Northern Kentucky Law Review
Second Amendment Symposium:
Rights in Conflict in the 1980’s
vol. 10, no. 1, 1982: 41.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
MANUFACTURERS' AND SUPPLIERS' LIABILITY TO HANDGUN VICTIMS
by Windle Turley*
On October 4, 1977, outside an Amarillo, Texas, high school, a small .22 caliber handgun accidently discharged and struck 15-year-old David Clancy in the neck. The gun had been purchased by a classmate for $10 and came with two bullets, one of which transformed David Clancy into a quadriplegic and one of the nation's quarter million annual victims of handgun violence.[1] This article considers the application of strict liability in tort as a remedy for victims of handgun violence. The focus is on the small concealable handgun as an unreasonably dangerous product when marketed to the general public. It attempts to answer the question of social policy: Who should bear the responsibility of caring for David Clancy for the rest of his life, and for the thousands of David Clancys injured, every year by these products?
There is an estimated 50,000,000 handguns in the United States today;[2] double the number from 1968,[3] and with 2-1/2 million sold each year,[4] we will live with 100,000,000 of these products by the year 2000. A handgun is sold new in this country every 13 seconds,[5] and every 2-1/2 minutes the product injures someone.[6] Each 20 minutes it is an instrument of death,[7] earning it a rank second only to motor vehicles as the cause of unnatural deaths in this country.[8] Although handguns comprise only about 30% of the firearms in [Page 42] public hands, these products produce 90% of the firearm misuse,[9] resulting in some 22,000 handgun deaths annually in this country alone.[10]
Although the handgun control dialogue has almost always focused upon criminal misuse, an examination of handgun related deaths reveals the criminal focus to be misplaced. A felonious intent to criminally misuse the handgun can be found in less than 17% of the deaths attributable to handguns.[11] (See Chart 1).
CHART 1
U.S. HANDGUN DEATHS IN 1979
CONDUCT
DEATHS
PER YEARPERCENT OF
TOTAL HANDGUN
DEATHSPREMEDITATED
CRIMINAL
MISUSE
Suicide 11,000[12]
50%
NO
Accidental
Shootings1,200[13]
6%
NO
Shootings Resulting
Spontaneously
During Arguments6,500[14]
29%
NO
Homicides* 3,300[15]
15%
YES
*Many of these are thought to be "unintended" in the premeditated context. More handgun deaths result from spontaneous aggression coupled with the ready availability of a handgun than from premeditated [Page 43] homicides. In fact, 52% of all the murder victims in 1979 were acquainted with their assailants, and one out of every five victims was related to the offender.[16]
Although the product itself is relatively inexpensive,[17] the cost handguns exact of our society is staggering. At Huron Road Hospital in Cleveland, the yearly cost for treatment of gunshot wounds alone amounted to nearly $250,000 a year in the mid 1970's.[18] When the cost expended for handgun injury treatment at the other major hospitals in Cleveland was added, Cleveland, Ohio, alone spent $1.5 million annually in treating gunshot injuries. An estimated $500 million is spent nationwide.[19] While the annual cost to the nation's GNP has not been precisely determined, studies such as those from Huron Road Hospital, coupled with 22,000 lives lost per year, yield conservative estimates exceeding 20 billion dollars a year as a direct national cost.[20] Despite these alarming trends, handgun suppliers enjoy virtual immunity from liability for the deaths and injuries caused by their products.
THE TORT LAW THEORY
Before considering why a concealable handgun, marketed to the general public, is likely to be deemed an unreasonably dangerous product, consider the past. Historically, the first purpose of tort law is to prevent injury. Only when it fails in prevention of injury does the tort law serve its secondary purpose: to recompense the victim for wrongful losses.[21] The development of tort law in this country during the last century has been punctuated by the stripping away of the common law immunities that once served to insulate tortfeasors from liability for their conduct. The immunities of government have been significantly eroded at the national level by [Page 44] passage of the Federal Tort Claims Act,[22] at the state level by various state tort claims acts[23] and at the local level by allowing municipalities to be sued for torts arising from activities that are "proprietary" in nature.[24] "Charitable" and "host-driver" immunities that once prevented hospital patients and vehicle guests from seeking restitution when negligence caused their injuries are now the exceptions.[25]
One of the recent and most significant advances in tort law, however, was the decline and virtual emasculation of manufacturer immunity from liability for their defective products. The English rule of Winterbottom v. Wright,[26] as applied by American courts,[27] had disallowed suits against a product manufacturer unless the injured plaintiff had purchased the product directly from the manufacturer; an almost non-existent occurrence after the industrial revolution. With the industrial revolution came a need to protect the public from dangerous instrumentalities produced by laissez faire capitalism. This need prompted courts to carve away at the Winterbottom immunity. While initially liability exceptions were created for "dangerous instrumentalities,"[28] they soon began to arise in cases involving food,[29] beverages,[30] drugs,[31] and firearms.[32] MacPherson v. Buick Motor Co.,[33] finally abolished the privity re- [Page 45] quirement in cases in which the manufacturer negligently made or sold a defective product, and begat Henningsen v. Bloomfield Motors,[34] thus resulting in the birth of theories of implied warranty running with the goods to the ultimate consumer.[35]
By 1963, the law continued to respond to technology and the stage was set for the fountainhead of strict liability for defective products in Greenman v. Yuba Power Products, Inc.[36] Greenman had sustained a head injury resulting from an object thrown by a defective lathe. Justice Traynor, writing for the California Supreme Court, advanced the view that a plaintiff injured by a product should not be required to meet the difficult task of proving a manufacturer negligent. Instead, a manufacturer who elects to market a product incurs liability when the article proves to have a defect that causes injury.[37] "The purpose of such [strict] liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves."[38]
Within two years, the Restatement (Second) of Torts, § 402A, was published. It imposed liability upon the seller of defective, "unreasonably dangerous" products that caused injury. The degree of care that may have been exercised by the seller in preparing or marketing the product did not affect liability.[39] The rationale behind § 402A was expressly set out in Comment c: "[Because con- [Page 46] sumers must rely on the expertise of sellers], . . . public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained.[40]
The social policy undergirding strict product liability is clear. First, to impose responsibility on suppliers in order to discourage distribution of dangerous products. Second, to transfer the loss occasioned by dangerous products from the often innocent victim, or the state, to the manufacturer and supplier. Thus, the cost of injury and death for that product is ultimately borne by those other consumers that exercise their freedom of choice to purchase these same products. The true product cost to society is soon known and the free market place then determines whether the product is worth that cost to society. If the cost to insure against the risk imposed by a particular product is too large, then the product in that form must ultimately be withdrawn from the public market. In strict product liability the focus is on the product, not on the conduct of either the supplier or the user.[41] It recognizes that product design is easily controlled, while human nature and conduct can never be fully regulated.
