After Columbine, Aurora, Newtown, Las Vegas, Orlando, and nearly 40,000 gun deaths annually—with no meaningful legislative reform in sight—it has become abundantly clear that a new approach to gun violence is needed. Combating gun violence has become politically polarized, constitutionalized, and an object of pessimism and despair. The answer, we believe, is changing political incentives to draw on the expertise of those who know guns best, not imposing quick-fix bans. Accordingly, we have developed a two-part proposal which does just that.
First, our proposal includes a novel regulatory solution that alters the current political economy—turning the staunchest gun-control opponents into its most adamant supporters. It sets forth a system of strict liability to a “Gun Safety Fund,” administered by the Centers for Disease Control (“CDC”), spreading the social cost of gun violence to gun manufacturers. Specifically, gun manufacturers will be required to make an automatic payment of $6 million for deaths causes by firearms they produce with exceptions for: (1) legitimate use of force by law enforcement, (2) justifiable self-defense, and (3) discounted liability for suicides. Eschewing the costs, misaligned incentives, and uncertainty of private lawsuits, we aim to capture the usual benefits of strict tort liability—incentivizing manufacturers to produce and distribute guns in ways that reduce social cost.
And while strict liability of this kind can indeed serve its traditional purposes of spreading costs and incentivizing better designs and processes, our primary goal is to alter the political economy around the issue of gun violence more generally. If manufacturers bear an increasing share of the costs created by their products, they will endeavor not only to produce products and advertise them in ways likely to reduce those costs but also to advocate for regulations that may do the same. To be sure, our proposal may not depolarize the issue entirely, but it at least attempts to focus the minds and experience of those who know guns best on effective means of reducing guns’ social costs.
Second, our proposal includes a subsidy necessary to permit commerce in guns sufficient for the exercise of rights the Supreme Court has identified in the Second Amendment. This “Gun Subsidy” will put a number to the subsidy that is already being paid by victims of gun violence. The aim would be a reduction in the subsidy amount every two years unless the CDC determines that there would be a reasonable likelihood that production would fall below the Heller baseline. In short, if gun rights are a common good, we propose making their cost more conspicuous.
Our forthcoming article in the Buffalo Law Review further explores the intricacies of this idea. In it, we detail the implementation of the proposal by exploring the efficacy of utilizing current gunmaker identification techniques and possible incentives to manufacturers who comport with the production of safer and more easily identifiable firearms. To quell constitutional concerns, the article examines how state officials will be incentivized to aid in the reporting of data to the CDC and other federal agencies. From a tort law perspective, we defend why we prefer the use of administrative apportionment of liability, drawing from proven models such as the National Vaccine Act and the EPA Superfund. Through the lens of administrative law, we discuss particulars surrounding issues such as rate setting (for both liability and the subsidy), hearings, challenges, and possible uses of the Gun Safety Fund collected from manufacturers.
A draft of the article is currently available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3537278. And for an in-depth discussion of the article listen to our thoughts on episode 209 of Oral Argument, available here: https://oralargument.org/209.