Maryland Law Review
Note, 46 (1987): 486.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain
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KELLEY v. R.G. INDUSTRIES: WHEN HARD CASES MAKE GOOD LAW
Susan M. Stevens *Copyright 1987 by the Maryland Law Review, Inc. & Susan M. Stevens
In Kelley v. R.G. Industries, Inc. [1] the Maryland Court of Appeals held that strict liability in tort could be imposed on manufacturers and marketers of "Saturday Night Special" handguns. [2] The court refused to extend strict liability to handgun manufacturers or marketers on either an abnormally dangerous activity [3] or product theory, [4] or a risk/utility theory. [5] Instead, the court crafted a new theory of strict liability for anyone, including manufacturers, in the distributive chain of Saturday Night Specials. This new strict liability theory requires that the plaintiff have suffered an injury resulting from the use of a Saturday Night Special during a criminal act. [6]
This note discusses the Kelley case and analyzes three possible criticisms of the decision. [7]
I. KELLEY V. R.G. INDUSTRIES
The plaintiffs, Kelley and his wife, sued the manufacturer and marketer of a Rohm handgun allegedly used by a robber to shoot Kelley during an armed robbery. [8] Kelley originally filed suit in the Circuit Court for Montgomery County, but R.G. Industries, one of the defendants, removed the case to the United States District Court for the District of Maryland. [9] The district court, finding no controlling state court precedent, certified certain questions on strict liability [Page 487] to the Maryland Court of Appeals. [10] After some difficulty with the phrasing of the certified questions, the Court of Appeals narrowed the inquiry to three questions:
1. Is the manufacturer or marketer of a handgun, in general, liable under any strict liability theory to a person injured as a result of the criminal use of its product?
2. Is the manufacturer or marketer of a particular category of small, cheap handguns, sometimes referred to as "Saturday Night Specials," and regularly used in criminal activity, strictly liable to a person injured by such handgun during the course of a crime?
3. Does the Rohm Revolver Handgun Model RG38S, serial number 0152662, fall within the category referred to in question two (2)? [11] [Page 488]
As summarized by the Court of Appeals, the certified questions asked "whether a handgun manufacturer or marketer might be liable under some circumstances for gunshot injuries caused by the use of one of its handguns during the commission of a crime." [12] The Kelleys asserted that such liability should be imposed under either of two strict liability theories. The first theory would require that the manufacturing or marketing of handguns was an "abnormally dangerous activity." The second theory would require that handguns were "abnormally dangerous products." [13]
A. The Abnormally Dangerous Activity Doctrine
Plaintiffs' theory that manufacturing a handgun is an abnormally dangerous activity rested on sections 519 and 520 of the Restatement (Second) of Torts. This theory would impose strict liability on one engaged in an abnormally dangerous or ultrahazardous activity, even though the person exercised extreme care and caution. [14] The Court of Appeals in Kelley refused to extend the abnormally dangerous activity doctrine to instances in which the alleged tortfeasor is not an owner or occupier of land. [15] A relationship must exist between the dangerous activity and the area where it occurs. [16] The court reasoned that the danger inherent in the use of a handgun in the commission of a crime bears no relationship to any occupation [Page 489] or ownership of land. The court therefore refused to extend strict liability to the manufacturing or marketing of handguns based on the abnormally dangerous activity doctrine. [17]
B. The Abnormally Dangerous Product Doctrine
The Kelleys' second argument, that a handgun is an abnormally dangerous product, [18] relied on section 402A of the Restatement (Second) of Torts. The essence of the abnormally dangerous product doctrine is that the vendor of an unreasonably dangerous product may be held strictly liable for any harm caused by the product. [19] The doctrine explicitly requires that the product be defective when sold in order to subject the manufacturer to section 402A liability. [20] A handgun is not defective merely because it is capable of being used to inflict harm. [21] The court found that the Kelleys confused "a product's normal function, which might very well be dangerous, with a [Page 490] defect in the product's design or construction." [22] Furthermore, the application of section 402A is limited by the "consumer expectations" test to situations in which the product is more dangerous than a consumer might reasonably expect. [23] Since a consumer would expect a gun to be dangerous, the court refused to extend strict liability to gun manufacturers or marketers based on the abnormally dangerous product doctrine. [24]
The court also found that manufacturers of handguns could not be held liable under the "risk/utility" test used by other courts to determine whether a design defect exists. [25] Under the "risk/utility" test, "a product may . . . be found to be defective in design if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish . . . that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design." [26] This standard, however, applies only when something goes wrong with a product. [27] The risk/utility test did not apply in Kelley because the gun worked precisely as intended.