In addressing the question of David Clancy ¾ who should bear his loss? ¾ the focus will center upon the product which caused David's injuries, the handgun. If the product is one that engages the theory of strict liability, i.e., one that is defective, then the answer is clear. Social policy and the common law have mandated that the handgun supplier, and through it consumers who purchase the dangerous product, should absorb the loss: first, because the manufacturer elected to place a dangerous instrumentality into the stream of commerce, and, second, because those consumers who purchase the handgun and perpetuate the industry should also pay the societal cost for the product.
Substantive Considerations for Handgun Liability
Forty-seven jurisdictions now recognize a duty on the part of the manufacturers and suppliers of products under some form of § 402A strict liability.[42] Three developments in strict product liabil- [Page 47] ity law have set the stage for its application to handgun suppliers.
Bystanders
First, the courts quickly extended rights of recovery under strict product liability beyond the initial consumer to bystanders and other third persons not in the chain of commerce.[43] Unlike many products, violent injury and death inflicted by handguns most often affects bystanders and other non-purchasers of the weapon. While a non-consumer injury presents difficult problems in warranty and some negligence cases, it poses no serious obstacle under strict product liability theories. Again the focus is on the product and whether it presented an unreasonable danger to anyone, not whether it behaved in a way other than anticipated by the purchaser.
Foreseeability
The product supplier must anticipate the environment in which its product may be used and must design its product to be reasonably safe for that anticipated environment of use.[44] Thus, the manufacturer may no longer circumscribe the ambits of its responsibility by contending the product was not used strictly as intended. Allowing the manufacturer to take such a position would amount to a complete about-face in products liability law, resulting ultimately in a return to the MacPherson[45] days when absolute caveat emptor prevailed. Realizing that that approach would frustrate the policy goals of strict tort liability, the 7th Circuit, in Huff v. White Motor Co.,[46] reversed their previous holding in Evans v. General Motors Corp.,[47] which had held that an automobile manufacturer was not under a duty to produce automobiles designed to crash in a reasonably safe manner, because accidents were not the intended use of automobiles.[48]
Following the earlier 8th Circuit decision in Larsen v. General Motors Corp.,[49] Huff, held the manufacturer of a tractor-truck had a duty to design a vehicle that would crash in a reasonably safe [Page 48] manner, recognizing "[t]he intended use of a vehicle encompasses the normal incidents of its being driven on the streets and highways, including the potentiality of collisions.[50] The court criticized the Evans "intended purpose" rationale as unrealistically narrow[51] in light of the obvious risks attendant to a dangerous product in its foreseeable environment against which the manufacturer could easily take precautions.[52]
Handgun suppliers universally contend that the intended purpose of their products does not encompass murder, suicide, or accidental shootings. The alarming frequency with which these events occur, however, precludes the supplier from closing its eyes to the real world where its product functions. While the suppliers argue that the "intended purpose" of the handgun is for target-shooting, hunting, police use, or so-called self-protection, suppliers of these products must face the naked fact that handguns represent the second leading cause of unnatural death in this country.[53] It is, as the Huff Court pointed out, "unrealistically narrow" to impose liability upon the sellers of these dangerous products only for injuries and deaths resulting from their narrow "intended use."
While recoveries under a negligence theory often may be defeated by the product supplier demonstrating intervening or superseeding third-party conduct,[54] such intervention in a strict liability action will not ordinarily eliminate a recovery, provided the occurrence is reasonably foreseeable to the supplier. If the intervening force is foreseeable to the defendant, which is a question of fact,[55] then a duty exists to guard against the occurrence. or minimize its impact.[56] It is not required that the defendant foresee the precise [Page 49] events, but rather that the defendant supplier reasonably anticipate such an occurrence.[57] It has been held, for example, that the supplier of a handgun should foresee that a purchaser of such a product might fire the weapon in connection with a robbery.[58]
The "Defect"' Question
Strict liability predicated on § 402A still requires the plaintiff to prove the existence of a "defect" rendering the product unreasonably dangerous.[59] There are at least three categories or combinations of conditions that may render a product "defective" and unreasonably dangerous. They are "manufacturing," "design," and marketing," or some combination of these three.[60] Manufacturing defects are those conditions in products arising because they do not comport with the design standards of the manufacturer.[61] Since this article focuses on handguns that are manufactured as intended, "manufacturing" defects will not be discussed here. An action based on design defect, on the other hand, examines the propriety of an entire product line,[62] and may attack the design of a single component part or system, or may challenge the entire final product. A "marketing" defect consists of a failure to properly warn or adequately instruct consumers as to the product. The absence of adequate warnings or instructions will render the product unreasonably dangerous.[63] It is the "design" defect in its broad sense, combined with an inability to safely "market" concealable handguns, that forms the framework for this paper: whether small concealable handguns are unreasonably dangerous products when marketed to the general public? [Page 50]
Test for Defective Design
Motivated by the realization that many products may have both utility and danger,[64] commentators suggested and many courts now agree that the existence of a design defect should be determined by balancing the risk of harm presented by the product design against the utility of that design.[65] One of the first cases to adopt the risk versus utility test was Barker v. Lull Engineering Co. Inc.,[66] a California Supreme Court decision involving a defective high-lift loader. The court said:
[A] product may be found defective in, design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies 'excessive preventable danger' or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.[67]
A balancing of the risk versus utility in design cases has already been embraced in several jurisdictions. New Jersey,[68] Alaska,[69] Illinois,[70] Iowa,[71] Massachusetts,[72] Pennsylvania,[73] and Texas[74] currently apply this test in product liability cases involving allegations of design defect. Prior to the recent shift to a test balancing design risk against utility, the predominate test for defectiveness had been one of "consumer expectation."[75] Under that test, we would have asked the jury whether the handgun performed as reasonably expected. Today, however, a jury in the above jurisdictions will be asked to determine whether the handgun design presents hazards and costs to society in excess of any socially acceptable utility of its design. Even in states not yet expressly adopting the "balancing [Page 51] test," juries generally hear evidence and deliberate on the relative merits of the risks of the design versus its utility.[76]
Any examination of the safety of a product design must consider the methods adopted to market the product and the character of the expected users. Some products present such a low level of risk that they can be safely marketed to the general public, even to children, with few, if any, warnings. Adult clothing and children's toys are examples. Other products present a risk of harm that can be substantially eliminated by simple warnings and instructions. Over-the-counter medications and household cleaning products are illustrative.
