Gun Shy: Cities turn from regulation to litigation in their campaign against guns.

Mr. Lott, the John M. Olin Law and Economics fellow at the University of Chicago School of Law, is the author of More Guns, Less Crime: Understanding Crime and Gun Control Laws (University of Chicago Press).

THE state attorneys general and trial lawyers behind the recently finalized $206 billion tobacco settlement have opened up a Pandora's box of legal tricks. The agreement wasn't even completed when mayors started using similar legal maneuvers against gun makers and retailers. Only 16 per cent of Americans favor banning handguns, and only 5 per cent favor banning rifles. Yet, if the mayors have their way, the opinions of the vast majority will not matter. In the lawsuits now threatened against gun makers, the litigants are using the courts to make an end run around the legislative process to enact a de facto ban on guns. Their goal is not to win these weak cases in court, but simply to bankrupt legitimate companies through a coordinated effort to simultaneously bring dozens of lawsuits and to impose massive legal costs.

When governments perceive a problem with a product, they can either regulate it or tax it. For example, if "too many" guns are indeed being sold, as Chicago's Mayor Richard Daley claims, gun sales could be taxed even more heavily than they are now. But the state legislatures and the Federal Government decided against further expanding already extensive controls. Now the cities want the courts to punish law-abiding manufacturers for past sales that complied with existing gun laws.

While states led the charge on tobacco, it is cities that are spearheading the assault on gun makers. New Orleans and Chicago want gun makers and retailers to reimburse them for all of their health-care and police expenses arising from gun violence.

As in the tobacco cases, the anti-gun plaintiffs acknowledge only the costs and not the benefits of the product in question. But the case against gun manufacturers will be harder to make. The states' class-action suits against tobacco emphasized what the tobacco companies themselves knew about their product, not whether smokers knew the risks of smoking. The plaintiffs were essentially accusing the tobacco companies of fraud-of not fully revealing the deadliness of their product. This strategy won't work against the gun makers, as everyone knows what guns can do.

Tobacco companies had a ready answer to the states' claim that smoking costs taxpayers Medicaid money to pay for tobacco-related illnesses: when smokers get sick, they tend to die relatively quickly. While states must bear these health-care costs sooner (since smokers die younger than non-smokers), the expenses are offset by shorter illnesses-indeed, by smokers' shorter lives. And once the long-term savings to state pension programs are taken into account, smoking actually saves states money.

Tobacco companies were never comfortable with this morbid argument, and, in the couple of cases where it was raised, judges weren't sympathetic to it. This permitted the attorneys general to make fantastic accounting arguments in which they cited the costs, but not the benefits, of smoking to state coffers.

Simply claiming that murders are committed with guns will not be enough for the cities to win. Unlike the tobacco companies, gun makers have powerful evidence of the benefit of their product. Criminals tend to attack victims whom they perceive as weak-and guns serve as an important deterrent against crime.

THE BEST DEFENSE

Americans use guns defensively more than two million times a year, and 98 per cent of the time merely brandishing the weapon is sufficient to stop an attack. Resistance with a gun is also the safest course of action when a person is confronted by a criminal. The chances of serious injury from an attack are 2.5 times greater for women offering no resistance than for those resisting with a gun. And guns help bridge the strength differential between male criminals and their female victims.

In my own recent research on gun ownership across states and over time, I found that higher gun-ownership rates are associated with lower crime rates. Further, poor people in the highest-crime areas benefit the most from gun ownership. Lawsuits against gun makers will raise the price of firearms, which will reduce gun ownership most among the law-abiding poor. The cities' claims are also at odds with the wisdom of the very people whose job it is to keep the streets safe. The police cannot feasibly protect everybody all the time, and indeed, despite their importance in reducing crime, they almost always arrive on the scene after a crime has already been committed. Perhaps this is why police officers are sympathetic to private gun ownership. A 1996 survey of 15,000 police chiefs and sheriffs conducted by the National Association of Chiefs of Police found that 93 per cent of them thought law-abiding citizens should be able to purchase guns for self-defense.

