inertial caution mandated by Erie, and the simple fact that the great majority of jurisdictions have yet to decide the question, warrant an ongoing and objective consideration of the merits of strict liability.
V. Ultra-Hazardous Activity and Gun Trading
The model of strict liability for ultra-hazardous activities may be proposed for handgun manufacture, distribution, ownership, and use. [143] It may be applied universally to all handgun injuries, or may exempt handgun injuries caused by lawful police use of force. The merits of these different approaches have been considered by [Page 56] scholars, and must ultimately be determined by the courts on a case by case basis, or by the legislatures. I contend that the debate is not over, but rather has yet to really begin. In this section, I will briefly outline the reasons which I believe support the contention that placing handguns in the stream of commerce for ultimate sale to private citizens is an ultra-hazardous activity which should give rise to strict liability for each entity engaged in it.
A. Strict Liability: Economic Analysis
We have earlier seen the futility of gun prohibition as a response to gun violence. [144] One of the limitations of the "war on guns" philosophy that underlies gun prohibition is that it does not provide a rational framework for a more sophisticated analysis of the problem, one which would better accommodate competing interests in the community. The National Rifle Association slogan claims that "Guns Don't Kill People. People Kill People." This provocative aphorism is, however, too simple. People armed with guns are much more efficient killers than those without guns. [145] Contrary to the rhetoric on both sides, the debate must move beyond the question of outright prohibition to explore the extent of liability of those who engage in an ultra-hazardous activity.
The reluctance of legislatures to prohibit private handgun ownership, or to prohibit manufacture and distribution of handguns in the private marketplace, has no relevance in determining the standard of civil liability for those who manufacture or distribute handguns for such private use. In determining civil liability for individual injuries, the prevailing standard of ordinary negligence is flanked on either side by such doctrines as qualified immunity and strict liability. Qualified immunity typically favors the tortfeasor by limiting his liability to instances of malicious, intentional, or reckless conduct. Strict liability favors the victim by imposing liability without negligence. In some situations, the public sense of morality provides the basis for creating a special rule, as where police officers are protected from liability for their negligent [Page 57] conduct in pursuing [146] or apprehending [147] criminal suspects. In others, an economic analysis approach suggests that an activity which society countenances as lawful nonetheless entails risks which should be allocated in a designated way, by placing those risks upon those who are in the best position to minimize them or to bear their costs. [148]
Economic analysis, properly applied, is indeed a major factor in determining whether to extend the parameters of tort liability. One of the major reforms of all of Twentieth Century consumer law was the abolition of the privity requirement in cases involving consumer products. The New Jersey Court, struggling with the search for new doctrine in products liability involving automobiles in the landmark Henningson decision, identified one of the crucial common threads as "the placing of goods in the channels of trade." [149] However, several of the judges who have written about gun liability have not ventured into a careful consideration of this more complex economic analysis but have limited their discussion to the claim that gun liability is tantamount to gun prohibition. [150] [Page 58]
Imposing liability on gun users and owners and requiring such individuals to acquire liability insurance is appropriate in economic analysis terms. This would not differ substantially from the current universal imposition of such costs upon those who own and operate motor vehicles. However, the situation is complicated in the case of handguns by additional factors. For example, many handguns are stolen from lawful purchasers and many handgun injuries are inflicted by criminals. In either case, the owner or user proves a scant resource for the recovery of damages, and will certainly be uninsured. These special factors warrant exploration of the propriety of extending liability to those who market the product. [151] Under an economic model, the imposition of strict liability, and perhaps mandatory liability insurance, upon those who participate in the handgun market will provide the innocent victim with an economic resource adequate to compensate him for the injuries inflicted. [152]
In addition, imposing strict liability upon those who market handguns for private use will provide an incentive to accelerate the development of hand weapons. This will further the goals of police in preventing crimes and apprehending criminals and of private citizens in defending themselves and their families. John Alexander, the Director of the Special Technologies Group at Los Alamos National Laboratory, has articulated this goal in connection with several current military projects, stating "you need other [nonlethal] sorts of force options." [153] Some of the troops recently dispatched to conduct the final phases of United States operations in Somalia were issued "stinger grenades," sticky foam, and riot [Page 59] control gear suggested by Los Angeles police officers serving army reserve duty. [154]
B. Strict Liability as No Fault Liability
The central question is whether the activity of intentionally introducing a particular product into the stream of commerce should, from the standpoint of society as a whole, result in strict liability, which is a form of No Fault Liability. Indeed, one New Jersey court has remarked that "in New Jersey the governing principles of strict liability in tort and the implied contractual warranties are essentially identical." [155]
The fault based model of liability provides the major foundation for allocating risk, but may be modified when necessary to overcome one or more of the inherent limitations it entails. Under the traditional fault model, establishing liability in any given case is time consuming and expensive. Additionally, compensation is subject to such vagaries as the financial responsibility of the wrongdoer. Thus, many who suffer injury receive no compensation.
In the Twentieth Century, no fault alternatives have been created through legislation to address each of these concerns. For example, workers compensation laws recognize that widespread limited compensation for those injured in the scope of their employment minimizes the cost to society of untreated worker injury and maximizes the flow of benefits to the injured party. [156] Rather than having the benefits flow to such intermediaries as attorneys, these laws retain an incentive to the employer to reduce workplace accidents. [157]
Likewise, No-Fault automobile insurance programs recognize that motor vehicles provide a universal benefit to drivers, and present universal risks to drivers and nondrivers alike. [158] Accordingly, it is equitable to impose upon those who benefit most [the vehicle owners] the cost of insuring compensation for injuries caused in [Page 60] the course of the activity. [159] A common theme underlying such strict liability statutes is that a widespread activity with substantial social and economic benefits to society is nonetheless associated with significant risks which should be managed in an equitable and effective manner.
Liability without fault is not the exclusive province of the legislature. Early common law courts employed strict liability concepts in such varied areas as trespass and defamation, in recognition of the value to society as a whole of protecting real property rights and one's reputation in the community. [160] For well over a century, the courts have fashioned a pragmatic and carefully tailored set of guidelines to deal with a variety of different activities which, while not prohibited, entail risks to the community that cannot be removed by the exercise of due care. Given the welter of complex factors that must be considered in determining whether to impose strict liability for a particular activity, these varied situations have been grouped together under the general rubric of strict liability for engaging in an "ultra-hazardous" or "abnormally dangerous" activity. [161]
The earliest application of strict liability to an ultra-hazardous activity in the English common law was the harboring of dangerous animals, which imposed upon their keeper strict liability in the event of an escape. [162] The doctrine has never been applied to all animals, but only to those held to be "dangerous," a determination which is made on a case by case basis, and which depends upon the standards of the relevant community. [163]
The most notorious application of the doctrine was the landowner's liability imposed in Rylands v. Fletcher, wherein the construction of a water reservoir in a neighborhood devoted primarily to coal mining was determined to be a "non-natural" use of the land, imposing upon the owner strict liability for the damage [Page 61] caused by the reservoir flooding the neighboring lands. [164] As Prosser summarized the matter: "[i]n determining what is a "non- natural use" the English courts have looked not only to the character of the thing or activity in question, but also to the place and manner in which it is maintained and its relation to its surroundings." [165] The doctrine has found important modern applications in such jurisdictions as New Jersey, which has applied the doctrine to impose liability for harm caused by pollutants. [166]
The gun manufacturing industry is a logical subject for liability in the category of inherently dangerous activities. Unlike knives, poisons, and a host of other products, handguns that injure or kill achieve the very purpose for which they were designed. [167] Handguns are intentionally designed to ensure portability, concealment, ease of use, and lethal power. Handgun distribution therefore constitutes the introduction of a lethal instrument into the stream of commerce. These lethal characteristics of handguns have become the basis of recent marketing strategies of American gun merchants. Smith & Wesson, recognizing that the game hunter has become an endangered species, developed a marketing campaign directed at women, designing a "LadySmith" handgun described in advertisements as elegant but still fully functional. [168] The contention of gun advocates that if a larger number of private citizens own guns, criminals will be deterred, also depends upon the premise that guns are lethal instruments likely to severely injure the criminal. [169] [Page 62]
C. The Restatement s 520 Factors
Although the extension of strict liability into new areas always entails a pragmatic assessment of the individual factors involved in each new situation, a list of six factors which have often been found important in making that assessment is included in Restatement s 520: (1) the extent of the risk; (2) The likelihood of harm; (3) the efficacy of reasonable care in controlling the risk; (4) whether the activity is common; [170] (5) the propriety of the activity in relation to its location; and (6) whether the value to the community is outweighed by the danger. [171]
The first two factors clearly apply to handgun distribution, based upon the very nature of the product. Handguns are specifically designed to inflict lethal force, are inherently inaccurate, and can be easily stolen and concealed. [172] Whether handguns could be better designed to control the risk from purely accidental injuries poses an interesting question. Clearly, the use of better safeties would substantially reduce the risk of harm. The problem is that handgun owners concerned about protecting themselves and their families want the capability of instant fire, which would make handguns with such features less salable in the very market with which we are concerned.