C. A New Theory of Strict Liability
Thus, the court found that neither the abnormally dangerous activity, abnormally dangerous product, nor risk/utility doctrines supported extension of strict liability to manufacturers or marketers of handguns. This finding left the plaintiffs without any previously recognized theory for imposing strict liability. The court's analysis, however, did not end there.
The court fashioned a new theory of strict liability based on legislative policy and evidence that cheap handguns have little or no [Page 491] legitimate societal purpose. Initially, the court considered Maryland's public policy [28] as expressed in the state's statutory scheme regulating the wearing, carrying, and transportation of handguns. [29] The policy underlying Maryland's gun control law is to reduce the use of handguns in perpetrating crime. [30] The court concluded that the general imposition of strict liability on manufacturers or marketers of handguns, for injuries resulting from the misuse of those handguns, would be contrary to this public policy. [31]
Although the court refused to extend strict liability generally, it did recognize that public policy did not sanction the use of a limited category of handguns, "Saturday Night Specials." [32] Based upon the Gun Control Act of 1968 [33] and evidence presented at congressional hearings, [34] the court concluded that the characteristics of the Saturday Night Special make it unfit for any of the uses permitted by Maryland gun laws. [35] Furthermore, the policies of both the United States Congress and the Maryland General Assembly reflect the view that Saturday Night Specials have no legitimate purpose and that, therefore, disparate treatment is warranted. [36]
The characteristics of the Saturday Night Special--specifically its poor manufacture, inaccuracy, and unreliability--make the weapon useless for the purposes of law enforcement, sport, and protection of persons, property, and businesses. [37] Moreover, the gun's short barrel, light weight, easy concealability, and low cost make it an attractive weapon for criminal use. [38] These characteristics led the Court of Appeals to recognize a new limited area of strict [Page 492] liability. Since the manufacturer of a Saturday Night Special ought to know that the product is used primarily for criminal activity, [39] holding that manufacturer strictly liable to innocent persons suffering injuries from the criminal use of such weapons is appropriate. [40] Further, the court explicitly extended its new strict liability theory to the entire marketing chain. [41]
There are at least three possible criticisms of the Kelley decision. First, by extending strict liability in this manner, the court is interfering in the legislative domain. Second, the court fails to establish a clear definition of "Saturday Night Special." Third, the Kelley decision violates the second amendment's guarantee of the people's right to keep and bear arms. [42]
II. LEGISLATIVE V. JUDICIAL FUNCTION
One may contend that Kelley is no more than a judicial attempt to ban handguns--arguably a legislative function. The allegation that the judiciary has infringed upon the legislative domain is commonly heard today. There can be no doubt, however, that the development of case law is a proper role for the courts. The law has long recognized that the mere absence of precedent does not constitute sufficient reason for refusing relief to a person suffering a wrong. [43] Common-law precedent often proves indeterminate. Furthermore, [Page 493] judges do not view their office so narrowly as to require only a search for and comparison of precedent. [44] To do so would cause the law to stagnate. The common law is not a set of final truths, but rather a series of working hypotheses. [45] As a result, judges must innovate, keeping in mind moral, social, and economic values as well as ideals of justice. [46]
The Kelley court recognized this need for innovation:
This Court has repeatedly said that "the common law is not static; its life and heart is its dynamism--its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems." . . . The common law is, therefore, subject to judicial modification in light of modern circumstances or increased knowledge. . . . Indeed, we have not hesitated to change the common law to permit new actions or remedies where we have concluded that such course was justified. [47]
One might argue that the Kelley court was not modifying the common law but rather usurping a legislative function. This argument would be valid if Kelley were correctly interpreted as a judicial attempt to ban handguns. Kelley is not such an attempt, however. The extension of strict liability to manufacturers or marketers of handguns is no more than a judicial allocation of the costs and risks [48] associated with a specific type of handgun--the Saturday Night Special. Death and injury from bullet wounds are external costs [49] of handgun manufacture that are imposed on handgun victims or society as a whole. The reallocation and internalization of the costs associated with handgun use are judicial functions. By extending strict liability to the manufacturers of Saturday Night Specials, [50] the court places the burden on those manufacturers to [Page 494] determine how to pay the costs associated with those risks. [51] Put simply, a court merely determines who should bear a certain risk and the industry then determines how best to spread the costs of that risk. [52] In essence, the Kelley court simply determined who should bear the risks and costs of manufacturing and selling Saturday Night Specials; it did not determine whether the product should continue to be marketed.
