(This article originally appeared at libertylawsite.org and is reprinted here with permission.)
By Nicholas J. Johnson
Some of the families who survived the horror of the Newtown shooting are suing Bushmaster, the manufacturer of the AR-15 rifle that was used by the deranged gunman who murdered 20 children and six adults at Sandy Hook Elementary School. The complaint actually reads more like an attempt at healing than a serious legal claim. To that extent, I am sympathetic. But the strictly legal issues and theory of recovery to be gleaned from it deserve comment . . .
This is in the class of claims that are barred by a 2005 law, the Protection of Lawful Commerce in Arms Act (PLCAA). Congress passed the PLCAA in response to several years’ worth of creative municipal lawsuits against the gun industry. Former Pennsylvania Governor Ed Rendell explained in a speech to the American Bar Association that the litigation was designed to avoid consolidation and stretch the ability of gun makers to pay for legal defense in dozens of jurisdictions at once.
Many of those claims dripped with irony. One popular legal theory was that gun manufacturers—defying the profit motive—were negligently oversupplying firearms to distressed communities. The irony was that the only real evidence of product-dumping was that some of the plaintiffs had upgraded the police arsenals of their cities by selling large lots of used police guns at below-market prices. (See the Wall Street Journal report on this by Vanessa O’Connell and Paul Barrett, November 10, 1999.)
The PLCCA allows manufacturers to be sued for selling defective firearms and for violating laws directly regulating firearms. But sellers of properly functioning firearms who comply with the National Firearms Act, the Gun Control Act of 1968 (with its many amendments) and myriad other federal and state laws governing the manufacture and sale of firearms, cannot be sued for criminal use of their products.
This reflects the fact that firearms like many other products (cars, alcohol, knives, hammers, matches, fuel oil, and fertilizer) have positive, legitimate uses but also can be criminally abused.
The complaint against Bushmaster seems to be an attempt to circumvent the PLCCA with the claim that the AR-15 is exceptional; that it is a military arm with no legitimate self-defense utility. There is no such exception in the PLCCA. So the suit attempts to establish an implied, overriding qualification: that the sales of the AR-15 are in such a different, extraordinary category that an exception to the PLCCA is implicit.
The answer to this argument is evident in the national norms that are demonstrated in the basics of U.S. firearms regulation, our constitutional right to arms, and the dynamics of our uniquely armed society. Start with the obvious thing. Guns are deadly—all of them. The gruesome work of madmen who assault unarmed people is not significantly impaired by the technological differences between common firearms.
Still, the complaint suggests that the AR-15 is an exceptional military gun; that government and military have taken special efforts to keep such guns exclusively in government and military hands; and that manufacturers like Bushmaster, defying these efforts, (have) negligently entrusted the AR-15 to civilians.
Putting aside its novelty, this negligent-entrustment theory fails because its core assertions are are demonstrably false.
It is quite plain that Congress has explicitly entrusted semiautomatic firearms like the AR-15 to civilians through a variety of affirmative legislative choices. The National Firearms Act of 1934 (NFA) and the Civilian Marksmanship Program (CMP), are two of the most pertinent. (One might also make this point by showing that the AR-15 is squarely within the category of constitutionally protected common firearms; but that path is well worn. I want to focus here on the less familiar, and more pointed, legislative judgments.)
The NFA places heightened restrictions on, and dramatically increases the costs of, owning fully automatic firearms and destructive devices that Congress deemed exceptional and that are technologically distinct from the broader pool of common firearms. Common long guns and handguns, including repeating technologies like lever actions, revolvers, and semiautomatics with detachable box magazines, were placed outside the strict regulations of the NFA.
More than 30 years later, those common firearms, were are subjected to the provisions of the Gun Control Act of 1968. The 1968 law and its multiple amendments restricted who could possess firearms, but continued to entrust the spectrum of common firearms to citizens of the republic.