The last three factors comprise the core issues which courts must resolve in determining whether intentionally placing handguns in the stream of commerce for private purchase is an abnormally dangerous activity. The resolution of each of these issues requires a careful assessment of handgun distribution in light of the community standard. This notion has been recognized by scholars who analyzed ultra-hazardous activity cases well before it was suggested than handgun distribution might constitute such an activity. [173] [Page 63]
The use of a community standard has both positive and negative consequences. On the positive side, the community standard approach recognizes that the nation is divided on the risks and utility of private handgun ownership. Accordingly, the issue should be determined on the level of individual states, or even of local or regional communities. On the negative side, gun traders will contend that the uncertainties and variations of local standards will unfairly require them to assess a risk they cannot rationally measure. However, it does not seem that the limited ability to predict the risk will prevent the private handgun distribution system from adjusting the price of handgun sales to reflect additional costs incurred as various locales consider and adopt a position which imposes liability. Nor for that matter would insurers be precluded from adjusting their premiums to reflect actual claims experience as they have in other major insurance markets.
The utility of community standards is further enhanced when we consider an additional question: who should apply the community standard in a given case? The determination may be appropriately made by a legislative process in which the elected representatives of the community balance the competing issues involved in evaluating a given activity as inherently dangerous. This is in effect what occurred in Maryland when the judicial determination that Saturday Night Specials were inherently dangerous was modified by subsequent legislation that superseded the court's specific holding but banned the manufacture of such devices in the State. [174] The legislation may be uniform throughout a state, or there may be local legislation reflecting the values of an individual community. In states like New York, with a large and widely varied group of communities, New York City may have standards that differ from those of Oneonta. [175]
In the absence of legislation, the question of community standards should be determined similarly to other issues of this type: if the matter is sufficiently clear one way or the other, the judge may [Page 64] decide it as a matter of law. [176] If, as will likely be the case, there is no clear answer, then a jury should determine the question. [177] This notion of community standards is an important component in deciding common negligence questions and has been particularly refined in cases involving obscenity where the right to free speech must be protected. [178]
It has been suggested that handgun manufacture and marketing should be considered a common use as a matter of law. [179] This assertion ignores the wide divergence of community standards on this issue throughout the United States. Opinion polls consistently indicate that citizens seek to reduce the number of handguns in private hands notwithstanding legislative reluctance to impose strict gun controls. Moreover, I believe there is another concern operating here. Strict liability has sometimes been an interim phase for an emerging technology, as in the case of aircrafts. [180] It has also been a permanent standard for a clearly useful activity, as in the case of electricity. [181] However, there is room for a third model: what about an activity which was once both common and useful but which has become, with changing social patterns, too dangerous for the relevant community?
A further issue presented by the Restatement s 520 formulation is whether the relevant community standard depends on where the activity is conducted. Handgun manufacture is global. Handguns are designed for easy, convenient transport and ease of concealment, which make gun commerce both national and global. [182] The United States is a leading gun consumer by all measures: tradition and culture, incidence of gun ownership, and number of gun injuries. It is therefore disingenuous for any handgun [Page 65] manufacturer to claim that it could not reasonably foresee that its product would become a part of the stream [indeed river] of handgun commerce. Those states which have enacted strict gun ownership, sale, and manufacturing controls have uniformly found that guns continue to flow into and around their state because of more permissive laws in other jurisdictions. [183] Those other jurisdictions are not just contiguous neighbors: New York and New Jersey gun commerce, subject to sharp restrictions on the screening and quantity of gun purchases, is fed by Georgia and Florida, which do not limit the number of handguns that may be bought in a single transaction. [184] Accordingly, it is appropriate to allow each community to apply the Restatement s520 factors to handgun distribution. [185]
D. Criminals and Intervening Cause
Even if the Restatement s520 factors on balance militate in favor of recognizing strict liability for handgun distributors, many handgun injuries are inflicted by persons engaged in criminal activity, often using a weapon stolen from a legitimate purchaser. [186] Gun advocates have frequently argued, and with a good success rate, that any responsibility a manufacturer might otherwise have for its products is obviated when the agent of a particular injury is a criminal. [187]
The superseding cause argument is based upon the illogical anachronism that an injury has a single discrete cause. Modern tort principles routinely encompass multiple causation, including the plaintiff's own fault, by asking juries to assess the percentage [Page 66] liability of each of the causal agents. [188] Modern tort law frequently imposes a duty to reduce a foreseeable risk of criminal activity. [189] As the New Jersey Supreme Court stated in holding that a store owner is under a duty to protect its customers against the foreseeable criminal acts of third persons, "[i]f the reasonably prudent person would foresee danger resulting from another's voluntary criminal acts, the fact that another's actions are beyond defendant's control does not preclude liability." [190]
Given the established patterns of handgun commerce in this country, both legitimate and illicit, the foreseeability of criminal misuse of a handgun placed in the stream of commerce for private purchase seems clear. However, that determination, along with the others entailed in the strict liability analysis, may be made by the state courts which will continue to grapple with the complex questions presented in this emerging area of liability on a case by case basis.
VI. Conclusion
Many are tired of the gun debate, which has commanded great public attention in national politics since the abhorrent cluster of assassinations of some of our most cherished political, social, and cultural heroes in the sixties and seventies, [191] and the urban [Page 67] riots of 1968-69. However, that debate has often flared in our society almost from the time the Republic was founded. It is therefore not likely to be definitively resolved. It is time to refine the discussion by identifying and resolving narrower issues of responsibility and liability. Although those courts which have issued decisions have thus far been reluctant to announce a new principle of strict liability for merchandising handguns in the private market, I have shown that many of those decisions were either constrained by the inertial conservatism implied by the Erie doctrine or distracted by the rhetoric of the handgun prohibition debate. These decisions have, therefore, preserved the hope that individual state courts confronting the question in the context of a fully developed trial record will see the matter differently.
* Professor, Seton Hall University School of Law. A.B., Princeton University (1964); J.D., Georgetown University School of Law (1967). The Author wishes to acknowledge the able assistance of Lisa Perez (c) 97).
[1]. See Elaine F. Weiss, Guns in the Courts, in Gun Control 168 (Robert Emmit Long ed., 1989).