The third level of danger are those inherently products that may have some useful purpose, but are excessively dangerous when marketed to the general public, even with extensive warnings. The sale of these products, of which explosives and prescription drugs are examples, is restricted to limited purchasers with special training and needs. There exists a final fourth category of product design. These products are so dangerous that even with instructions and warnings, any useful purpose of the product is so far outweighed by its potential danger that it will not be sold to even a restricted market. Nuclear devices and D.D.T. are examples of this category. [Page 52]
CHART 2
CATEGORY POTENTIAL
DANGER
LEVELINSTRUCTIONS
& WARNINGS
NECESSARYMARKETED
TO GEN.
PUBLICMARKETING
RESTRICTEDEXAMPLES
1 Lowest No Yes No Toys, clothing, some household goods 2 Low Yes Yes No Over-counter medications, household sprays and cleaners, power tools, family autos 3 High Yes No Yes Handguns,* prescription drugs, chemicals, explosives, high performance race care 4 Highest N/A No Yes Nuclear devices, toxic chemicals *should be marketed in this category.
Congress,[77] state legislatures,[78] and courts throughout the country[79] have time and again inferred that handguns, at least of the [Page 53] design sold in the United States today, are by their nature inherently dangerous products. This fact alone, although acknowledged by the industry, does not impose liability on the supplier. Only when the danger is unreasonable to users and bystanders will liability be imposed.
As evidenced by Chart 2, a product design, although acceptably dangerous when marketed in one manner, may become unreasonably and unacceptably dangerous when marketed to another classification of consumer or without adequate warnings and instructions. Handguns, although carrying a "high" danger level in category 3, are currently marketed to the general public as a category 2 product. Since most handgun victims are either bystanders or persons emotionally beyond control, warnings and instructions are not likely to be effective.[80]
The central issue is thus reached. Can concealable handguns, with generally ineffective warnings and instructions, be safely marketed to the general public? Or must the product, like certain drugs, dangerous chemicals, and high performance vehicles, have its sale restricted to trained users under controlled conditions? There appears to be ample evidence to support a limitation on the sale of handguns to a market restricted to law enforcement, military use and sport shooting clubs. The risk versus utility analysis provides a ready vehicle for imposing strict liability on handgun suppliers. In Turner v. General Motors Corp.,[81] the Texas Supreme Court identified a number of evidentiary factors that might be considered by a jury in determining whether a product's design was defective. They included usefulness and desirability, the likelihood of injury, and alternative designs.[82] Another consideration is the suppliers' ability to eliminate the unsafe nature of the product without seriously impairing its usefulness.[83] When the risk versus utility test is applied to handguns marketed indiscriminately to the general public, and factors such as those outlined in Turner are supported by the statistical evidence showing high risk of harm and low utility, then juries are likely to be compelled to find that the handgun, when so marketed, is an unacceptably dangerous [Page 54] product.
The Restatement recognizes that some products carry a high risk of injury even when manufactured as safe as existing technology will allow. They are, however, so beneficial that producing and marketing the products is justified even in the face of such risk.[84] These products termed "unavoidably unsafe" by the Restatement[85] are frequently drugs which, although carrying a possibility of adverse reaction, are not unreasonably dangerous because their benefit to society is so substantial.
Simply because the product is designed as safe as technologically possible does not make it an acceptable, although "unavoidably unsafe" product. It is a universal rule that a product may perform precisely as it was designed and intended, yet be unreasonably dangerous so as to subject the manufacturer to a § 402A liability.[86] Even so-called unavoidably unsafe products must demonstrate a benefit that outweighs their hazards.[87] While it may be conceded that many handguns are made as safe as any handgun can be made, if the surrounding danger incident to its use outweighs any acceptable usefulness, then the handgun product is "defective" and unreasonably dangerous rather than "unavoidably unsafe."
The Supporting Evidence of Defect
The issue whether the risk of harm presented by a handgun marketed to the general public outweighs the utility of such product may now be addressed. It is important to understand that substantial design differences may exist as to products within a family of [Page 55] products. It is unlikely a jury will find all firearms present an unreasonable danger just as various knives present different levels of danger. A butcher knife and a switchblade are both capable of killing, but under the risk versus utility analysis, only the switchblade is likely to be found "unreasonably dangerous" due to its lack of socially acceptable utility. Some rifles and shotguns, when marketed with adequate guidelines, may in fact carry a socially redeeming utility.
