When it passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005, Congress viewed the prospect of at least some forms of civil liability as a threat to the rights secured by the Second Amendment. In treating the right to keep and bear arms as one enjoyed by individuals and that would operate as a constraint on the exercise of state authority, our national legislature jumped the gun on the Supreme Court by a few years. So far, however, courts have not suggested that the Second Amendment might limit the operation of state tort law. In fact, the issue has received no serious judicial attention to date and surprisingly little in the way of sustained scholarly analysis.
Even before the Court’s decisions in Heller and McDonald, Professor Jerry Phillips wondered whether the right to bear arms under some state constitutions might impact the availability of products liability claims against gun manufacturers. In an important article published six years ago that ranged across all sorts of arguably incidental burdens on firearm ownership and use, Professors Joseph Blocher and Darrell Miller surveyed the Second Amendment’s possible impact on the availability of civil liability claims against individual possessors. In the end, they viewed tort doctrines as “gun neutral” and therefore largely unobjectionable.
Then, in 2017, Professor Cody Jacobs concluded that the Second Amendment would limit the potential liability of possessors as well as sellers. His provocative article prompted me to explore how else the common law might have to get refashioned in order to better insulate manufacturers of other constitutionally protected items, particularly contraceptives. Although I found potential merit to such extensions, the absence of any such arguments by litigants or commentators gave me reason for pause. Now I turn my attention to firearms.
Preliminarily, when judges resolve private disputes and announce doctrinal choices, they engage in state action. The longstanding constitutionalization of the common law governing defamation and affiliated speech torts—inaugurated by New York Times v. Sullivan and most recently extended in Snyder v. Phelps—leaves little doubt on that score, to say nothing of the Court’s relatively more recent endorsement of federal preemption (operating under the Supremacy Clause) as a defense to tort claims in some settings and its use of the due process clause to limit punitive damage awards.
Efforts to single out for unfavorable treatment the owners or sellers of firearms—whether by statute or judicial decision—would make the constitutional analysis a good deal more straightforward. What exactly does it mean, however, to “single out” (at least in a constitutional sense) a person or activity for unfavorable treatment? Decisions under the First Amendment may offer some guidance, and scholars who specialize in the Second Amendment have looked there for other purposes, but normally they have the speech clause in mind. Instead, let me suggest that the free exercise clause offers a more useful parallel.
Indeed, in much the same way that conservative jurists have complained about “second class” status accorded to the right to bear arms, the free exercise of religion had until recently languished as a purportedly disfavored right. In 1990, the Court relinquished strict scrutiny of neutral and generally applicable laws, which meant that the First Amendment would not entitle persons to demand religious exemptions to the operation of broad edicts. Only those laws that blatantly discriminated against religious practitioners faced invalidation.
This constrained approach to the First Amendment’s free exercise clause has now changed, though so far it has gotten fleshed out primarily in the Court’s benighted “shadow docket” used to resolve applications for emergency stays. For example, pandemic-related business closures cannot exempt essential services without also freeing houses of worship, and now some members of the high court believe that any vaccination mandates allowing medical exemptions must also, for that reason, allow religious exemptions. It now seems that the moment a law frees anyone from an obligation to comply—no matter how narrow or easily justified—the failure to do likewise for any religious objectors implies that the authors of that law had failed to sufficiently value religion. In short, the Court appears to have redefined what it means for a law to have “general application,” with the slightest under-exclusivity offering an opening for the true believers to complain.
A comparable approach to the Second Amendment could imperil any number of established tort doctrines. Consider the three different ways in which the principles that govern civil liability might prompt constitutional objections: (1) rules that plainly single out firearms for relatively unfavorable treatment; (2) rules that do likewise in only a backhanded sense by failing to extend recognized exceptions to cases involving firearms, thereby depriving the latter of equally favorable treatment; and (3) rules that operate in an entirely evenhanded fashion but still apply what seems like too burdensome a standard of liability on constitutionally protected activities.
Obviously, these hardly represent distinct or uncontested lines, with such cases better viewed as lying along a continuum. If later this term the justices extend strict scrutiny to the Second Amendment, then even the least problematic (third) type of cases might raise concerns and prompt courts to rethink all manner of generally applicable tort doctrines when applied to firearms, including the self-defense privilege, simple negligence claims against owners and users, strict liability claims against sellers of defective products, and the availability of punitive damages in any of these contexts.