[2]. See K-Mart Enterprises of Florida v. Keller, 439 So. 2d 283 (Fla. Dist. Ct. App. 1983), reh'g denied, 450 So. 2d 487 (Fla. 1984) (holding that a retailer who did not comply with federal firearm laws in selling a rifle to a felon was liable for the personal injuries caused by the weapon); Crown v. Raymond, 764 P.2d 1146 (Ariz. Ct. App. 1988) (reversing summary judgment order in favor of the defendant gunshop owner, and holding that the sale of a firearm to a minor in violation of federal law was negligence per se and it was reasonably foreseeable that the minor customer would use the weapon to commit suicide). See generally Andrew J. McClurg, The Tortious Marketing of Handguns, 19 Seton Hall Legis. J. 777, 806-18 (1995).
[3]. See, e.g., Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985) (rejecting a product liability claim because the product had performed exactly as it was designed to); Patterson v. Gessellschaft, 608 F. Supp. 1206 (N.D. Tex. 1985) (stating that product liability claims are ineffective in controlling handguns and control of the sale of handguns should left to the legislature).
[4]. See Restatement (Second) of Torts ss 519-20 (1981). The Restatement states that "one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." Id. The Restatement further defines the factors to be taken into account when determining whether an activity is ultra-hazardous as:
(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.
[5]. See Burkett v. Freedom Arms, 704 P.2d 118 (Or. 1985); Delahanty v. Hinckley, 845 F.2d 1069 (D.C. Cir. 1988); Coulson v. DeAngelo, 493 So. 2d 99 (Fla. Dist. Ct. App. 1986); Trespalacious v. Valor Corp., 486 So. 2d 649 (Fla. Dist. Ct. App. 1986); Strickland v. Fowler, 499 So. 2d 199 (La. Ct. App. 1986); Addison v. Williams, 546 So. 2d 220 (La. Ct. App. 1989); Riordan v. Int'l Armament Corp., 477 N.E.2d 1293 (Ill. App. Ct. 1985); Linton v. Smith & Wesson, 469 N.E.2d 339 (Ill. App. Ct. 1984); Richardson v. Holland, 741 S.W.2d 751 (Mo. Ct. App. 1987); Diggles v. Horowitz, 765 S.W.2d 839, 841 (Tex. App. 1989); Knott v. Liberty Jewelry & Loan, 748 P.2d 661 (Wash. Ct. App. 1988); Orser v. George, 252 Ca. App. 2d 660 (1967).
[6]. See McClurg, supra note 3, at 788-91. McClurg notes that some courts have refused to consider the manufacture of handguns an ultra-hazardous activity because the doctrine has been historically land-based, and applied only to those activities that are a threat to neighbors. See McClurg, supra note 3, at 790-91. McClurg adds that other judges have taken the opinion that the "widespread marketing of handguns" makes it a common usage, which, under the Restatement, precludes it from being an ultra-hazardous activity. Id.
[7]. See Erie v. Tompkins, 304 U.S. 64, 78-79 (1938) (recognizing that no federal common law exists and that, in the absence of actions falling under the Constitution or acts of Congress, the law of the state where the action is brought must be applied).
[8]. For the purposes of this article, the "Erie factor" will be used to indicate that the Supreme Court has recognized that there is no federal common law and that lower courts have been bound by this decision to decide cases according to the common law of the state where the injury occurred, therefore effectively precluding legal reform in this area at the federal level.
[9]. Indeed, in most of the jurisdictions where the issue is said to have been laid to rest, there is good reason to anticipate that the question will be revisited in future cases. See infra Part IV (C).
[10]. See Patterson v. Gessellschaft, 608 F. Supp. at 1210 (quoting evidence presented by the plaintiff's expert).
[11]. See generally Dennis A. Henigan, Victims' Litigation Targets Gun Violence, Trial, Feb., 1995, at 50. Approximately one half of all households in the U.S. have firearms, approximately one third leave these guns loaded, and half keep them unlocked. Id. Many of these guns are easily accessably to children, as evidenced by the fact that 551 children and teen-agers died from accidental shootings in 1991. Id.
[12]. See supra note 5.
[13]. Sui generis is defined as: "[o]f its own kind or class; i.e., the only one of its own kind; peculiar." Black's Law Dictionary 1434 (6th ed. 1990). The Maryland Court of Appeals utilized the sui generis approach to impose liability upon distributors of a particular type of handgun, the Saturday Night Special. Kelley v. R.G. Indus., Inc., 497 A.2d 1143 (Md. 1985). A somewhat different theory may better apply to assault weapons, which are often banned outright and which are designed expressly for the purpose of inflicting large scale casualties.
[14]. See Ellen Saxon, Firearm Injuries and Deaths: A Critical Public Health Issue, U.S. Dep't. of Health and Human Services Public Health Report (March, 1989) (stating that "[a]ccurate figures are not available, but there are perhaps 180 million to 200 million firearms in the United States, of which 55 to 60 million are handguns"); see also Dennis A. Henigan, Victims' Litigation Targets Gun Violence, Trial, Feb. 1995, at 50 (estimating that about fifty percent of all American households have a gun, and that about twenty five percent of those weapons are handguns).
[15]. See Kennett & Anderson, The Gun in America, The Origins of a National Dilemma 220 (1975). The boom started at the end of World War II. Id. Although most service weapons were destroyed, thousands of souvenir firearms were brought home by veterans. Id. More importantly, some 45 million small arms were sold in the domestic civilian market between 1946 and the passage of the 1968 Gun Control Act. Id.
[16]. Violence Policy Center, Firearms Production in America, 1994 ed., at 129-32, appendix 2 and 3.
[17]. See Ellen Saxon, Address at the Seton Hall University School of Law Conference entitled "Stopping Arms Trafficking at Home & Abroad: Curbing the Merchants of Death" (Feb. 25, 1995).
[18]. See id.
[19]. See William Hartung, Sale of the Century: Bill Clinton's Amazing Arms Bazaar, Commonweal, May 20, 1994, at 13. United States international weapons sales exceeded 31 billion dollars in fiscal 1993. Id. This unprecedented number of sales sent weaponry to over 140 countries and marked the first time that any nation sold more than 30 billion dollars worth of weaponry in a given year. Id.
[20]. See William Hartung, And Weapons for All 273 (1994). Mr. Hartung asserts that the elections of 1992 and the Clinton administration's first year indicate that "America's arms sales addiction is alive and well." Id.
[21]. See Michael Odin, Address at the Seton Hall University School of Law Conference entitled "Stopping Arms Trafficking at Home & Abroad: Curbing the Merchants of Death" (Feb. 25, 1995).
[22]. See id.
[23]. See id. Ability to pay is not a sine qua non: every year the United States provides more than five billion dollars in subsidies to foreign nations for the purpose of acquiring arms. Id.
[24]. See Hartung, supra note 20, at 285.
[25]. See Hartung, supra note 20, at 204-05.
[26]. See Odin, supra note 21.
[27]. See Odin, supra note 21. It has in fact been estimated that the United States made a modest three billion dollar profit on the venture. Id.
[28]. See Odin, supra note 21.
[29]. See Hartung, supra note 20 at 14.
[30]. See supra notes 17-23 and accompanying text.
[31]. See infra Part III(B).
[32]. Philip Berrigan, Keynote Address at the Seton Hall University School of Law Conference entitled "Stopping Arms Trafficking at Home & Abroad: Curbing the Merchants of Death" (Feb. 25, 1995). Berrigan, a noted peace activist, contended that "arms sales abroad generate guns in our streets." Id.
[33]. See supra note 16 and accompanying chart.
[34]. See Saxon, supra note 17. See also Violence Policy Center, supra note 16 at 10-106. About 1.5 million handguns were produced in 1992 by eight domestic manufacturers: Smith & Wesson produced 166,000 handguns, of which 111,580 were 9 mm. pistols; Sturm Ruger & Co. produced 228,000 handguns, of which 106,000 were 9 mm. pistols, and Beretta produced 122,000 handguns, of which 49,000 were 9mm. pistols. Id. Bryce, Davis, Lorcin, Peat Mfg., and Raven Arms complete the big eight. Id.