Indiscriminate marketing of handguns to the general public has created enormous availability of these products. There are twice as many handguns in the United States today as there were in 1969,[88] a clear indication that the Gun Control Act of 1968 has done very little to stem handgun proliferation. Any one individual who wants a handgun in this country can acquire one. For years, eminently respected social scientists, psychologists, epidemiologists, criminologists and law enforcement personnel have cited the ready availability of the handgun as a cause of injury and death in America.[89]
Suicides
Of the 27,000 suicides that occur every year in this country, approximately 40% of the victims use a handgun.[90] Handguns are clearly the weapon of choice among persons ending their own lives. There is no close second. The next leading methods of suicide are poisoning and hanging, each of which comprises about 13% of all suicides.[91] Given the availability of handguns in the United States, the likelihood that the mere access to a handgun constitutes part of the causal chain leading to a suicide seems clear. The correlation between a sharply increasing rate of suicide by handguns and handgun availability has been well documented.[92] From 1970 to [Page 56] 1977, the average number of annual suicides increased by 5,200, and 83% of the increase was suicide by firearms.[93] A seriously depressed person with a handgun and the knowledge of a quick and effective way of ending his life does not need to expend nearly the time or effort to pull a trigger as to assemble enough drugs to kill. Suicide with a handgun is easier and quicker. Social scientists have noted that a substantial number of persons suffering from a suicidal impulse during emotional distress are more easily able to obtain firearms than they are able to obtain lethal drugs, most of which are governed by strict regulation for their dispensation.[94] Also, accumulating a sufficient supply of drugs or preparing for a hanging requires time during which the depressed person may reconsider the impulse. Unlike the other available methods, there are few suicide gestures with handguns. Persons choosing firearms as a means of suicide are more often successful in taking their lives than persons choosing, for example, barbituates. In their 1970 report to the National Commission on the Causes and Prevention of Violence, Newton and Zimring surveyed attempted and completed suicides in the Los Angeles area. Persons using firearms died 75% of the time, while those choosing barbituates died in only 15% of the cases.[95] The opportunity for intervention or rescue to interrupt the suicide process is vitually non-existent when a handgun is used.
Accidents
The availability of handguns to the general public has resulted in an average of 1,400 accidental handgun deaths per year for the past ten years.[96] So many of these victims are children, that the Surgeon General's Select Panel for the Promotion of Child Health has labeled the handgun as a primary culprit behind an epidemic of accidental deaths and injuries among children.[97] [Page 57]
The handgun has long been seen and associated with aggressive behavior in our society. The use of guns in movies, televisions, and even childrens' programs has for years deeply engrained into the minds of our nation's children the idea that the use of guns is a socially acceptable method of problem solving. Many children today have a diminished capacity to understand the irreversibility of death, and to appreciate the consequences of pulling a trigger.[98] Indeed, it has been estimated that between the ages of 5 and 15, the average American child will view the killing of more then 13,000 persons on television.[99] Given this bombardment, it is understandable that children have little appreciation for the true danger inherent in a handgun, but have extensive knowledge of how to point a gun and pull the trigger.
Despite the rapidly increasing number of handguns purchased for home use, and despite the fact that hundreds of children are accidently shot to death each year, revolvers are not sold equipped with any type of external or manual safety that would make the handgun reasonably child-resistant. Child-resistant medicine bottle caps have saved the lives of hundreds of children each year. Today's revolver, however, enables a child to fire a handgun easier than he can remove the safety cap from mother's bottle of aspirin.
Impulsive Shootings
A handgun is also the most frequent instrumentality by which a spouse, parent, child, or acquaintance is killed or injured during a heated argument.[100] More than half the deaths classified as "homicides" are actually the result of quarrels leading to spontaneous or impulsive shootings, in which, most victims are killed by people who knew them or were related to them,[101] and which are shootings that occur during the heat of passion, with alcohol often involved.[102] The weapon of choice, again, is the readily available [Page 58] handgun.[103]
It has been suggested that the mere presence of a gun incites, a violent tendency.
. . . [S]timuli that have been repeatedly connected with a certain type of action are capable of evoking that response on later occasions. If a certain stimulus (such as a handgun) has been repeatedly connected with aggressive behavior, it will be able to elicit aggressive responses from people who are ready to act aggressively.[104]
Thus, while it is true that the finger is on the trigger, the trigger may also be pulling the finger.[105]
Knives, which are much more readily available (only 3 per household will yield a quarter billion knives in the U.S.),[106] are a distant second as a weapon of choice.[107] Guns have been referred to as the tool of the cowardly, for it is psychologically far easier to pull a trigger 10 or 20 feet away from the victim than to touch their body with a knife. Thus,. many persons inclined to use a gun would never possess the capability to use a knife.[108] Although only one shot is sufficient to cause death in 70% of all handgun homicides,[109] the knife is not nearly as effective. Knife deaths per 100 reported knife attacks is less than 1/5 the rate of gun deaths.[110] Despite the availability of knives as a possible substitute weapon, one must conclude the homicide rate would significantly decline were it not for the easy and ready availability of handguns.
Criminal Misuse
Although comprising less than 15% of handgun violence,[111] criminal misuse is stimulated by the product's ready availability. Handguns are used in 50% of all murders,[112] 23% of aggravated assaults,[113] and 40% of all robberies.[114] In 1980, handguns were the [Page 59] products used in some 220,000 robberies and 157,000 aggravated assaults.[115] The reason handguns are popular among criminals lies in the effectiveness, availability and concealability of the weapons. Criminals need a weapon that will intimidate, yet be concealable so as to disguise the criminal purpose. At the same time it must be quickly available and effective. A handgun is a readily available product that meets the sespecifications.
Illusion of Utility
The risk of injury or death from the mere presence of a handgun should, by now, be apparent. But does that risk outweigh the usefulness or utility of this product when marketed over the counter to the general public? If so, then a judicial determination that it is an "unreasonably dangerous" product should be expected.
One recent poll indicates that at least 43% of all the persons owning handguns do so for "self-protection."[116] Records show, however, that at best, a handgun creates only an illusion of safety and at worst, it endangers the life of its owner. The handgun is of almost no utility in defending one's home against burglars. A Case Western Reserve University study showed that a handgun brought into the home for the purposes of self-protection is six times more likely to kill a relative or acquaintance than to repel a burglar.[117] When homicides and suicides are added, this figure increases fifty-fold.[118] Since 90% of all residential burglaries are committed when no one is home,[119] the homeowner's life is rarely endangered by burglars.