In 1994, Congress nominally banned guns deemed “assault weapons.” The ban was pure security theater. It prohibited further manufacture of guns based on appearance and left functionally identical guns in slightly different configurations freely available. The ban’s main effect was to spur demand for the prohibited configurations. When, a decade later, the ban expired with a whimper, even a prominent original supporter said it would not make “one whit of difference.” (See Tom Diaz, NPR radio broadcast of March 11, 2004.)
I suppose the Connecticut lawyers would say that the congressional entrustment evident here is only implicit; that allowing trade in semiautomatics under the Gun Control Act, and the failure to reenact the 1994 assault weapon ban are different from explicit entrustment. Indeed, their suit seems to suggest that in initiatives like the PLCAA, lawmakers were not really paying attention to how firearms technology was developing and that manufactures of the AR-15 exploited that inattention.
The pointed answer to that argument is the Civilian Marksmanship Program I mentioned. Under the CMP, which has existed since 1903, the U.S. government has long directly entrusted—meaning given and sold—actual military firearms, including semiautomatic rifles with detachable box magazines, to individuals and shooting clubs.
The program was created to encourage civilian training and practice with military arms. It reflected the broad judgment that Americans were and should continue to be a nation of riflemen. Through a cooperative arrangement between the CMP and (for over 50 years) the National Rifle Association, citizens could purchase government-surplus rifles and handguns.
In 1994, the CMP was removed from the federal budget and required to sustain itself financially. Pursuant to 36 USC 40729, it still promotes marksmanship training and national shooting competitions, and it sells semiautomatic military battle rifles to individual citizens and clubs. The AR-15 is one of the most popular rifles in CMP competitions. Over the decades, the federal government has in this way directly entrusted to civilians semiautomatic battle rifles and carbines that duplicate or exceed the capabilities of the AR-15.
The stalwart of the CMP program is the semiautomatic M-1 Garand in .30-06. General George Patton called the Garand the “greatest battle implement ever devised”. Ballistically, the .223 cartridge of AR-15 pales in comparison to the Garand’s .30-06. Unlike the AR-15, the Garand is not a civilian likeness of a military arm. The Garand is the actual World War II battle rifle.
The CMP legislation also entrusted to American citizens the M-14 battle rifle (rendered semiautomatic only). The M-14 is the direct successor to the Garand. It fires the slightly less powerful but more compact .308 cartridge from a detachable box magazine. Although the .308 cartridge is slightly less powerful than the Garand’s 30.06, it is still far more powerful than the .223 cartridge used in the AR-15. The M-14 was used in the Vietnam War until it was replaced by the M-16. It remains in limited service across the branches.
Also on the CMP list of federally entrusted firearms is the M-1 carbine. The M-1 carbine shares many of the characteristics of the AR-15. It is more compact than the Garand or the M-14. It fires a lower powered cartridge than the Garand or the M-14. The M1 Carbine’s 110 grain, .30 caliber cartridge is in the same intermediate ballistics category as the AR-15’s 55 grain, .223 cartridge. Like the AR-15 and the M-14, the M1 Carbine feeds ammunition through a detachable box magazine.
This is just a sketch of the public decision-making that refutes the Connecticut suit’s negligent-entrustment theory. Even if the AR-15 were deemed technologically exceptional, it isn’t plausible to argue that its manufacturers and sellers have violated some implicit national norm and negligently entrusted it to American citizens. Still, it is worth the effort to reinforce precisely why the AR-15 is not technologically exceptional.
The Connecticut complaint attempts to establish that the AR-15 is exceptional by parroting what even a staunch gun control supporter writing in the New York Times recently called the “Assault Weapon Myth.” That myth grows out (of) an early calculation of the gun-control lobby that is illustrated in a now widely disseminated memorandum by Josh Sugarmann of the Violence Policy Center. Here is Sugarmann:
The issue of handgun restriction consistently remains a non-issue with the vast majority of legislators, the press, and the public. … until someone famous is shot, or something truly horrible happens, handgun restriction is simply not viewed as a priority. Assault weapons… are a new topic. The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons – anything that looks like a machine gun is assumed to be a machine gun – can only increase the chance of public support for restrictions on these weapons. 