[35]. See, e.g., Wayne R. LaPierre, Guns, Crimes and Freedom 31(1994), in which the author describes Alabama as "a state where legislators and law enforcement officials trust law-abiding citizens to carry concealed firearms to protect themselves and their families." A more balanced consideration of the problem may be found in Furnish and Small, The Mounting Threat of Home Intruders (1993), in which the authors describe increased apprehension about crime as real and rational, but voice concerns about widespread private gun ownership as a true solution to the problem.
[36]. See Study Links Rise in Killings to Relaxed Gun Laws, N.Y. Times, March 13, 1995, at 23 [hereinafter Study]. The states according to the story are Alaska, Arizona, Tennessee, Wyoming, Idaho, and Montana. Id.
[37]. See Debra Dobray and Arthur J. Waldrop, Regulating Handgun Advertising Directed Toward Women, 12 Whittier L. Rev. 113, 114 n. 8 (1991) (giving examples of how Smith & Wesson's advertising techniques have been directed toward women).
[38]. See, e.g., LaPierre, supra note 35, at 29-39; Furnish & Small, supra note 35, at 45-62.
[39]. See, e.g., Richardson v. Holland, 741 S.W.2d 751, 754 (Mo. Ct. App. 1987), in which the court stated that a handgun's "normal function is to propel bullets with deadly force."
[40]. See U.S. Dept of Justice Crime Data Brief, Guns and Crime (April 1994).
[41]. See id. The annual reported firearm thefts averaged 341,000 for 1987-92. Id. 53% of them handguns, 64% were stolen during burglaries, and another 32% during larcenies. Id.
[42]. See Saxon, supra note 17.
[43]. See Saxon, supra note 14. The unavailability of these statistics is due to errors in reporting and incompatibility of the reporting system.
[44]. See Saxon, supra note 17.
[45]. See McClurg, supra note 2, at 791. "The average cost of medical treatment for a gunshot wound is $14,400." Id. Other social costs, both tangeable and intangeable, should also be taken into account, including "lost wages and productivity from both the victims and the family members who must care for them, physical and mental pain and suffering, police resources, funeral expenses, and the psychological insecurity we all suffer from living in a gun-infested society." Id. at 792.
[46]. See McClurg, supra note 2, at 791-92..
[47]. See Robert F. Drinan, The Good Outweighs the Evil, in The Gun Control Debate 54 (Lee Nisbet ed., 1990), where the fallacies of this sweeping rhetoric are exposed. Some gun advocates sport bumper stickers with the somewhat threatening aphorism "Gun Control means Hitting Your Target."
[48]. See Jervis Anderson, An Extraordinary People, in Gun Control 61 (Robert Emmet Long ed., 1989). The passage of the 1968 Gun Control Act, which banned the importation of cheap handguns and interstate firearms retail sales has been identified as the catalyst for the "transformation of the NRA into a militant advocate and defender of gun-owning rights." Id. at 69.
[49]. See Brady Handgun Violence Protection Act, 18 U.S.C.A. s 921 et seq. (West 1994).
[50]. See Fox Butterfield, Handgun Law Deters Felons, Studies Show, N.Y. Times, March 12, 1995, at 23 (stating that three surveys found that approximately 45,000 convicted felons, constituting 2 to 3.5 percent of applicants, were denied handgun purchase applications during the first year the law was in effect).
[51]. See Study, supra note 36. Thus reversing the trend started with the enactment of the Sullivan Law in New York in 1911, prohibiting the carrying of concealed weapons. Lee Nisbet, The Gun Control Debate 22 (1990).
[52]. See Ark. Code Ann. s 5-73-301 et seq. (Michie 1995).
[53]. See Study, supra note 36. The cities studied were Portland, OR, Jackson, MI, Miami, FL, Jacksonville, FL, and Tampa, FL. Id.
[54]. See Study, supra note 38 (noting that "[t]he average monthly number of homicides by gun increased 74 percent in Jacksonville, 43 percent in Jackson, 22 percent in Tampa and 3 percent in Miami").
[55]. See supra note 51 and accompanying text.
[56]. See infra Part III(A).
[57]. See infra Part III(B).
[58]. See infra Part III(C).
[59]. U.S. Const. amend. II. The Second Amendment states: "A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed." Id. See Kennett & Anderson, The Gun in America, The Origins of a National Dilemma (1975); Earl R. Kruschke, The Right to Keep and Bear Arms, A Continuing American Dilemma (1985); Robert Emmet Long, Gun Control (1989); Lee Nisbet, The Gun Control Debate (1990); Dennis A. Henigan, Arms, Anarchy, and the Second Amendment, 26 Val. U. L. Rev. 107 (1991).
[60]. See Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); William Van Alstyne, The Second Amendment and the Right to Bear Arms, 43 Duke L.J. 1236 (1994); David E. Vandercoy, The History of the Second Amendment, 28 Val. U. L. Rev. 1007 (1994). I have nothing to add to the historical debate, but I confess confusion on one point in particular: since "arms" encompasses all forms of weapons, how do controls on, or even prohibition of, particular types of arms, whether nuclear weapons, anthrax diffusion modules, or handguns, violate the right? If the world came to its senses tomorrow and committed itself to the universal destruction of all guns, would the Constitution allow the United States to disarm the military and the police, but not private citizens?
[61]. See Kruschke, supra note 59, at 31. The laws under Alfred the Great obliged every English citizen to purchase weapons and to be available for duty in the military. Id.
[62]. See Kruschke, supra note 59, at 40-45 (analyzing nineteenth century state decisions recognizing a right to keep and bear arms under both state and federal constitutions).
[63]. See Nisbet, supra note 51, at 22.
[64]. See generally Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 203 (1983).
[65]. See id.
[66]. See Robert E. Shalhope, The Ideological Origins of the Second Amendment, in Gun Control 8, 11 (Robert Emmet Long ed., 1989); Lawrence Delbert Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, in Gun Control 25 (Robert Emmet Long ed., 1989).
[67]. See John Kaplan, The Wisdom of Gun Prohibition, in The Annals of the American Academy of Political and Social Science, Vol. 455, 11, 14 (Richard D. Lambert ed., May 1981). John Kaplan has cogently argued the futility of universal gun control laws opposed by significant numbers of otherwise law abiding citizens. Id. "... [I]t is hard to think of any way we could coerce those gun owners determined to ignore any prohibition into giving up their weapons, short of instituting a massive program of house-to-house searches. These are, in fact, practiced occasionally in other countries---often in the wake of a revolution---to remove weapons from private hands." Id.
[68]. See Saxon, supra note 14. It is generally held that there are 55 or 60 million handguns in the United States, and between 180 and 200 million firearms in total. Id.
[69]. See James Jacobs, Disarming the Police Would Make Gun Control Effective, in Gun Control 42, 43 (Charles P. Cozic ed., 1992). Jacobs, while conceding that "[e]ven fervent advocates of handgun control...concede that under stringent handgun control the police will continue to possess and carry weapons," nevertheless contends that police should be disarmed of handguns. Id. at 43. It has been noted elsewhere that most eastern and midwestern police were not legally allowed to carry weapons until late in the nineteenth century. Nisbet, supra note 51, at 22.
[70]. See supra Part II(A).
[71]. See supra Part III(A).
[72]. See supra note 37 and accompanying text.
[73]. See Arthur L. Kellermann and Donald T. Reay, Gun Ownership is Not an Effective Means of Self-Defense, in Gun Control 171, 175 (Charles P. Cozic ed., 1992) (noting that a study indicated that there were 43 criminal homicides, suicides, and accidental deaths by guns kept in the home for every one case of self-defense homicide).