Firearms rarely get singled out for distinctly unfavorable treatment under tort law, so little ground exists for complaints about blatant discrimination against possessors or sellers of guns and ammunition. Indeed, these potential civil defendants enjoy rather more favorable treatment than many others have received. Commentators have endorsed greater use of private litigation in order to accomplish a modicum of gun control in the absence of serious legislative and regulatory oversight, but, on those rare occasions when a court adopted a novel theory of expansive liability for gun sellers, the state’s legislature acted quickly to shoot down the idea.
Occasionally, legislatures have modified the common law in ways that plainly target firearms, as the District of Columbia did when it imposed strict liability against sellers of assault weapons even in the absence of any defect, which effectively imposed a form of absolute liability, but the courts decided that the PLCAA preempted this ordinance. More recently, New York crafted a private right of action against sellers in limited circumstances involving the criminal misuse of firearms, which attempted to fit within the “predicate” exception left by Congress, and perhaps this statute’s fairly demanding standard of culpability (recklessness) would avoid raising constitutional hackles given its resemblance to the actual malice standard now required for defamation claims brought by public figures. Nonetheless, if irresponsible distribution into criminal channels merits legislative attention and the prospect of sizeable damage awards, why did New York only do so for firearms (and not also for comparable problems with, for example, prescription opioids)?
The much trickier question relates to the application of more general tort doctrines in the firearms context and whether defendants can shield themselves by invoking the Second Amendment. For instance, when negligence claims relate to the usage, storage, or entrustment of an “inherently dangerous instrumentality,” firearms regularly appear among a relatively small class of items (primarily cars). What, however, happens if other items thought to pose equal or greater hazards do not get included in this subset—does that mean courts have discriminated against gun owners? The death toll from tobacco products remains almost an order of magnitude larger than the carnage produced by firearms, yet courts have not characterized cigarettes as dangerous instrumentalities, perhaps because—aside from causing occasional fires—these products pose risks of chronic illness (and primarily to users) rather than acute injuries (and primarily to third parties). In that case, how about the failure to include as dangerous instrumentalities alcoholic beverages, which cause twice as many deaths as firearms and a fair number of those involve bystanders rather than users?
For the most part, the doctrine of products liability has avoided subjecting sellers of firearms to distinctive treatment. Notwithstanding the entreaties of various scholars, courts have declined to visit particularly draconian standards on this industry. Nonetheless, a few other industries have gotten something of a free pass, which means that the failure to treat sellers of guns and ammunition equally well might come across as discriminatory. In particular, sellers of certain “unavoidably unsafe” products have escaped the full brunt of strict liability. Although the precise contours of this exception have attracted much debate, at a minimum it has removed the threat of strict liability for design defects from makers of implanted devices, vaccines and prescription pharmaceuticals (even opioid analgesics!).
Much as defenders of the faith have felt slighted during the pandemic when state officials denominated secular businesses as “essential” while leaving out houses of worship, some will argue that firearms also qualify as socially valuable products that deserve comparable insulation from the full brunt of strict products liability. Alas, far too many people regard firearms as a form of personal protective equipment (PPE), which is to say that they think packing heat offers an effective means for repelling threats (or at least promoting social distancing!); never mind that ubiquitous masking during the pandemic has offered far more in the way of demonstrable benefits coupled with rather modest downsides (primarily related to learning and litter) compared with the unmistakable and grave public health threats posed by the widespread availability of guns and ammunition.
Even the Connecticut Unfair Trade Practices Act, which the plaintiffs in the Sandy Hook litigation successfully used to get around the PLCAA’s tort immunity, includes limited exceptions. Although the state legislature plainly did not single out gun manufacturers with this law, it failed to grant equally favorable treatment as enjoyed, for example, by doctors and lawyers accused of professional negligence. A Second Amendment test that turned in part on asking whether a law discriminated against possessors or sellers of firearms—and borrowed from the emerging approach used in the free exercise cases—could imperil the application of various statutes and common law doctrines defining the scope of civil liability in this setting.
Just to be clear, I favor none of this, except to the extent that it might prompt similar developments in the context of therapeutic products. Instead, consider it a warning of where we might soon be headed, which is to say far beyond where Congress took us with the PLCAA. Perhaps any judges inclined to buy these sorts of arguments will pause for fear of starting down a slippery slope encompassing contraceptives, abortifacients, and other currently constitutionally protected consumer goods that mortify many of those on the right. Otherwise, the all-too limited measure of accountability effectuated through the threat of civil liability against possessors and sellers of firearms will become even more muted in the future.
[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]