Semiautomatic rifles like the AR-15 are, like all guns, deadly instruments. But they are not fundamentally different in function or effect from other guns. The Assault Weapons Myth says that the AR-15 with a 30 round magazine has exceptional multishot capability. This is false. Most ordinary repeating shotguns will exceed the AR-15 in multishot capability as well as close to medium range lethality. Consider the standard repeating shotgun in 12 gauge configuration. All of these guns can be reloaded continuously, without disabling the firearm. With a three inch, 00 buckshot load, any of these guns will fire fifteen .33 caliber, 60 grain projectiles with one pull of the trigger.
A typical repeating shotgun holds six rounds of ammunition (and is easily configured to hold nine or more). So with six quick trigger pulls, the 12 gauge repeating shotgun will fire ninety, .33 caliber projectiles. There are a variety of other loadings that will push this rate upward. For example, the No. 4 buckshot load contains twenty-seven .24 caliber projectiles, yielding 144 projectiles with six trigger pulls.
When measured objectively, the specious claims about the AR-15 – e.g., fantastic spray fire capabilities – are actually closer descriptions of the ordinary repeating shotgun. Formal confirmation of this appears in the Armed Services Shotgun report which demonstrates that the AR-15, far from being exceptional, as is claimed by the Newtown Complaint, is in fact surpassed by the common shotgun. Here is the report in pertinent part
The shotgun … finds its class or analogy as to purpose and effect, in many modern weapons. The dispersion of the shotgun pellets is adapted to the necessary purpose of putting out of action more than one of the charging enemy with each shot of the gun; and in this respect it is exactly analogous to shrapnel shells discharging a multitude of fragments or a machine gun discharging a spray of bullets.
The diameter of the bullet is scarcely greater than that of a rifle or machine gun.
The only instances where a shotgun projectile causes more injury to any one enemy soldier than would a hit by a rifle bullet are instances where the enemy soldier has approached so close to the shooter that he is struck by more than one of the nine No. 00 buckshot projectiles contained in the cartridge. This… is permissible as an unavoidable incident of the use of small scattering projectiles for the necessary purpose of increasing the likelihood of killing a number of enemies.
To a range of thirty yards, the probability of hitting a man sized target with a shotgun was superior to that of all other weapons. The probability of hitting the intended target with an assault rifle was one in eleven” [Here assault rifle refers to the technically defined, fully automatic rifle, firing ammunition in the intermediate ballistic range]. It was one in eight with a submachine gun firing a five round burst. [Here submachine gun refers to a fully automatic carbine firing a pistol cartridge]. Shotguns had a hit probability ratio twice as good as rifles.
The Complaint’s claims about the AR-15 and similar guns ultimately dissolve under objective testing and measurement. Still the politically generated Assault Weapon Myth remains potent. It is rooted in cynical projections about the gullibility of the American public that remind one of recently revealed calculations surrounding passage of the Affordable Care Act. These sorts of contemptuous bets capitalize on the difficulty of getting even basic, verifiable truths through the din of popular culture.
I wager that the Connecticut judiciary will be harder to fool. Full copy on file with author. See also New York Times The Assault Weapon Myth at http://www.nytimes.com/2014/09/14/sunday-review/the-assault-weapon-myth.html?_r=0 ; Nicholas J. Johnson Stenberg Principles, Assault Weapons and the Attitudinalist Critique, 60 Hastings L. J. 1285 (2009).  Note here that buckshot is different from bird shot, which includes loads where individual pellets are as small as .09 hundredths of an inch. A typical one ounce load will contain approximately 400 of these small lead pellets. See, http://www.shootingillustrated.com/index.php/20447/buckshot-basics/
Nicholas J. Johnson is Professor of Law, Fordham University School of Law is the author of Negroes and the Gun: The Black Tradition of Arms. He is the lead editor of Firearms Law and the Second Amendment: Cases and Materials (Aspen Press, 2012).