[74]. See Kaplan, supra note 67, at 14.
[75]. See Henigan, supra note 11, at 50.
[76]. See U.S. Const. Amend IV.
[77]. See supra notes 2-5 and accompanying text.
[78]. See supra note 5 and accompanying text..
[79]. See supra notes 5, 6 and accompanying text.
[80]. See Weiss, supra note 1, at 168.
[81]. See Kelley v. R.G. Indus., Inc., 497 A.2d 1143, 1153-59 (Md. 1985) (describing Saturday Night Specials as guns which "are characterized by short barrels, light weight, easy concealability, low cost, use of cheap materials").
[82]. See Weiss, supra note 1, at 168-69. Weiss, a reporter writing at that time described the campaign:
The bitter debate over gun control, which for two decades has taken place in Congress, state houses, and city halls, is being carried into the courtroom. With this change in venue comes a change in the shape of the issue. A new strategy is emerging, one that purposefully circumvents the legislative process, tries to avoid the usual constitutional argument about the right to bear arms, and instead calls forth the citizen's right of legal redress.
Almost sixty lawsuits are now pending in which victims of handgun shootings are suing the manufacturers and distributors of the cheap, concealable guns with short barrels called "snubbies" or Saturday Night Specials. Phillip Corboy is the lawyer representing the widow and family of James Riodan, the highest-ranking police officer ever killed in the line of duty in Chicago, in their suit against Walther, the West German manufacturer, and International Armament Corporation, the American distributor of the gun used to kill Riodan. In Washington, D.C., Jacob Stein, a lawyer acting on behalf of presidential press secretary James Brady and his wife, Sarah, drew up a suit against another German gun manufacturer, Roehm...demanding $100 million for damages inflicted by their product---John Hinckley's gun. Windle Turley, a Dallas lawyer, has filed nineteen similar lawsuits in nine states.
Id.
[83]. See Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1204 (7th Cir. 1984). Typical is the statement by the Seventh Circuit Court of Appeals: "[i]mposing liability for the sale of handguns, which would in practice drive manufacturers out of business, would produce a handgun ban by judicial fiat." Id. See also Patterson v. Gessellschaft, 608 F. Supp. 1206, 1216 (N.D. Tex. 1985) (stating that "the judicial system is, at best, ill-equiped to deal with the emotional issues of handgun control"). The court further noted that the decisions by courts in this realm would be inconsistant and a great expenditure of judicial resources would be required in order for proponents of gun control to achieve their goal of putting gun manufacturers out of business through the use of products liability lawsuits. Id. See also Richman v. Charter Arms Corp., 571 F. Supp. 192, 202-03 (E.D. La. 1983). Judge Mentz, noted the lack of support for such a claim:
The defendant maintains that, if liability is imposed in this case, no company that markets handguns for sale to the general public will be able in the future to obtain insurance. The result, according to the defendant, will be catastrophic for handgun manufacturers: all such companies will be forced either to alter their marketing practices radically or to go out of business. This argument has a ring of plausibility to it. At the same time, however, it is highly speculative. One problem is that the defendant has introduced no evidence to support the argument.
Id. The court's decision was reversed, and Judge Mentz's reasoning specifically rejected, in Perkins v. F.I.E. Corp, 762 F.2d 1250, 1269 (5th Cir. 1985).
[84]. See, e.g., N.J. Stat. Ann. s 2A:15-5.2. (applying a sliding scale providing for joint and several liability of one who is at least 60% at fault and fair share liability for one who is less than 20% at fault).
[85]. See infra Part V(B).
[86]. See, e.g., Addison v. Williams, 546 So. 2d 230, 233 (La. Ct. App. 1989). Although the court ultimately rejected liability, it cautioned that "[t]his case does not involve issues of 'gun control.' This is a civil damage suit between private parties to be decided by the court under principles of tort and product liability law." Id.
[87]. See Brown v. Bd. of Educ., 347 U.S. 483 (1954).
[88]. See Henningsen v. Bloomfield Motors Corp., 32 N.J. 358, 370-80, 161 A.2d 69, 76-81 (1960).
[89]. See id. at 380.
[90]. See, e.g., Shipman v. Jennings Firearms, 791 F.2d 1532, 1534-35 (11th Cir. 1986) (Nichols, J., concurring) (stating that there are no benefits, only detriments to the judicial system and society, of prolonging an action by bringing it in federal court, where the court may have to certify the question to the state court, rather than directly bring the suit in state court).
[91]. See Erie v. Tompkins 304 U.S. 64, 79 (1938).
[92]. See Moore v. R.G. Indus., 789 F.2d 1326, 1327 (9th. Cir. 1986) (citing Klingebile v. Lockheed Aircraft Corp., 494 F.2d 345, 346 (9th Cir. 1974) where the court stated "[i]n reviewing Ms. Moore's strict liability claim, we apply the existing California law, and do not predict possible changes in that law").
[93]. Shipman v. Jennings Firearms, 791 F.2d at 1534 (Nichols, J., concurring). See also Armijo v. Ex Cam, 656 F. Supp. 771, 775 (D.N.M. 1987). The Armijo court opined:
it [is] unnecessary to engage in any lengthy discussion of the Kelley doctrine. To recognize such a cause of action in New Mexico would require an abrogation of the common law in a way bordering on judicial legislation. A federal court in diversity cases is especially reluctant to take such action, in the absence of more specific guidance from the state courts.
Id. Similarly, the United States Court of Appeals for the District of Columbia Circuit, in the course of certifying the question of strict liability to the District of Columbia Court of Appeals, noted that "[a] federal court sitting in diversity should normally decline to speculate on such a question of local doctrine. 'Federal judges are disinclined to make bold departures in areas of law that we have no responsibility for developing."' Delahanty v. Hinckley, 845 F.2d 1069, 1070 (C.A.D.C. 1988) (quoting Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir. 1985)). See also Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345, 347 (9th Cir. 1974) (describing as "doubtful" the "privelege of 'first guessing' what the California courts might do" on a new legal issue).
[94]. 16 Pet. 1, 10 L.Ed. 865 (1842).
[95]. See James & Hazard, Civil Procedure s 2.34, at 117 (3d ed. 1992) (stating that "[t]he rule in Swift v. Tyson might have worked out as a basis for pervasive expansion of federally formulated decisional law).
[96]. See Erie v. Tompkins, 304 U.S. at 74.
[97]. See Martin v. Harrington & Richardson, Inc., 743 F.2d at 1204-06 (holding that the sale of handguns does not constitute ultra-hazardous activity so as to give rise to strict liability); Caveny v. Raven Arms, 665 F. Supp. 530, 531 (D. Ohio 1987).
[98]. See Burkett v. Freedom Arms, 704 P.2d 118, 120 (Or. 1985).
[99]. See Delahanty v. Hinkley, 564 A.2d 758, 759 (D.C.C.A. 1989); See generally D.C. Code s 11-723.
[100]. See Perkins v. F.I.E. Corp., 762 F.2d 1250, 1254 (5th Cir. 1985). The Louisiana court's rejection of certification gave no reasoning for the decision, although two judges dissented. Id.
[101]. See Clay v. Sun Ins. Office, 363 U.S. 207, 212 (1960) (referring to Fla. Stat. Ann. s25.031 (West 1957))
[102]. 12 U.L.A. 49 (1967).