The argument that Kelley infringes upon the legislative domain also assumes that in a democracy all unsettled issues are resolvable only by institutions that are politically accountable. [53] Initially, one must note that Maryland judges are held politically accountable via the electoral process. [54] Secondly, no rule limits judicial review to cases already addressed and clarified by common law or establishes a principle that excludes wider review. [55] It is well established that equity courts exercise broad discretion in the framing of remedies. In developing new areas of strict liability, the Maryland Court of Appeals exercised a long-recognized judicial power to supplement statutory duties with those imposed by the common law. [56]
The Kelley opinion is in keeping with the "grand style" of judicial decisionmaking, in which judges author opinions that depart [Page 495] from precedent while retaining continuity with it. [57] The Court of Appeals has not usurped legislative power but has upheld the common law tradition of responding to societal changes. In this case the court engaged in nothing more than a reallocation of the costs associated with the widespread dissemination and use of handguns having no legitimate social purpose.
III. DEFINING "SATURDAY NIGHT SPECIAL"
Another perceived problem with the Kelley decision is its treatment of the definition of a "Saturday Night Special." Rather than articulate its own standard, the court held that the determination of whether a handgun is a Saturday Night Special should be left to the trier of facts. [58] Before this determination goes to the trier of facts, however, the trial court must first decide whether the gun possesses sufficient characteristics of a Saturday Night Special. [59] Although size and barrel length alone are not sufficient to meet this showing, [60] when they are coupled with other factors there may be a sufficient basis for allowing the issue to go to the trier of facts. These other factors include concealability, cost, quality of materials, quality of manufacture, accuracy, reliability, and industry standards. [61] The court acknowledged that these factors are all relative. [62] Even so, the result is that manufacturers are left without clearly established criteria for determining whether their product subjects them to strict liability under the court's holding.
Indeed, no clear definition of "Saturday Night Special" exists. Typically, discussions of Saturday Night Specials describe the weapons as small, low caliber, poor quality, unreliable, highly inaccurate, and lacking in a sporting purpose. One authority suggests a "relative attractiveness to violent criminals" test. [63] Implicitly this test examines two factors: price and concealability. A handgun that is both inexpensive and easy to conceal would be considered a Saturday Night Special. [64] However, the terms "inexpensive" and "easy to [Page 496] conceal" are also subject to varying interpretations. Thus, this test fails to provide any objective criteria.
One possible method for defining "Saturday Night Special" is to apply the federal government standards used to prevent importation of such weapons. In 1968 Congress passed the Gun Control Act [65] that was later described as an attempt to "stop the flow of cheap, easily concealed, dangerous weapons known in the firearms trade and on the streets of our country as 'Saturday night specials."' [66] In order to prevent these weapons from entering the country, Congress authorized the Department of the Treasury to refuse import authorization for firearms that were not suitable for sporting purposes. [67]
Even though many consumers view handguns as self-defense, rather than sporting, weapons, the Treasury Department (Internal Revenue Service) guidelines provide a useful classification scheme for establishing whether a handgun is a Saturday Night Special. [68] The system assigns each handgun points depending on the various features of the handgun. Pistols that fail to score seventy-five points and revolvers that fail to score forty-five points are denied importation status. The classification scheme is quite detailed and covers a number of characteristics, including: safety features, height, weight, frame construction, caliber, target sights, and target grips. [69] [Page 497]
The result of these federal factoring criteria is the exclusion of very small handguns and handguns without safety devices from importation into the United States. Furthermore, these regulations establish clear standards for the quality of handgun construction. The criteria give a measure of certainty to the process of classifying handguns. Taken together, these standards are relevant measures of handgun quality regardless of whether a handgun is used for self-defense or sporting purposes. As such, these standards are useful as objective criteria for determining if a handgun is a Saturday Night Special. In future cases similar to Kelley, if the handgun qualified for importation under the factoring criteria, the gun manufacturer would not be held liable.