That fact alone illustrates a far greater likelihood that the handgun will be stolen rather than used for self-protection. It has been estimated that 275,000 handguns (most purchased for self-protection) are stolen each year and turned back against society.[120] Fur- [Page 60] ther, although a burglary is committed in the United States every 10 seconds,[121] there are 80,000,000 residences in this country.[122] If one assumes a home was never burglarized twice, an assumption contrary to actual patterns, and couples this with the fact that in 9 out of 10 times the resident will not be home, statistically it will take more than 120 years for any member of your family to even have an opportunity to confront a burglar, and actual confrontation increases the likelihood of injury.[123]
The handgun is also of questionable utility in protecting against robbery, mugging or assault. In one survey of robberies and attempted robberies, even when the victim responded with a weapon, the robbery was completed 4 out of 10 times,[124] and victims who responded with the weapons were injured twice as often as those who did not.[125] The element of surprise the robber has over his victim makes handguns ineffective against robbery.[126] The victim of a street robbery, for instance, "seldom recognizes his predicament until it is too late to defend himself except by engaging in a gun battle at great risk to his life."[127]
A survey of Chicago robberies in 1975 revealed that, of those victims taking no resistance measures, the probability of death was 7.67 per 1000 robbery incidents, while the death rate among those taking self-protection measures was 64.29 per 1000 robbery incidents.[128] The victim was 8 times more likely to be killed when using a self-protective measure than not!
Although handguns possess little or no utility as self-protection devices, some may have a socially acceptable value when properly marketed under restricted guidelines. Law enforcement activities, at least in this country, still require police officers, when necessary, to carry handguns. Producing handguns for law enforcement use, however, does not necessitate or justify marketing these products over the counter to the general public. Certain high-quality handguns may be suitable for sport-shooting purposes and still others may be suitable for collecting. Even these uses, however, do not [Page 61] justify the 22,000 deaths per year that result from marketing handguns to the general public. Sport-shooting clubs can easily continue activities under more restrictive handgun marketing plans that do not include marketing to the general public.
Conclusion
The small $10, .22 caliber handgun that deprived David Clancy of his ability to walk has no serious utility in modern society. The intentional or accidental infliction of injury or death by lay citizens toward each other is not, in this country, an acceptable function for any product. The risk of harm, on the other hand, is substantial. When balanced against the utility, or more accurately the lack thereof, the risk of harm easily predominates. A jury should be expected to conclude the product is unreasonably dangerous if marketed to the general public.
The intervening act by David's classmate, while one of negligence, was clearly foreseeable and predictable to the seller and manufacturer. The manufacturer should therefore not be excused from liability for marketing a defective and unreasonably dangerous product simply because the gun was used, or misused, in a foreseeable manner. When a manufacturer or retailer chooses to produce a product and sell it for profit, that supplier, and through it that product's consumer, must bear the consequences for the unacceptable damage that product causes. Social policy dictates that this must be the case.
It is both proper and necessary that the courts recognize this existing duty as to handgun suppliers. The courts have already stimulated the development of much needed higher levels of safety in the automotive and aviation industries, where strong lobbies had paralyzed Congress from enacting reasonable safety standards. No lobby is stronger than the gun lobby in its committment to sacrifice 22,000 Americans a year for a "mythical" right[129] and illusory protection.
The theory advanced herein is not a theory of absolute liability. It is merely urged that a supplier of handguns be subject to the same rules of law as the other manufacturers and suppliers of consumer products. There is no sound reason in law or in equity to grant handgun manufacturers any special immunity from responsibility for physical harm caused by their products when the risk of [Page 62] injury and death so far outweighs any social utility the product may possess.
If a product is so dangerous as to inflict widespread harm, it is ironic to exempt the manufacturer from liability on the ground that any other sample of his product would produce like harm. If we scrutinize deviations from a norm of safety as a basis for imposing liability, should we not scrutinize all the more the product whose norm is danger?[130]
It would be ludicrous to. assert that a small, easily concealable handgun, when marketed to the general public, is not "inherently dangerous." In fact, judges and commentators have inferred that the typical handgun is an inherently dangerous product.[131]
It is this writer's opinion that the estimated sixty suits that have already been filed against handgun manufacturers and suppliers premised on theories of strict liability as described above, will grow to 200 in a year. In a number of these cases the plaintiff will prevail; and these suits are likely to involve the more seriously damaged victims. Damages to quadriplegics today are measured in multiples of millions of dollars, a fact not surprising since their demonstrated economic losses often range from five to ten million dollars. The question may no longer be whether product liability laws will impact handgun suppliers, but rather how large will be their own self-imposed destruction.
As long as the handgun manufacturers and sellers seek immunity for their unreasonably dangerous products, the handgun is going to continue to represent a tragic symbol in this country. Whether it is strapped on a police officer, or is in someone's jacket, bedside table, or glove compartment, the handgun will remain a symbol of the ultimate solution to man's conflicts ¾ the destruction of another human being.
*Senior Attorney in Law Firm, Windle Turley, P.C., Dallas, Texas. The author gratefully acknowledges the assistance of Cliff Harrison, Attorney, in preparing this article.
1. U.S. Dep't. of Justice, F.B.I. Uniform Crime Reports 130 (1980); Mortality Statistics Branch, Div. of Vital Statistics, Nat'l Center for Health Statistics, Vital Statistics of the U.S., vol. 2, Mortality 23 (1981).
2. Bureau of Alcohol, Tobacco and Firearms Statistics (1980), cited in Federal Regulation of Firearms, Report to the Senate Judiciary Comm., at 2 (1982). [hereinafter cited as Firearms].
3. Id.; see also G. NEWTON & F. ZIMRING, FIREARMS AND VIOLENCE IN AMERICAN LIFE 6 (1970).
4. Firearms, supra note 2, at 6, based upon reports to Bureau of Alcohol, Tobacco and Firearms by handgun manufacturers.
5. Id., obtained by dividing the number of seconds in one year by the number of handgm provided in a year.
6. Report of the U.S. Attorney General's Task Force on Violent Crime (1979); see also F.B.I. Uniform Crime Reports, supra note 2, at 6-21.
7. Report of the U.S. Attorney General's Task Force on Violent Crime (1979).
8. F.B.I. Uniform Crime Reports, Vital Statistics of the United States, supra note 1.
9. Bureau of Alcohol, Tobacco and Firearms estimate, Firearms, supra note 2, stating that there are approximately 170 million firearms in the United States today. The 90% misuse figure is extrapolated from the annual statistics reported in F.B.I. Uniform Crime Reports (1980).