[103]. See Jack J. Rose, Note, Erie R.R. and State Power to Control State Law: Switching Tracks to New Certification of Questions of Law Procedures, 18 Hofstra L. Rev. 421, 427 (1989). The Uniform Act has been adopted, with some variations in 26 states, Puerto Rico, and the District of Columbia. Id. The states are Alabama (Ala R. App. P. 18), Arizona (Ariz Rev. Stat. Ann. ss 12-1861 to 12-1867 (1981)), Colorado (Colo. Rev. Stat. ch. 32, Colo. R. App. P. 21-24 (1984 & Supp. 1988)), Connecticut (Conn. Gen. Stat. Ann. s 51-199a (West Supp. 1988), Florida (Fla. R. App. P. 9.150), Georgia (Ga. Code Ann. s 15-2-9 (1985)), Indiana (Ind. Code Ann. s 33-2- 4-1 (West 1983), Ind. R. App. P. 15(o), Iowa (Iowa Code Ann. ss 684a.1- .11 (West 1987)), Kansas (Kan. Stat. Ann. ss 60-3201 to 60-3212 (1983)), Kentucky (Ky. R. Civ. P. 76.37), Louisiana (La. Rev. Stat. Ann. s 13:72.1, La. Sup. Ct. R. 12 (West 1983 & Supp. 1988), Maine (Me. R. Civ. P. 76b), Maryland (Md. Cts. & Jud. Proc. Code Ann. ss 12-601 to 12- 609 (1984)), Massachusetts (Mass. Rules Sup. Jud. Ct., Gen. R. 1:103); Minnesota (Minn. Stat. Ann. s 480.061 (West Supp. 1989)), Mississippi (Miss. R. Sup. Ct. 46), New Hampshire (N.H. Rev. Stat. Ann. s 490; Sup. Ct. R. 34), North Dakota (N.D. R. App. P. 47), Oklahoma (Okla. Stat. Ann. tit. 20, ss 1601-1612 (Supp. 1989), Oregon (Or. Rev. Stat. ss 28.200-.255 (1987)), Rhode Island (R.I. Sup. Ct. R. 6), South Dakota (S.D. Codified Laws Ann. ss 15-24A-1 to 15-24A-11 (Supp. 1988)), Washington (Wash. Rev. Code Ann. ss 2.60.010-.900 (1988)), West Virginia (W. Va. Code ss 51-1A-1 to 51-1A- 12 (1981 & Supp. 1988), Wisconsin (Wis. Stat. Ann. ss 821.01-.12 (Supp. 1988)) and Wyoming (Wyo. R. App. P. 11.01-.07). Id. at n. 27.
[104]. See Geri J. Yonover, A Kinder, Gentler Erie: Reining in the Use of Certification, 47 Ark. L. Rev. 305, 314, n. 46 (1994). New Jersey is among the holdouts. Id. at n. 46. Eight states allow certification only from a Federal Appeals Court or the United States Supreme Court. Id. at 314.
[105]. See Lehman Bros. v. Schein, 416 U.S. 386, 390-91 (1974). See also Bellotti v. Baird, 428 U.S. 132, 151 (1976) (endorsing certification concerning a state abortion consent law).
[106]. See Dolores K. Sloviter, A Federal Judge Views Diversity Jusidiction Through the Lens of Federalism, 78 Va. L. Rev. 1671, 1685 (1992); See also Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) (showing the delay that can be occasioned by certification). Geri Yonover has proposed that a party who invokes Federal jurisdiction should ordinarily be precluded from seeking certification. See Yonover, supra note 104, at 312.
[107]. See Perkins v. F.I.E. Corp., 762 F.2d 1250, 1254 (5th Cir. 1985).
[108]. See generally Yonover, supra note 104; Sloviter, supra note 106; Rose, supra note 103; John B. Corr & Ira P. Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand. L. Rev. 411 (1988); Paul A. LeBel, Legal Positivism and Federalism: the Certification Experience, 19 Ga. L. Rev. 999 (1985).
[109]. See Sloviter, supra note 106, at 1685. It has been suggested that an answer to a certified question is in fact an advisory opinion. See John L. DeWeerdt, Comment, Inter-Jurisdictional Certifications and Full Faith and Credit in Federal Courts: To Certify or Not to Certify, Is that a Question?, 45 Wash. L. Rev. 167, 172 (1970). The Uniform Certification of Question of Law Act (U.L.A) s 1 addresses the problem by requiring that the question presented "may be determinative of the cause." Corr and Robbins, supra note 108, at 420. The U.L.A. provides "[t]he [supreme court] may answer questions of law certified to it [if they involve issues] of law of this state which may be determinative of the cause then pending in the certifying court." Id. at 419-20 (emphasis in origional) (alterations in origional). However, seven states enacting the Uniform Law have seen fit to add a requirement that the issue of law actually be dispositive. Id. at 420. The seven states are Alabama, Florida, Georgia, Indiana, Louisiana, Mississippi and New Mexico. Id. at 420 n. 37.
[110]. See, e.g., Spencer v. Aetna Life & Cas. Ins. Co., 611 P.2d 149 (Kan. 1980); In re Elliot, 446 P.2d 347 (Wash. 1968) (although the court added that the public interest in the question would warrant an advisory opinion in any case). For a strongly worded opposing view, see Corr and Robbins, supra note 108, at 421 n.44 (quoting the concurring opinion of Judge Jones in Hopkins v. Lockheed Aircraft Corp., 394 F.2d 656, 658 (5th Cir. 1968) (Jones, J., concurring)).
[111]. LeBel, supra note 108, at 1021.
[112]. See Corr & Robbins, supra note 108, at 418, n. 33 (stating that U.L.A. s 3 provides that the certification order shall set forth the questions of law and "a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose").
[113]. See, e.g., Lumbermens Mut. Cas. Co. v. Belleville Indus., Inc., 555 N.E.2d 568, 576 (Mass. 1990).
[114]. Sloviter, supra note 106, at 1686 n. 79 (citing Corr & Robbins, supra note 108 at 426 n. 70).
[115]. See Corr & Robbins, supra note 109, at 418. A state supreme court usually will have the full case record, whereas a court which must rule on a certified case can examine only the records that the certifying court judges necessary. Id.
[116]. See Rufino v. U.S., 506 N.E.2d 910, 911 (N.Y. 1987).
[117]. See id. "[I]t is unquestionably preferable in the resolution of significant state law issues to secure the benefit afforded by normal process-- the considered deliberation and writing of our intermediate appellate court in a pending litigation." Id. The federal court then predicted, incorrectly, that New York would sanction a claim for hedonic damages even though the comatose plaintiff had no conscious perception whatever. Rufino v. U.S., 829 F.2d 354, 361 (2d Cir. 1987). See also Yonover, supra note 104, at 323 (state courts give many reasons why they will decline "to answer a certified question of law", one of them being the desire to rule on important issues only after they have gone through trial courts and intermediate appellate trial courts of the state).
[118]. 499 U.S. 225 (1991).
[119]. Id. at 231-32.
Independent appellate review of legal issues best serves the dual goals of doctrinal coherence and economy of judicial administration. District judges preside alone over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge's legal research with memoranda and briefs. Thus, trial judges often must resolve complicated legal questions without benefit of "extended reflection [or] extensive information." Coenen, To Defer or Not to Defer: a Study of Federal Cicuit Court Deference to District Court Rulings on State Law, 73 Minn. L. Rev. 899, 923 (1989).
Courts of appeals, on the other hand, are structurally suited to the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues. As questions of law become the focus of appellate review, it can be expected that the parties' briefs will be refined to bring to bear on the legal issues more information and more comprehensive analysis than was provided for the district judge.
Id.
[120]. It has been held that Congress intended no victim's remedy for gun injuries caused by a weapon sold in violation of 18 U.S.C. s 922. Hulsman v. Hemmeter Dev. Corp., 647 P.2d 713, 720-21 (Haw. 1982) (citing Decker v. Gibson Prod., 505 F. Supp. 34, (M.D. Ga. 1980) in which summary judgment was granted for a defendant gun seller where a third persons' intervening negligence occurred, thus "it was not foreseeable that firearm misuse would result from the sale")).
