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Protecting gun makers from lawsuits: although the new legislation signed by President Bush to protect gun makers from frivolous lawsuits was well-intended, it was poorly implemented.

Last month, President Bush signed into law legislation that protects gun manufacturers from frivolous product liability lawsuits, usually filed by victims of crime or by their families.

The law is designed to circumvent suits that are filed against the gun companies because of how the product is used or misused--not those filed against faulty products. The targeted suits are those that are intended to put gun makers out of business. Successful product liability suits could put gun makers out of business by draining their financial resources through constantly defending themselves in court.

Until the present time, the suits have largely not had the desired effect, and the costs of these suits have been getting passed on to law-abiding citizens who purchase guns. According to the May 2005 issue of American Hunter magazine, the suits have already "cost consumers well over $200 million." The suits could also cause the closure of gun makers by forcing them to meet unrealistic design criteria--such as "smart chips" that allow only one specific person to fire a particular gun. The anti-gun crowd is able to afford these attacks on legal businesses because they are being backed by anti-gun billionaire George Soros and other anti-gun zealots.

The anti-gun crowd has been using frivolous suits to try to end legal gun ownership because they have failed to end gun ownership through legislative means.

So this legislation is a great victory, right? Well, not exactly.

The legislation is based on a correct premise: product liability suits that are filed against companies that produce properly functioning products should be dismissed before the companies incur significant costs. And it is proper that the people who misuse guns should be held responsible for injuries committed with firearms, not the makers of the guns. If the anti-gun crowd's litigation standard of liability were applied to makers of other products, they could be sued indiscriminately and put out of business. Rope makers could be sued because their ropes were used in kidnappings or strangling cases; car manufacturers could be held liable for hit and run accidents; and hockey puck makers could be held liable for broken teeth and concussions.

The law's premise is good. It's the law's implementation that is bad.

Though the law is well-meaning in intent, it has flaws. First, it is likely a short-term fix. When liberal Democrats come back into power, as they most assuredly will eventually, they can and likely will overturn this legislation. Second, it advocates subverting the Constitution in much the same manner that anti-gun people subvert it--through interpreting it however they feel they must in order to meet their present goals. Questions on constitutionality must be considered in two veins: current skewed constitutional thinking and the Founders' constitutional thinking. The former view would assuredly find this legislation to be constitutional as an exercise of power to regulate interstate commerce. Remember that this modern viewpoint, which says that the Constitution is a "living" document open to constant reinterpreting, holds that nearly everything is in interstate commerce.

The Founders' viewpoint limits congressional power to regulate interstate commerce to the transactional details of the commercial exchange. Manufacturers/ sellers' liability for the third party misuse of a firearm is a post transactional event, which would fall outside the commerce clause of the Constitution.

In other words, a product liability suit, which would happen after the sale of a product, is not open to regulation by the commerce clause or Congress. The real legal issue is the law of product liability, which is exclusively a matter of state law.

Frivolous suits could have and should have been dealt with through changes in state laws. In fact, many states have already passed legislation that would protect gun companies from frivolous suits. To bring the rest of the states into the fold against frivolous suits, pro-gun advocates need to generate an unassailable, widespread base of support. This support should be or could be rallied through making a change to the Uniform Commercial Code.

In the decade of the '60s, a Uniform Commercial Code (UCC) was implemented on the state level. The UCC was based on existing commercial practices, as well as prevailing state commercial law, and it attempts to unify commercial law relating to interstate transactions. It was developed by the National Conference of Commissioners on Uniform State Laws and the American Law Institute. It was intended to be adopted by all states. States are not required to enact provisions of the code, but they usually do. Even Louisiana, the only state without official sanction of the UCC, has enacted most of its provisions.

The UCC is based on business necessity and is an effective alternative to complete federalization to the law merchant. The best way to limit gun makers'/sellers' vicarious liability is to amend the pertinent sections of the UCC. The pro-gun people could get the broad support they need to pass a code change in the states by making the language used to amend the UCC broad enough to protect many other industries from frivolous lawsuits as well as the gun makers--such as rope makers, hockey puck makers, and car manufacturers.

This approach has merit: it is low key so as not to alarm the anti-gun elements of society to oppose the bills; it would be more permanent than a change in federal law; it would generate the support needed to stop the liberals from passing a federal law in the future that would supersede this law and revive frivolous suits against gun makers; it is constitutionally correct.

George Detweiler, a constitutional lawyer and former assistant attorney general for the state of Idaho, recommends that the UCC be amended to read as follows:

Limits of liability for manufacturers and sellers of goods for damages caused by other persons.--(1) Any other provision of the laws of this state to the contrary notwithstanding, a manufacturer or seller of goods, other than toxic substances, shall not be liable under any theory of recovery whatsoever for damages sustained by any person proximately caused by any person other than the manufacturer or seller of such goods. A manufacturer or seller of goods, other than toxic substances, shall not be liable for such damages which are proximately caused by an act of another person which is tortious or in violation of criminal laws. Such acts are deemed to be intervening and superseding causes of such damages.

(2) A manufacturer or seller of goods, other than toxic substances, shall not be liable for damages sustained by another person unless the goods were negligently manufactured, or defective or unless there is a breach of warranty. Goods, other than toxic substances, which perform the work for which they are intended are not defective nor is there a design defect therein merely because they may produce great bodily harm or cause other damages.
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Title Annotation:SECOND AMENDMENT
Author:Williamsen, Kurt
Publication:The New American
Geographic Code:1USA
Date:Nov 28, 2005
Words:1135
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