Thus, an objective system exists that may be used to determine whether a gun is a Saturday Night Special. Future adoption of this system or one similar to it would clarify the definitional problems left unanswered in Kelley. In addition, the adoption of such a system would put manufacturers and marketers of handguns on notice of the minimum standards necessary to avoid strict liability.
IV. THE SECOND AMENDMENT
Another possible criticism of Kelley is that it violates the second amendment's guarantee of the right to keep and bear arms. Like the legislative function argument, this argument assumes that Kelley is an attempt to ban handguns. Debate on second amendment interpretation has focused on whether the amendment creates an individual right to bear arms or a collective right guaranteeing that a state can organize its own militia. Analysis of second amendment jurisprudence suggests that even if Kelley effectively banned a certain type of handgun, this would not violate the second amendment.
In United States v. Cruikshank [70] the United States Supreme Court held that the second amendment was a limitation only upon Congress, not upon states or municipalities. [71] Eleven years later in Presser v. Illinois, [72] the Court reiterated the limited scope of the second amendment: " A conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and [Page 498] the national government and not upon that of the states." [73]
Fifty years later, in United States v. Miller, [74] the defendant contended that his conviction for carrying a sawed-off shotgun violated the second amendment. The Supreme Court found that the defendant had not demonstrated that a sawed-off shotgun had any "reasonable relationship to the preservation or efficiency of a well-regulated militia" and thus, no second amendment right was contravened. [75] The purpose of the second amendment, according to the Miller court, was to assure Congress' article I power to "'call forth the Militia to execute the Laws of the Union . . . ."' [76] Thus, the second amendment must be interpreted in light of this purpose. [77]
In Cases v. United States [78] the First Circuit Court of Appeals upheld a conviction under the Federal Firearms Act. [79] The court found that the right to keep and bear arms is not a right guaranteed by the Constitution, "the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right." [80]
Only one case, Quilici v. Village of Morton Grove, [81] expressly analyzed a jurisdiction's ability to ban handguns. In that case, the Village of Morton Grove had passed an ordinance banning, with limited exceptions, the possession of handguns within the village borders. [82] The federal district court found Presser controlling and held that since the second amendment does not apply to the states, it was not infringed by the village ordinance. [83] The plaintiffs argued that Presser supported their position, basing this argument on a quote from Presser: " T he States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms . . . ." [84] The court found that the phrase was taken out of context. The Supreme Court simply meant that [Page 499] when required by the federal government, or absent any regulation, an individual has a right to keep and bear arms. [85]
Accordingly, Kelley does not violate the second amendment. Under Cruikshank and Presser, the second amendment does not apply to the states. Even using a literal interpretation of the Miller test requiring that a weapon bear a reasonable relationship to the preservation of a militia, Kelley would not violate the amendment. The Saturday Night Special is virtually useless for the protection of persons, property, and business because of its inaccuracy and unreliability. [86] The weapon obviously bears no relationship to the preservation of a militia. As a result, Kelley's extension of strict liability to handgun manufacturers or marketers, even if it results in a ban of Saturday Night Specials, does not violate the second amendment.
V. CONCLUSION
The Court of Appeals took a bold step in Kelley. Finding established theories of strict liability inapplicable to hold a gun manufacturer liable for the use of its handgun in a criminal act, the court created a new type of strict liability. Noting a Saturday Night Special's lack of legitimate societal purpose and a legislative policy against such handguns, the court held that strict liability in tort may be imposed upon the manufacturer or marketer of a Saturday Night Special causing injury to an innocent victim during the course of a crime.
This development is innovative and in keeping with the traditional role of the common-law court. The court played a risk-allocation role, not a legislative one, in the Kelley decision. The immediate effect of this risk- allocation role will be to place the cost of a Saturday Night Special's use on those who benefit from that use. The long-term effect of this decision may well be a better system of handgun distribution.