[121]. See King v. R.G. Indus., Inc., 451 N.W.2d 874, 875 (Mich. App. 1989). The King decision specifically rejected the holding in Kelly v. R.G. Industries, Inc., 497 A.2d 1143 (Md. 1985) based in large measure on its reluctance to intrude upon the legislature's actions in regulating firearms. Id. The court also declined to hold the manufacturer liable for either negligence or product defect. Id. The plaintiffs set forth a claim for negligence and for breach of implied warranty, but they did not allege that the handgun was defective. Id. The plaintiff also claimed that even if a product works properly, it may still be defective when considering its foreseeable misuse. Id. There was apparently no ultra-hazardous activity claim, although Michigan is the state which had imposed liability on a slingshot manufacturer which had targeted its product to children. See Moning v. Alfono, 254 N.W.2d 759 (Mich. 1977). The King court distinguished Moning by stating that an unreasonable risk of harm was created in marketing slingshots to children, whereas in King, the plaintiffs did not demonstrate that the manufacturer targeted criminals as purchasers. King v. R.G. Indus., Inc., 451 N.W.2d at 875-76.
[122]. See Burkett v. Freedom Arms, 704 P.2d 118 (Or. 1985).
[123]. See Delahanty v. Hinckley, 845 F.2d 1069, 1070 (D.C. Cir. 1988).
[124]. See Kelley v. R.G. Indus., Inc., 497 A.2d 1143, 1158-59 (Md. 1985). Strict liability was imposed because (1) Saturday Night Specials have "little or no legitimate purpose in today's society"; (2) manufacturers know or should know that they are used primarily in criminal activity. Id.
[125]. See Md. Code Ann., Art. 3A, s 36-1(L) (1988).
[126]. See Hulsman v. Hemmeter Dev. Corp., 647 P.2d 713 (Haw. 1982).
[127]. See Coulson v. DeAngelo, 493 So. 2d 99 (Fla. Dist. Ct. App. 1986); Trespalacious v. Valor Corp., 486 So. 2d 649, 650 (Fla. Dist. Ct. App. 1986) (strict liability claim was rejected because there was no claim that the product was defective and that this defect was the proximate cause of the injury).
[128]. See Strickland v. Fowler, 499 So. 2d 199 (La. Ct. App. 1986); Addison v. Williams, 546 So. 2d 220, 225 (La. Ct. App. 1989).
[129]. See Linton v. Smith & Wesson, 469 N.E.2d 339, 340 (Ill. App. Ct. 1984) (holding no duty of manufacturer to control distribution on non- defective firearm).
[130]. See Richardson v. Holland, 741 S.W.2d 751 (Mo. Ct. App. 1987).
[131]. See Diggles v. Horowitz, 765 S.W.2d 839, 841 (Tex. App. 1989).
[132]. See Knott v. Liberty Jewelry & Loan, 748 P.2d 661 (Wash. Ct. App. 1988) (holding manufacture, distribution and sale are not ultra-hazardous activities). The Washington court, in rejecting a claim for strict liability based upon product defect, stated:
[u]nder the doctrine of stare decisis we are bound by Baughn [mini-trail bike], which requires a showing that the injury-causing product was defective before liability can be imposed. We must emphasize that this court cannot establish a new rule of law upon an issue contrary to the holding of the Supreme Court of our state.
Id. at 665. In addition, the court noted that establishing a cause of action for handguns is for the legislature to decide. Id.
[133]. See Hammond v. Colt Indus., 565 A.2d 558, 563 (Del. Super Ct. 1989) (declining to allow a cause of action for strict liability for the sale of an inherently dangerous product).. The court noted that "[t]he marketing of a gun is not dangerous in and of itself since when injury occurs it is not the result of the sale itself, but the result of actions taken by a third party." Id. (citing Perkins v. F.I.E. Corp., 762 F.2d at 1265 (5 Cir. 1985)).
[134]. See Faiella v. Bangor Punta, 506 A.2d 1340 (Pa. Super. Ct. 1985); Mazillo v. Banks, 542 A.2d 1370 (Pa. 1988).
[135]. See Shipman v. Jennings Firearms, 791 F.2d 1532, 1534 (11th Cir. 1986).
[136]. See Perkins v. F.I.E Corp., 762 F.2d 1250, 1268 (5th Cir. 1985) (concluding that the "marketing of handguns to the general public falls far beyond the boundaries of the Louisiana doctrine of ultra-hazardous activities").
[137]. See Armijo v. Ex Cam, 656 F. Supp. 771, 774 (D.N.M. 1987) (indicating that New Mexico courts may classify activity as ultra-hazardous when dealing with activities carried out on real property, but no New Mexico case law indicates that the ultra-hazardous activity doctrine can apply in the products liability area).
[138]. See Patterson v. Rohm Gessellschaft, 608 F. Supp. 1206 (N.D. Tex. 1985).
[139]. See Martin v. Harrington & Richardson, Inc., 743 F.2d 1200 (7th Cir. 1984).
[140]. See Caveny v. Raven Arms, 665 F. Supp. 530, 531-32 (D. Ohio 1987) (concluding that the distribution of handguns was not an ultra-hazardous activity and that ultra-hazardous activities were "limited to those activities that pose a danger to persons in close proximity to the activity such as blasting, storing water and storage of explosives"). The court also noted the requirement that an ultra-hazardous activity not be one of common usage, and the distribution of handguns was surely a common activity. Id.
[141]. See Mavilia v. Soteger Indus., 574 F. Supp. 107, 111 (D. Mass. 1983) (denying the plaintiff's claim that a gun was unreasonably dangerous and holding that a .38 caliber Llama pistol was not inherently defective).
[142]. See supra notes 121-141 and accompanying text.
[143]. A similar theory may be developed with regard to ammunition, although controls on that product are even less advanced than those on the weapons themselves.
[144]. See supra Part III.
[145]. See generally, Franklin E. Zimring and Gordon Hawkins, Firearms and Assault: "Guns Don't Kill People, People Kill People," in The Gun Control Debate 170 (Lee Nisbit ed., 1990).
[146]. See generally N.J. Stat. Ann. ss 59:2-2, 59:3-1. See, e.g., Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090 (1993).
[147]. See, e.g., Malloy v. Briggs, 475 U.S. 335 (1986); Anderson v. Creighton, 483 U.S. 635 (1970); Kirk v. City of Newark, 109 N.J. 173, 536 A.2d 229 (1988).
[148]. See supra Part IV(A).
[149]. Henningsen, 32 N.J at 382, 161 A.2d at 82. See also Aversa v. Pub. Serv. Elec. and Gas Co., 186 N.J. Super. 130, 451 A.2d 976 (App. Div. 1982) (the court held that a strict liability, not ordinary negligence, standard applied to electricity which had been drawn down from the power lines and placed into the stream of commerce at a switchhouse). The "revolutionary" holding of Henningsen, incidentally, came several decades after it was first proposed to the Washington Supreme Court, which had said at the very beginning of the Twentieth Century that "[t]he obligation of the manufacturer should not be based alone on privity of contract. It should rest upon the 'demands of social justice."' Henningsen, 32 N.J. at 384, 161 A.2d at 83 (quoting Mazetti v. Armour & Co., 135 P. 633 (Wa. 1913)).
[150]. A notable exception is Judge Cudahy's concurring opinion in the Seventh Circuit's decision in Martin v. Harrington and Richardson, 743 F.2d 1200, 1206 (7th Cir. 1984). Although concurring in the result declining to impose liability, Judge Cudahy set forth the concerns which courts must ultimately address in this developing area or tort liability:
Id.