10. U.S. Dep't of Justice, F.B.I. Uniform Crime Reports 5-21 (1981); Vital Statistics of the US., supra note 1.
11. U.S. Dep't of Justice, F.B.I. Uniform Crime Reports 12 (1979).
12. Mortality Statistics Branch, Div. of Vital Statistics, Nat’l Center for Health Statistics, Vital Statistics of the US. vol. 2, Mortality 35 (1980).
13. Id., based upon estimates by the National Center for Health Statistics that handguns are used in a minimum of 62.5% of all accidental firearms deaths. An average of 2,000 accidental firearms deaths per year has been reported by the National Center for the past six years. See Mortality Statistics Branch, Div. of Vital Statistics, Nat'l Center for Health Statistics, Vital Statistics of the US., vol. 2, Mortality (1975-1981).
14. F.B.I. Uniform Crime Reports, supra note 11, at 12.
15. Id.
16. Id. at 11.
17. Of the 144 confiscated by the New York Police Department in the single month of October, 1975, slightly over 30% retailed for $50 or less, and 40% sold for $60-$120. Brill, Firearm Abuse: A Research and Policy Report, POLICE FOUNDATION, 56-57 (1977). Given the effect of inflation, the price has increased, but the average price remains under $300, with some changing hands for as little as $10.
18. Ram, Geldes and Bueno, Health Care Costs of Gunshot Wounds, 73 OHIO ST. MED. Assoc. J. 437 (1977).
19. Id.
20. National Forum on Handgun Control, United States Conference of Mayors (1975).
21. See generally, W. PROSSER, HANDBOOK OF THE LAW of TORTS 6 (4th ed. 1971); Wright, Introduction to the Law of Torts, CAMB. L.J. 238 (1944). A detailed analytical consideration of how far present rules of tort liability are consistent with a basis of deterrence may be found in Williams, The Aims of the Law of Tort, 4 CURRENT LEGIS. PROBS. 137(1951)
22. 28 U.S.C.A. §§ 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-80 (1976),
23. For an exhaustive summary of the statutes and common law of each state with regard to sovereign immunity, see Leflar & Kantrowitz, Tort Liability of the States, 29 N.Y.U. L. REV. 1363 (1954).
24. PROSSER, supra note 21, at 977-78.
25. For a detailed treatment of the overthrow of the charitable immunities in the various jurisdictions, see PROSSER, supra note 21, at 994-96.
26. 152 Eng. Rep. 402 (Ex. 1842) (stating, arguably in dicta, that the breach of a contract to keep a mail coach in repair after it was sold could give no cause of action to a passenger in the coach who was injured when it collapsed).
27. Anderson v. Linton, 178 F.2d 304, 307 (7th Cir. 1949); See also R. HURSH & H. BAILEY, AMERICAN LAW OF PRODUCTS LIABILITY § 10:3 (2d ed. 1974); and Maryland ex rel Woodzell v. Garzell Plastics, Indus. Inc., 152 F. Supp. 483 (E.D. Mich. 1957) (where it was recognized that courts which applied the rule of Winterbottom v. Wright, as authority for the proposition that manufacturers could not be liable for negligence in the making of their goods except to their immediate vendees did so in disregard of the actual facts of the case and the nature of the holding therein).
28. Thomas v. Winchester, 6 N.Y. 397 (1852).
29. Tomlinson v. Armour & Co., 75 N.J. 748, 70 A. 314 (1908).
30. Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791 (1914).
31. Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S.E. 118 (1889).
32. Herman v. Markham Air Rifle Co., 258 F. 475 (E.D. Mich. 1918).
33. 217 N.Y. 382, 111 N.E. 1050 (1916) (held that the manufacturer of an automobile who sold it to a dealer was liable to the ultimate purchaser for injuries to the purchaser caused by negligence in the manufacture or inspection of the vehicle. This rule was later embodied in RESTATEMENT (SECOND) OF TORTS § 395 (1965)).
34. 32 N.J. 358, 161 A.2d 69 (1960).
35. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 YALE L. J. 1099, 1126 (1960).
36. 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P.2d 897 (1962).
37. Id. at 377 P.2d at 901; see also Escola v. Coca-Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436 (1944) (in which Justice Traynor, IS years earlier, had expressed his view).
38. 377 P.2d at 901.
39. The complete text of RESTATEMENT (SECOND) OF TORTS § 402A (1965) reads as follows.
(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 side of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
40. RESTATEMENT (SECOND) OF TORTS, § 402A, comment c (1965).
41. Id.; see also Aller v. Rodgers Mach. Mfg. Co., Inc., 268 N.W.2d 830 (Iowa 1978).
42. 1 PROD. LIAB. REP. (CCH) ¶ 4016. The 402A rule or a variation of it has been adopted in all states except North Carolina, Virginia and Wyoming.
43. Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex. 1969).
44. Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977); see also Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968).
45. MacPherson v. Buick Motor Co., 217 N.Y. 382, III N.E. 1050 (1960).
46. 565 F.2d 104 (7th Cir. 1977).
47. 359 F.2d 822 (7th Cir. 1966).
48. Id. at 825.
49. 391 F.2d 495 (8th Cir. 1968).
50. 565 F.2d at 110 (emphasis added).
51. Id. at 108.
52. Id. at 109.
53. Vital Statistics of the United States, supra note 1, at 28.
54. Keet v. Service Mach. Co. Inc., 472 F.2d 138 (6th Cir. 1972). See also Smith v. Hobart Mfg. Co., 302 F.2d 570 (3rd Cir. 1962), on remand 31 F.R.D. 581 (E.D. Pa. 1962); M. Dietz & Sons, Inc. v. Miller, 43 N.J. Super. 334, 128 A.2d 719 (1957).
55. Palmisano v. Ehrig, 171 N.J. Super. 310, 408 A.2d 1083 (1979) cert den., 82 N.J. 287, 412 A.2d 793 (1980). In this can, owners of a home had taken an extended vacation. while gone, their son entered the house with friends, one of whom caused a firearm to discharge through the roof, injuring plaintiff who lived on the floor above. The court held that whether the homeowners should have foreseen the intervening acts of their son's friends was a question of fact for the jury. 408 A.2d at 1084.
56. Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977). See also Becker v. Colonial Parking, Inc., 409 F.2d 1130 (D.C. Cir. 1969); Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968); Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir. 1962).
57. 408 A.2d at 1085.
58. Franco v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977). But see DeRosa v. Remington Arms Co., Inc., 509 F. Supp. 762 (E.D. N.Y. 1981) (in which the court said that the intervening negligence of a police officer in failing to use a safety device on a specially manufactured shotgun is not foreseeable to the manufacturer. However, it is submitted that this language represents dicta, in that the court hold there existed no defect in the shotgun's design and therefore should have never reached the "unforeseeably intervening act" issue).
59. RESTATEMENT (SECOND) or TORTS § 402A (1965) imposes liability on one who "sells any product in a defective condition unreasonably dangerous." (emphasis added). It has been suggested that the terms "defective" and "unreasonably dangerous" are meant only to describe "defect." Keeton, Product Liability and the Meaning of Defect. 5 ST. MARY'S L.J. 30, 32 (1973). See also Mitchell v. Freuhauf Corp., 568 F.2d 1139, 1142 (5th Cir. 1978).
60. 2 L. FRUMER & M. FRIEDMAN, PRODUCTS LIABILITY § 16A(4)(f)(i) (1982).
61. Holford, The Limits of Strict Liability for Product Design and Manufacture, 52 TEX. L. REV. 81, 84 (1973).
62. L. FRUMER & M. FRIEDMAN, supra note 60.
63. Id.
64. Ross v. Up-Right, Inc., 402 F.2d 943 (5th Cir. 1968).
65. Epstein, Products Liability: The Search for the Middle Ground, 56 N.C. L. REV. 643 (1978); Henderson, Renewed Judicial Controversy over Defective Product Design: Toward the Preservation of any Emerging Consensus, 63 MINN. L. REv. 773 (1979); Keeton, Product Liability and the Meaning of Defect, 5 ST. MARY'S L. J. 30 (1973); Wade, On the Nature of Strict Liability for Products, 44 Miss. L. J. 825 (1973).
66. 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 (1978).
67. 20 Cal. 3d at 430, 143 Cal. Rptr. at 236, 573 P.2d at 454.
68. Cepeda v. Cumberland Engineering Co. Inc., 386 A.2d 816 (1978).
69. Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979).
70. Rucker v. Norfolk & W. Ry. Co., 77 Ill.2d 434, 396 N.E.2d 534 (1979).
71. Aller v. Rodgers Mach. Mfg. Co., Inc., 268 N.W.2d 830 (Iowa 1978).
72. Back v. Wickes Corp., 378 N.E.2d 964 (Mass. 1978).
73. Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978).
74. Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979).
75. Henderson v. Ford Motor Co., 519 S.W.2d 87, 92 (Tex. 1974).
76. See, e.g., Brady v. Melody Homes Mfg., 121 Ariz. 253, 589 P.2d 896 (1979) (the court held that the "reasonable expectation" test should be followed, but went on to compare strict liability with negligence, pointing out that a "risk/benefit analysis" is utilized under both theories); accord Fowler v. General Electric Co., 40 N.C. App. 301, 252 S.E.2d 862 (1979).
77. 18 U.S.C. § 922 (1976), known as the Gun Control Act of 1968.
78. See, e.g., CONN. GEN. STAT. ANN. §§ 29-27 through 29-38a (West Supp. 1981); D.C CODE ANN. § 6-1812 (1981); N.J. STAT. ANN. §§ 2C: 58-1 through 58-4 (West 1982); N.Y PENAL LAW § 400.00 (McKinney 1980).
79. See Stoelting v. Hauck, 32 N.J. 87, _, 159 A.2d 385, 389 (1960) (firearms are so inherently dangerous that a person of ordinary prudence will take cautious preventive measures commensurate with the great harm that may ensue from the use of the gun by someone unfit to be entrusted with it); Mazilli v. Selger, 13 N.J. 296, 300, 99 A.2d 417, 419 (1953) (legislative control of firearms indicates a recognition of the extreme potential for harm which may ensue from use of such dangerous instruments, especially in incompetent or unqualified hands); Speiser, Disarming the Handguns Problem by Directly Suing Arms Makers, NAT. L. J., June 8, 1981, at 29 (it would be difficult to imagine a more dangerous activity, or an activity of less value to the community than the sale of handguns to those who merely present a driver's license as proof of their trustworthiness); Fisher, Are Handgun Manufacturers Strictly Liable in Tort?, CAL. S. B. J. 16, 17 (Jan. 1981) (taken together, the extreme danger inherent in handgun design, the tremendous risk of harm, and the indiscriminate marketing of handguns to the public, may constitute a defect sufficient to make the manufacturer and distributor strictly liable in tort to the injured plaintiff).
80. W. Turley, Strict Product Liability: Warnings and Instruction in Texas, presented to the University of Texas School of Law Symposium on Products Liability, November, 1977, at 18.
81. 584 S.W.2d 844 (Tex. 1979).
82. Id. at 849; See also Barker, 20 Cal. 3d at 431, 143 Cal. Rptr. at 237, 573 P.2d at 456.
83. 584 S.W.2d at 846, 849.
84. RESTATEMENT (SECOND) OF TORTS, § 402A, Comment (k) (1965). See also Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1978), which provides an excellent discussion of Comment (k) and the general principles pertaining to unavoidably unsafe products.
85. Id.
86. See, e.g., Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076 (5th Cir. 1973) (a manufacturer of asbestos insulation was hold liable for unintended but forseeable cancer resulting from product); Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981) (manufacturer of birth control pills, which performed as intended, held liable for foreseeable consequence of stroke by user); d'Hedouville v. Pioneer Hotel Co., 552 F.2d 886 (9th Cir. 1977) (manufacturer of acrylic fiber carpet held liable for resulting foreseeable fire although carpet, as such, performed as intended); Moning v. Alfonso, 400 Mich. 425, 254 N.W. 2d 759 (1977) (plaintiff injured by projectile fired by slingshot manufactured by defendant held entitled to jury determination of "unreasonable risk of harm" although product performed as intended); LaGorga v. Kroger Co., 275 F. Supp. 373 (W.D. Pa. 1967), aff'd, 407 F.2d 671 (1969) (manufacturer of jacket held liable for burns inflicted when jacket ignited, although jacket performed precisely as intended).