However, the Kelley court did a poor job in establishing standards to help determine if a handgun is a Saturday Night Special. One possible solution to the definition problem is the use of federal Treasury Department regulations, which are presently used to classify handguns appropriate for importation. Finally, an analysis of second [Page 500] amendment jurisprudence leads to the conclusion that Kelley does not violate an individual's right to keep and bear arms.
* The author is a member of the class of 1986, University of Maryland School of Law.
[1]. 304 Md. 124, 497 A.2d 1143 (1985).
[2]. Id. at 157, 497 A.2d at 1159.
[3]. Id. at 133, 497 A.2d at 1147.
[4]. Id. at 136, 497 A.2d at 1148.
[5]. Id. at 138, 497 A.2d at 1149.
[6]. Id. at 157, 497 A.2d at 1159. The theory also requires that a plaintiff be an innocent victim of the criminal act. Thus, a criminal involved in the crime may not file suit under the new cause of action. Id.
[7]. After the Kelley decision by the Maryland Court of Appeals, the case resumed in the United States District Court for the District of Maryland. In December 1986, while awaiting further action in the district court, the plaintiff entered into a stipulation for dismissal. Daily Record (Baltimore, Md.), Dec. 16, 1986, at 1, col. 2. Despite the dismissal of the lawsuit, Kelley remains an important decision in the area of handgun manufacturer liability.
[8]. 304 Md. at 128-29, 497 A.2d at 1145. Kelley was employed at the grocery store where the robbery and shooting took place.
[9]. Id.
[10]. Id. at 129-31, 497 A.2d at 1145-46. Two questions were originally certified to the court:
"1. Is a handgun, which inflicts injury as the norm, rather than the exception, a defective or unreasonably dangerous product?
"2. Is the marketing of handguns an abnormally dangerous activity?
(a) Does the abnormally dangerous activity doctrine extend to instances in which the alleged tortfeasor is not an occupier of land?
(b) Does the abnormally dangerous activity doctrine apply where harm is brought about by some third person or persons, over whom the tortfeasor had no control?"
Id. at 129-30, 497 A.2d at 1145 (quoting the United States District Court). Following oral argument, the district court withdrew the certification order and certified four new questions to the Court of Appeals. The new certification did not rephrase the first question but rephrased the other questions as follows:
"2. Is a Rohm Handgun Model RG38S, which inflicts injury as the norm rather than the exception, a defective or unreasonably dangerous product?
"3. Is the marketing of handguns an abnormally dangerous activity? In answering this question, it may be that the Court of Appeals of Maryland may desire to address the following sub-questions:
(a) Does the abnormally dangerous activity doctrine extend to instances in which the alleged tortfeasor is not an occupier of land?
(b) Does the abnormally dangerous activity doctrine apply where harm is brought about by some third person or persons over whom the tortfeasor had no control?
"4. Is the marketing of Rohm Revolver Handguns Model RG38S an abnormally dangerous activity? In answering this question, it may be that the Court of Appeals of Maryland may desire to address the following sub-questions:
(a) Does the abnormally dangerous activity doctrine extend to instances in which the alleged tortfeasor is not an occupier of land?
(b) Does the abnormally dangerous activity doctrine apply where harm is brought about by some third person or persons over whom the tortfeasor had no control?"
Id. at 130-31, 497 A.2d at 1145-46.
[11]. Id. at 131, 497 A.2d at 1146.
[12]. Id. at 128, 497 A.2d at 1144.
[13]. Id. at 132, 497 A.2d at 1146.
[14]. RESTATEMENT (SECOND) OF TORTS § 519 (1977) states:
(1) 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 harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
RESTATEMENT (SECOND) OF TORTS § 520 (1977) attempts to define "abnormally dangerous":
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) the 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.
[15]. 304 Md. at 133, 497 A.2d at 1147 (citing Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A.2d 757 (1939); Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969); Kirby v. Hylton, 51 Md. App. 365, 443 A.2d 640 (1982)).
[16]. Id.