[151]. Judge Cudahy suggests that "[t]he justification for the imposition of strict manufacturer liability is that the manufacturer, 'by marketing a product, ... has assumed a special responsibility to the public and should bear the costs of accidents, as a cost of doing business."' Id. (quoting Note, Manufacturers' Liability to Victims of Handgun Crime: A Common-Law Approach, 51 Fordham L. Rev. 771, 778 (1983)).
[152]. The extension of liability into this new area on a common law model will allow the courts to grapple with the many complex subsidiary questions that arise, including whether police handguns should be treated differently [yes], whether criminals have any right to recovery [no], and so on.
[153]. Mark Nollinger, Surrender or We'll Slime You, Wired, Feb., 1995, at 90. Nollinger reports that $41 million of the 1995 Defense Budget is seed money for non-lethal weaponry research, of a total budget of $261 billion. Id.
[154]. See Kevin Coughlin, Picatinny Explores "Stunning" Array of Weapons, Star Ledger, February 26, 1995, at 34.
[155]. See Aversa v. Pub. Serv. Elec. and Gas Co., 186 N.J. Super. 130, 136 n. 2, 451 A.2d 976, 979 (App. Div. 1982) (citing Dawson v. Chrysler Corp., 630 F.2d 950 (3rd Cir. 1980), cert. denied 450 U.S. 959 (1981)).
[156]. See, e.g., N.J. Stat. Ann. s 34:15-1 et seq.
[157]. See id.
[158]. See, e.g., N.J. Stat. Ann. s 39:6A-1 et seq.
[159]. See id.
[160]. See W. Page Keeton Et Al., Prosser and Keeton on the Law of Torts Ch. 13, s 75, at 536 (5th ed. 1984).
[161]. The former term was used by most of the courts considering such issues. The latter term was chosen for the Restatement (Second) of Torts s 519, at 34.
[162]. See Prosser, supra note 160, ch. 13, s 76, at 538-43.
[163]. See Prosser, supra note 160, ch. 13, s 76, at 538-43. Prosser's example is the elephant, considered a domestic beast of burden in Burma, but a dangerous animal in England. Id. at 543.
[164]. See Prosser, supra note 160, ch. 13, s 78, at 545.
[165]. Prosser, supra note 160, ch. 13, s 78, at 546.
[166]. See, e.g., State v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (1983) (holding a landowner strictly liable for harm caused by toxic wastes stored on property which flowed onto the property of others). But see City of Bloomington v. Westinghouse Electric Corp., 891 F.2d 611, 615-17 (7th Cir. 1989) (in which the Court, construing Illinois Law, declined to recognize the manufacture of PCBs as ultra-hazardous, relying in part on its own earlier gun liability decision in Martin v. Harrington Arms, 743 F.2d 1200 (7th Cir. 1984)). Judge Cudahy dissented, contending that the plaintiff had stated a viable strict liability claim. Id. at 617-20.
[167]. See supra Part I. Recall the categories of gun users. Target shooting is either practice for inflicting injury on a living creature or a sport which could better be performed with a device containing a light emitting diode or similar safe device.
[168]. See supra note 37 and accompanying text.
[169]. Both contentions are untrue. A privately owned gun is 43 times more likely to injure a member of the household than a criminal. Kellermann & Reay, supra note 73 at 175. Although the most frightening criminal is the robber or rapist, the most prevalent crime is burglary. Burglars choose unoccupied homes if at all possible. Handguns cannot legally be carried in most jurisdictions, and therefore will not be of much help against the robber/rapist. See generally Kellermann & Reay, supra note 73.
[170]. That is, whether it is "customarily carried on by the great mass of mankind or by many people in the community." Restatement (Second) of Torts s 520, comment i.
[171]. Restatement (Second) of Torts, s 520.
[172]. But see Perkins v. F.I.E. Corp., 762 F.2d 1250, 1265 (5th Cir. 1985) (concluding in dicta that marketing of handguns is not abnormally dangerous). It may be argued that, given sufficient incentive, the industry would accelerate the development on nonlethal self-defense weapons.
[173]. See Prosser, supra note 160, ch. 13, s 78, at 545.
[174]. See supra notes 124, 125 and accompanying text.
[175]. It may be contended that this model of liability will simply put the question back to the very decision makers who have been charged with succumbing to intense pressure from special interest groups in failing to enact effective gun controls. That will not happen if those charged with this responsibility recognize the tremendous difference between complete prohibition and a simple allocation of risk.
[176]. Given the emotionally charged arguments on the issue and the vitriolic political debates on gun control in general, it would appear prudent for judges to let juries have the responsibility for reflecting the community view on these difficult issues.
[177]. See generally Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784 (D.N.J. 1989) (holding that under New Jersey law the determination whether disposing of PCBs is an abnormally dangerous activity is for the jury).
[178]. I do not mean to suggest that there is a corresponding constitutional right to own, let alone distribute guns. See supra Part III(A).
[179]. See Perkins v. FIE Corp, 762 F.2d 1250, 1265 n. 43 (citing Note, Handguns and Products Liability, 97 Harv. L. Rev. 1912, 1923 (1984)).
[180]. See Prosser, supra note 161, at 556-59.
[181]. See Aversa v. Pub. Serv. Elec. and Gas Co., 186 N.J. Super. 130, 451 A.2d 976 (App. Div. 1982).
[182]. See supra Part I(B).
[183]. See Steven Brill, Firearms Abuse (1977).
[184]. Id. at 89.
[185]. Although I believe that substantive liability for engaging the abnormally dangerous activity of placing handguns in the stream of commerce for ultimate sale to private owners should be co-extensive with long arm jurisdiction over foreign gun distributors, the courts may not agree. See Cruz v. Robinson Eng'g Corp., 253 N.J. Super 66, 600 A.2d 1238 (1992) (discussing Asahi Metal Industries v. Superior Court, 480 U.S. 102 (1987)). See also Charles Gendler & Co. v. Telecom Equip. Corp., 102 N.J. 460, 508 A.2d 1127 (1986).
[186]. See Asahi v. Superior Court, 480 U.S. at 103.
[187]. See, e.g., Addison v. Williams, 546 So. 2d 220 (La. Ct. App. 1989); Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200 (7th Cir. 1984). The proposed Restatement (Third) of Torts, s 520 would apparently incorporate this standard. See McClurg, supra note 2.
[188]. See, e.g., N.J. Stat. Ann. s2A:15-5.1.
[189]. See generally Restatement (Second) of Torts s 302B.
[190]. Butler v. Acme Markets, 89 N.J. 270, 276, 445 A.2d 1141, 1143 (1982). At the conclusion of the Butler opinion, the New Jersey Supreme Court set forth a cogent articulation of the general policy which underlies this sound principle of liability:
In the last analysis then: Whether a duty exists is ultimately a question of fairness. The inquiry involves weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution. Here, because the business invitor is in the best position to provide either warnings or adequate protection for its patrons when the risk of injury is prevalent under certain conditions, and because the public interest lies in providing a reasonably safe place for a patron to shop, we affirm ...
Id.; See also Braitman v. Overlook Terrace Corp., 68 N.J. 368, 346 A.2d 76 (1975) (residential landlord liable for failing to provide an adequate security lock when a burglary ensued); Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980) (residential landlord liable for failing to install lock on main building entry where tenant was accosted and assaulted in stairwell); McGlynn v. Newark Parking Auth., 86 N.J. 551, 432 A.2d 814 (1981) (commercial parking lot operator has duty to take reasonable steps to protect parked vehicles from criminal acts of third persons); Lillie v. Thompson, 332 U.S. 459 (1947) (railroad liable for failure to make reasonable provision against criminal assault upon a telegraph operator).
[191]. John F. Kennedy, Robert F. Kennedy, Martin Luther King Jr., John Lennon, etc.