87. See, e.g., McLeod v. W.S. Merrell Co., 174 So.2d 736 (Fla. 1965); Cochran v. Brooke, 243 Or. 89, 409 P.2d 904 (1966); Helene Curtis Indus., Inc. v. Pruett, 385 F.2d 841 (5th Cir 1967).
88. See supra note 3.
89. See, e.g., Cook, The Effect of Gun Availability on Violent Crime, 455 ANNALS OF AMERICAN ACADEMY OF POLITICAL PATTERNS AND SOCIAL SCIENCE 63 (1981); Zimring, Is Gun Control Likely to Reduce Violent Killings? 35 U. CHI. L. REv. 721 (1968); Zimring, Street Crime and New Guns: Some Implications for Firearms Control, 4 JOUR. OF CRIMINAL JUSTICE 95,1976; Newton and Zimring, Firearm and Violence in American Life, Task Force Report to the National Commission on the Causes and Prevention of Violence, U.S. Government Printing Office (1969); Brill, Firearms Abuse: A Research and Policy Report, POLICE FOUNDATION (1977); but see Kaplan, The Wisdom of Gun Prohibition, 455 ANNALS OF AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 11 (1981). This is obviously only a partial list.
90. Vital Statistics of the U.S., supra note 1, at 30. (some published figures based in part OR unpublished data).
91. Id.
92. Newton and Zimring, supra note 89, at 33-38.
93. Mortality Statistics Branch, Div. of Vital Statistics, Nat'l Center for Health Statistics, Vital Statistics of the US., 1970-1977. (This information was extrapolated by the author from vol. 2, Mortality).
94. Baker and Dietz, Injury Prevention reprinted in HEALTHY PEOPLE, THE SURGEON GENERAL'S REPORT ON HEALTH PROMOTION AND DISEASE PREVENTION, Background Papers, 64 (1979).
95. Newton and Zimring, supra note 89, at 33-34.
96. Mortality Statistics Branch, Div. of Vital Statistics, Natl Center for Health Statistics, Vital Statistics of the US., 1971-1981. (This information extrapolated by the author from vol. 2, Mortality, § 4 Accident Mortality ¾ "Accident caused by firearm missile.")
97. U.S. Surgeon General, Report of the Select Panel for the Promotion of Child Health, January 1981, at 70. See also Browning, Handguns and Homicide, JOUR. of THE AM. MED. ASSOC. 2198 (Nov. 8, 1976).
98. See generally, Berkowitz, Reactions of Juvenile Delinquents to "Justified" and "Less Justified" Movie Violence, JOUR. OF RESEARCH IN CRIME AND DELINQUENCY 16 (January, 1974); KRETCH, ELEMENTS OF PSYCHOLOGY (2d Ed. 1969); Parke, Some Effects of Violent and Non-violent Movies on the Behavior of Juvenile Delinquents, 10 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY (1977); Newberger, Child Health in America: Toward a National Public Policy, M.M.F.Q. HEALTH AND SOCIETY, 249 (Summer, 1976).
99. Newberger, supra note 98, at 257.
100. See, e.g., FBI Uniform Crime Reports, supra note 111, at 10-12.
101. Id.
102. Zimring, Is Gun Control Likely to Reduce Violent Killings? 35 U. Cm. L. REv. 721, 723 (1968).
103. F.B.I. Uniform Crime Reports, supra note 1, at 13.
104. Berkowitz, Experimental Investigations of Hostility Catharsis, 35 JOUR. OF CowSUITING AND CLINICAL PSYCHOLOGY 1 (1970).
105. Berkowitz, How Guns Control Us, PSYCHOLOGY TODAY, at 11 (June, 1981).
106. Estimate based on 1980 Census figures showing 80 million residences in the United States. U.S. Census, 1980.
107. F.B.I. Uniform Crime Reports, supra note 1, at 13, lists knives as being used in 19% of all murders, as compared with handguns which are used in 60%.
108. See generally, G. NEWTON & F. ZIMRING, supra note 3.
109. Id.
110. Id. at 728.
111. F.B.I. Uniform Crime Reports, supra note 14.
112. F.B.I. Uniform Crime Reports, supra note 1 at 13.
113. Id. at 21.
114. Id. at 19.
115. Id. at 18-21.
116. Result of Survey Conducted by Cambridge Reports, Inc., April-May, 1978, submitted to the Center for the Study and Prevention of Handgun Violence. However, a poll conducted two years earlier showed that as many as 66% keep handguns for self-defense. See Yeager, How Well Does the Handgun Protect You and Your Family? Report to the United States Conference of Mayors (1976).
117. Hirsh, Accidental Firearm Fatalities in a Metropolitan County, 100 AMER. JOUR. OF EPIDEMIOLOGY 504 (1979).
118. Id.
119. T. REPETTO, RESIDENTIAL CRIME 5, 17 (1974).
120. Right and Rossi, Weapons, Crime, and Violence in America, National Institute of Justice, U.S. Dep't. of Justice (November 1981). reported in Federal Regulation of Firearms, Report to the Senate Judiciary Comm. by the Library of Congress, 137 (1982); see also Brill, Firearm Abuse: A Research and Policy Report, POLICE FOUNDATION, 105 (1977).
121. F.B.I. Uniform Crime Reports, supra note 11, at 5.
122. U.S. Census, 1980.
123. Yeager, supra note 116, at 18.
124. Id. at 12-16.
125. Id.
126. G. NEWTON & F. ZIMRING, supra note 3, at 63-68.
127. Id. at 68.
128. Yeager, supra note 116, at 18.
129. U.S. CONST. amend. II (relating to a militia and the collective right to bear arms).
130. Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 TENN. L. REV. 363, 368 (1965).
131. See supra note 78.