[17]. Id. This conclusion is in accord with other jurisdictions that have ruled on similar claims. See, e.g., Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985), rev'g Richman v. Charter Arms Corp., 571 F.Supp. 192 (E.D. La. 1983); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200 (7th Cir. 1984); Patterson v. Rohm Gesellschaft, 608 F.Supp. 1206 (N.D. Tex. 1985); Mavilia v. Stoeger Industries, 574 F.Supp. 107 (D.Mass. 1983); Riordan v. International Armament Corp., 132 Ill. App. 3d 642, 477 N.E.2d 1293 (1985); Burkett v. Freedom Arms, 299 Or. 551, 704 P.2d 118 (1985).
For articles criticizing application of either § 519 or § 402A liability to handgun manufacturers, see Makarevick, Manufacturer's Strict Liability for Injuries From a Well-Made Handgun, 24 WM. & MARY L. REV. 467 (1983); Santarelli & Calio, Turning the Gun on Tort Law: Aiming at Courts to Take Products Liability to the Limit, 14 ST. MARY'S L.J. 471 (1983); Note, Handguns and Products Liability, 97 HARV. L. REV. 1912 (1984); Note, Legal Limits of Handgun Manufacturer's Liability for the Criminal Acts of Third Persons, 49 MO. L. REV. 830 (1984). But see Note, Manufacturer's Strict Liability for Handgun Injuries: An Economic Analysis, 73 GEO. L.J. 1437 (1985); Speiser, Disarming the Handgun Problem by Directly Suing Arms Makers, Nat'l L.J., June 8, 1981, at 29, col. 1.
[18]. 304 Md. at 134, 497 A.2d at 1147.
[19]. RESTATEMENT (SECOND) OF TORTS § 402A states:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if,
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
[20]. Id.
[21]. 304 Md. at 136, 497 A.2d at 1148.
[22]. Id. (emphasis in original). "For a handgun to be defective, there would have to be a problem in its manufacture or design . . . that would cause it to fire unexpectedly or otherwise malfunction." Id.
[23]. Id. at 135-36, 497 A.2d at 1148. The "consumer expectations test" states that "a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 432, 573 P.2d 443, 455- 56, 143 Cal. Rptr. 225, 237-38 (1978).
[24]. 304 Md. at 136, 497 A.2d at 1148. The court's refusal to extend § 402A liability to include handguns is in accord with other jurisdictions that have considered the issue. See, e.g., Patterson v. Rohm Gesellschaft, 608 F.Supp. 1206 (N.D. Tex. 1985); Richman v. Charter Arms Corp. 571 F.Supp. 192 (E.D. La. 1983), rev'd on other grounds, 762 F.2d 1250 (5th Cir. 1985); Riordan v. Int'l Armament Corp., 132 Ill. App. 3d 642, 477 N.E.2d 1293 (1985).
[25]. 304 Md. at 138, 497 A.2d at 1149.
[26]. Id. at 137, 497 A.2d at 1149 (quoting Barker, 20 Cal. 3d at 432, 573 P.2d at 456, 143 Cal. Rptr. at 238 (1978)).
[27]. 304 Md. at 138, 497 A.2d at 1149.
[28]. Id. at 141-44, 497 A.2d at 1151-53.
[29]. Maryland's handgun law is codified at MD. ANN. CODE art. 27, §§ 36B-36G (1982 & Supp. 1986).
[30]. MD. ANN. CODE art. 27, § 36B(a) (1982 & Supp. 1986).
[31]. 304 Md. at 144, 497 A.2d at 1152-53.
[32]. Id. at 144, 497 A.2d at 1153.
[33]. 18 U.S.C. §§ 921-928 (1982 & Supp. III 1985). The Act prohibits the importation into the United States of any firearm not specifically excepted. Saturday Night Specials do not meet any of the exceptions defined by the statute.
[34]. The court examined two congressional hearings on Saturday Night Specials: "Saturday Night Special" Handguns: Hearings on S. 2507 Before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. on the Judiciary, 92d Cong., 1st Sess. (1971); Handgun Control Legislation, 1982: Hearings Before the Subcomm. of Criminal Law of the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. (1982). 304 Md. at 145-46 nn.9 & 10, 497 A.2d at 1153-54 nn.9 & 10. The legislative history surrounding the enactment of The Gun Control Act also received the court's attention. Id. at 147-48, 151- 53, 497 A.2d at 1154-55, 1156-57.