Chicago's lawsuit accuses 22 gun makers of specifically designing guns to appeal to gang members. Similar suits funded by George Soros and the MacArthur Foundation have also been brought by private parties in New York and Chicago.

Among the offending characteristics cited are low price, easy concealability (small size and light weight), corrosion resistance, accurate firing, and high firepower. The fact that an industry is being sued for making high-quality, affordable products shows how far the liability-litigation madness has gone. Again, only the negative effects of a gun's design are mentioned.

Lightweight, concealable guns may help criminals, but they also help protect law-abiding citizens in the 43 states that allow such weapons. Women in particular find it easier to use smaller, lightweight guns. Criminals may value guns with greater accuracy and firepower, but so do their potential victims. Daley may argue that a gun salesman is pitching ammunition specifically to gang members when the salesman claims that a certain type of bullet won't "go through the target and hit a little girl"; but homeowners trying to protect their families from attackers have the same worry. According to the Chicago lawsuit, undercover police officers posing as inner-city gang members were able to purchase weapons illegally. Criminal penalties already exist for such sales. But that's not what this lawsuit is about. It's about making manufacturers pay large awards to a city for any harm produced by guns. It's also worth noting that gun dealers were frequently faced with a no-win situation in the undercover stings. Had they not sold firearms to undercover minority police posing as gang members, they could have faced racial-discrimination suits.

The New Orleans suit relies on gun makers' supposed duty to manufacture guns that cannot be fired by unauthorized users; the complaint prominently discusses three cases since 1992 in which children in New Orleans were accidentally killed with guns. Despite the obvious feel-good appeal of this requirement, it too is more likely to cost lives than to save them. Consider first how many accidental gun deaths occur in the United States: in 1996, there were 1,400 such deaths, and 200 of those involved children under 15. In comparison, 2,900 children died in motor-vehicle crashes, 950 children drowned, and more than 1,000 children died from residential fires. Hundreds more children die in bicycle accidents each year than die from all types of firearm accidents. For children under age five, cigarette lighters kill five times as many as die from all accidental gun shots (150 versus 30 per year). With around eighty million people owning a total of 200-to-240 million guns, the vast majority of gun owners must be very careful or such accidents would be much more frequent. It's not much consolation that accidents involving common home fixtures like swimming pools and space heaters are more lethal than guns. Yet people understand that there are trade-offs in life and that the very rules that seek to save lives can result in more deaths. Banning swimming pools would help prevent drowning, for example; but if fewer people exercised, life spans would be shortened. Heaters may start fires, but they also keep people from getting sick and from freezing to death. So whether we want to allow pools or space heaters depends not only on whether some people may be harmed by them, but also on whether more people are helped than hurt.

LOCK AND LOAD

Similar trade-offs exist for gun locks. Mechanical locks that fit either into a gun's barrel or over its trigger require the gun to be unloaded and may prevent a few children's deaths. But locked, unloaded guns offer far less protection from intruders, and so requiring locks will likely increase deaths resulting from crime. The futuristic guns advocated in the New Orleans suit, such as guns activated by a radio signal from a wristband, are far from reliable and will cost $900 when they are finally available. Under the proposed requirements, the costs of gun locks would fall far more heavily on law-abiding citizens than on criminals-decreasing the number of innocent people who could use guns to protect themselves. So the debate over gun locks should be: How many of the 200 accidental child deaths will be avoided? vs. How will such rules affect people's ability to defend themselves (and their children)? But this is a debate that the city with good reason deliberately ignores.

Mayor Daley contends that the Chicago suit is no different from holding bars liable for serving too many drinks to people who later get into automobile accidents. Yet these drunk-driving cases deal exclusively with retailers, not manufacturers. Anheuser Busch is not in the dock. Daley's lawsuit, if successful, would create vast new precedents. Perhaps the next prey for local governments and trial lawyers will be automobile companies. The current lawsuits seek reimbursement for accidental gun deaths, and the cities also bear some health-care costs from car accidents and have to pay police to deal with these crashes. Surely lawsuits against alcohol companies and possibly even beef producers will be next. After all, those products too have costs.