[35]. 304 Md. at 153-54, 497 A.2d at 1157-58.
[36]. Id. at 150-54, 497 A.2d at 1156-58.
[37]. Id. at 145-46, 497 A.2d at 1153-54.
[38]. Id. at 146, 497 A.2d at 1154.
[39]. Id. at 155, 497 A.2d at 1158.
[40]. Id. at 157, 497 A.2d at 1159. The court could find no other jurisdiction that distinguished Saturday Night Specials from other guns, but drew an analogy to the decision in Moning v. Alfano, 400 Mich. 425, 254 N.W.2d 759 (1977). In Moning a child was injured by a pellet propelled from a playmate's slingshot. The Supreme Court of Michigan reversed a directed verdict for the manufacturer. The court concluded that the manufacturer could be held liable for marketing the slingshot directly to children because a child's misuse was foreseeable. However, see Bojorquez v. House of Toys, Inc., 62 Cal. App. 3d 930, 133 Cal. Rptr. 483 (Ct. App. 1976), in which the California Court of Appeals, in a situation similar to Moning, declined to impose liability because it would result in a ban by judicial fiat.
In several cases manufacturers have been held liable for failing to discourage the foreseeable misuse of their products. See, e.g., Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968) (manufacturer cannot claim that it is not foreseeable that its automobile may be involved in an accident); Mazzi v. Greenlee Tool Co., 320 F.2d 821 (2d Cir. 1963) (machine operator injured when machine attachment broke and struck operator); Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir. 1962) (child died after eating furniture polish).
[41]. 304 Md. at 157, 497 A.2d at 1159.
[42]. U.S. CONST. amend. II, 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."
[43]. Seigel, Liability of Manufacturers for the Negligent Design and Distribution of Handguns, 6 HAMLINE L. REV. 321, 324 (1983).
[44]. B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 20 (1949).
[45]. Id. at 22-23.
[46]. Id. at 136-37.
[47]. 304 Md. at 140, 497 A.2d at 1150-51 (quoting Harrison v. Montgomery County Bd. of Ed., 295 Md. 442, 460, 456 A.2d 894, 903 (1983)) (citations omitted).
[48]. The question the courts must resolve is who should bear the costs of handgun use. Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1206 (7th Cir. 1984) (Cudahy, J., concurring). In determining who should bear those costs, the court performs a risk-allocation function. If the risk is allocated to a particular industry, the industry then determines how best to spread that risk. Calabresi, Product Liability: Curse or Bulwark of Free Enterprise, 27 CLEV. ST. L. REV. 313, 316-17 (1978).
[49]. W. REYNOLDS, JUDICIAL PROCESS IN A NUTSHELL 145 (1985). "[A]n external cost is simply a cost associated with any activity that burdens someone other than the actor." Id.
[50]. The Kelley decision rests on the notion that manufacturers of Saturday Night Specials are liable for the foreseeable misuse of their product. The basis for such a finding is that the manufacturer has a duty of reasonable care "where the injury resulting from the unintended use was foreseeable or should have been anticipated." Larsen v. General Motors Corp., 391 F.2d 495, 501 (8th Cir. 1968) (citing Simpson Timber Co. v. Parks, 369 F.2d 324 (9th Cir. 1966)).
[51]. Martin, 743 F.2d at 1206 (Cudahy, J., concurring).
[52]. See supra note 48.
[53]. Cf. R. DWORKIN, TAKING RIGHTS SERIOUSLY 141 (1977) (questioning whether democracy requires that all unsettled issues be resolved by institutions that are politically accountable).
[54]. MD. CONST. art. IV, §§ 3, 5A.
[55]. See, e.g., R. DWORKIN, supra note 53 (arguing that the U.S. Constitution provides no such rule).
[56]. For examples of the exercise of this judicial power, see Burch v. Amsterdam Corp., 366 A.2d 1079, 1085 (D.C. 1976) (compliance with the Federal Hazardous Substances Act does not preclude a finding of negligence); Rucker v. Norfolk & W. Ry., 77 Ill. 2d 434, 440, 396 N.E.2d 534, 537 (1979) (federal regulations concerning railroad cars do not preempt state tort law); Mahr v. G.D. Searle & Co., 72 Ill. App. 3d 540, 561, 390 N.E.2d 1214, 1229 (1979) (compliance with Food & Drug Administration warning regulations is only minimal and does not affect duties arising under common law); Michael v. Warner/Chilcott, 91 N.M. 651, 654, 579 P.2d 183, 186 (Ct. App. 1978) (statutes and regulations concerning the sale of drugs merely set minimum standards), cert. denied, 91 N.M. 610, 577 P.2d 1256 (1978); Sherman v. M. Lowenstein & Sons, 28 A.D.2d 922, 282 N.Y.S.2d 142, 143-44 (App. Div. 1967) (compliance with the flammability-testing method prescribed by law for pajama fabric does not preclude a conclusion that the manufacturer was negligent).
[57]. See K. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 36, 401-03 (1960).
[58]. 304 Md. at 157-58, 497 A.2d at 1160.
[59]. Id. at 158, 497 A.2d at 1160.
[60]. Id.
[61]. Id. at 157, 497 A.2d at 1159-60.
[62]. Id.
[63]. Cook, The "Saturday Night Special": An Assessment of Alternative Definitions From A Policy Perspective, 72 J. CRIM. L. & CRIMINOLOGY 1735, 1739 (1981).
[64]. Cook, supra note 63, argues that price is a consideration in determining whether a handgun is a Saturday Night Special. Id. at 1740-41. Statistics seem to bear this out since 40% of handguns used in violent crimes are sold in retail for less than $50.00. Id. at 1740-44.
Concealability is obviously a factor in the criminal's choice of a weapon. According to a study conducted by the Bureau of Alcohol, Tobacco & Firearms, more than two-thirds of the handguns used in violent crimes had a barrel length of three inches or less. Id. at 1743.
[65]. Pub. L. No. 90-618, 82 Stat. 1213 (codified as amended at 18 U.S.C. §§ 921-928 (1982 & Supp. III 1985)).
[66]. 118 CONG. REC. 27,028 (1972) (statement of Sen. Bayh). The court in Kelley noted that the Preamble to the original Gun Control Act stated:
"(7) that the United States has become the dumping ground of the castoff surplus military weapons of other nations, and that the large volume of relatively inexpensive pistols and revolvers (largely worthless for sporting purposes) imported into the United States in recent years, has contributed greatly to lawlessness and to the Nation's law enforcement problems."
304 Md. at 150 & n.14, 497 A.2d at 1156 & n.14.
Senator Bayh's statement was made in support of the Handgun Control Act of 1972, S. 2507, 92d Cong., 2d Sess. (1972). The bill passed the Senate in 1972 but never came to the floor of the House.
[67]. 18 U.S.C. § 925(d)(3) (1982).
[68]. See Dep't of the Treasury, Int'l Rev. Serv., Factoring Criteria for Weapons, Form (11-99), reprinted in Treasury, Postal Service, and General Government Appropriations For Fiscal 1974: Hearings Before Subcomm. on the Treasury, Postal Serv., & Gen'l Gov't Appropriations of the House Comm. on Appropriations, 93rd Cong., 1st Sess. 671 (1973).
[69]. Id.
[70]. 92 U.S. 542 (1875) (defendant claimed municipality's attempt to prevent his possession and use of firearms violated second amendment).
[71]. Id. at 553.
[72]. 116 U.S. 252 (1886) (defendant claimed state statute that regulated the drilling or parading of arms in public violated his second amendment right to carry arms).
[73]. Id. at 265.
[74]. 307 U.S. 174 (1939).
[75]. Id. at 178.
[76]. Id. (quoting U.S. CONST. art. 1, § 8).
[77]. Id.
[78]. 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).
[79]. The defendant was convicted of violating a provision of the Act that prohibited a person, convicted of a crime of violence, from possessing and transporting arms and ammunition. Id. at 919.
[80]. Id. at 921.
[81]. 532 F.Supp. 1169 (N.D. Ill. 1981), aff'd, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
[82]. Id. at 1171.
[83]. Id. at 1182.
[84]. Id. at 1181 (quoting Presser v. Illinois, 116 U.S. 252, 265 (1886)).
[85]. Id. at 1182.
[86]. 304 Md. at 145-46, 497 A.2d at 1153-54.