Despite seminal Supreme Court decisions such as Heller in 2008 and McDonald in 2010, gun banners never cease in their efforts to limit liberty. State law, federal law, nothing stops them. No matter how old, unlawful, illogical, or discredited the argument, they revive it, time and again. A recent article in The New Yorker titled “The Newtown Lawsuit And The Moral Work Of Gun Control” speaks of a lawsuit filed on the behalf of survivors of the Sandy Hook Elementary School attack against Bushmaster, the manufacturer of the AR-15 pattern rifle used in the killings. Their claims are as unlawful as they are based in emotion . . .
“4. The AR-15 was designed as a military weapon, and it has always excelled on the battlefield. Born out of the exigencies of modern combat, the AR-15 was engineered to deliver maximum carnage with extreme efficiency.
5. The AR-15 proved to be very good at its job. It has endured as the Unites States Army’s standard-issue rifle and has more recently become a valuable law enforcement weapon. In both contexts, the AR-15 is subject to strict safety measures, including advanced training and regimented storage.
6. The AR-15, however, has little utility for legitimate civilian purposes. The rifle’s size and overwhelming firepower, so well adapted to the battlefield, are in fact liabilities in home defense.
7. But there is one tragically predictable civilian activity in which the AR-15 reigns supreme: mass shootings. Time and again, mentally unstable individuals and criminals have acquired an AR-15 with ease, and they have unleashed the rifle’s lethal power into our streets, our malls, our places of worship, and our schools.”
The remainder of the suit’s points argue that Bushmaster knows the AR-15 is good only for murdering large numbers of innocents yet they continue to sell it, posing “unreasonable risks.” To those what have followed the gun debate for decades as I have, all of this is entirely familiar, and entirely false.
Briefly, the military versions of the AR-15 family are, with a handful of exceptions, actual assault rifles, fully automatic weapons of intermediate caliber. They have not always excelled, and in Vietnam, problems in design, manufacture and ammunition cost many soldiers’ lives. Over the years, various other issues have been identified, and the relative lack of stopping power of the 5.56mm round continues to be the source of argument.
Any projectile propelled with sufficient velocity has the ability to kill. The .223/5.56mm cartridge used by the AR-15 is of only moderate power. Most hunting cartridges are far more powerful, though AR-15s are well suited for hunting, and are commonly used for small game. One of the primary reasons police agencies use the rifle is because it’s useful in close quarter battle, and its ammunition does not tend to over penetrate in an urban setting.
Few rifles of any kind are used in crimes in America, the AR-15 included. The AR-15 used in the Sandy Hook attack was nothing more than a common, semiautomatic rifle. It wasn’t uniquely dangerous; millions just like it are in circulation. Its “firepower” is anything but overwhelming and in no way uniquely capable of producing“maximum carnage.” It is indeed well suited to home defense and is commonly so employed across the nation.
The suit also raises the fallacious “not suitable for sporting purposes” argument discarded by the Supreme Court in Heller. The New Yorker’s article was obviously written by a true believer:
“The filed complaint—the numbered paragraphs give it an oddly religious feeling, like theses nailed to a church door—is worth reading in full, however painful that might be, not only because of the unbelievable suffering and cruelty it details on that terrible morning but also because it offers, in neatly logical fashion, an indisputable argument: the gun manufacturer is guilty of having sold a weapon whose only purpose was killing a lot of people in a very short time. Despite the Bureau of Alcohol, Tobacco, Firearms and Explosives having previously declared that such weapons “serve a function in crime and combat, but serve no sporting purpose,” Bushmaster sold it anyway…[skip]
The lawsuit is discouraging because the death-by-gun lobby has successfully advocated for legislative prophylactics that prevent gunmakers, almost uniquely among American manufacturers, from ever being held responsible for the deaths that their products cause. If a carmaker made a car that was known to be wildly unsafe, and then advertised it as unsafe, liabilities would result. The gun lobby is, or believes itself to be, immune. Some experts have outlined legal principles that might let sanity triumph, but it is hard to think it will. (Right-wing judges tend, these days, to be more creative than liberal ones in creating legal precedents that no one ever before imagined possible.)”
Right wing judges do this? The word for that is “projection.” These arguments are particularly deceptive. Manufacturers that knowingly make a defective product are liable for damages caused by that product. No law has exempted gun makers from this basic legal principle.
But manufacturers that make a legal product that isn’t defective, those that function as designed in normal use — whether a firearm or a blender or a car — aren’t liable for the misuse of those products, particularly not their criminal misuse. Were this not so, what company could produce and sell any product? Virtually any product can and will be be misused and tragedy may eventually result.
This, of course, did not stop gun banners from trying to destroy the firearm industry by filing frivolous lawsuits with language virtually identical to that of the Newtown defendants. The result was 15 USC Chapter 105, the 2005 Protection of Lawful Commerce in Arms act, which lists as its purposes:
“(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products of ammunition products by other when the product functioned as designed and intended. [skip]
(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.”
Even for federal legislation, the language is remarkably concise and clear. This section is even more clear:
“(a) In general
A qualified civil liability action may not be brought in any Federal or State court.”
The New Yorker continues:
“Indeed, one of the ironies of the whole story is that there already is a long-standing ban on truly automatic weapons—machine guns—whose legality not even the N.R.A. or their allies dispute. If anything, they tend to make a sniffy point of discriminating actual machine guns from mere semi-automatic ones, among them the Bushmaster…But all of the talk about legal and illegal weapons, automatic and semi-automatic—as about the treatment of the psychologically troubled—evades the simple, central point: it ought to be very, very difficult, as it is in every other civilized country, to get your hands on a weapon whose only purpose is to kill people quickly. The N.R.A. and their allies make it very, very easy.”
I’ll discuss how “civilized” the rest of the world is compared to gun-crazy American shortly, and the difference between semiautomatic firearms and fully automatic firearms is substantially broader than “sniffy” would suggest. As to how fully automatic weapons apply to this case, or constitute irony, I leave it to readers to determine.
The New Yorker asserts that the majority of Americans agree with it, despite recent polls demonstrating just the opposite. But to its way of thinking, there is a more powerful argument:
“On some subjects on which we wish sanity and common sense could prevail over fanaticism and irrationality, it’s apparent that the mental work is not yet finished or even entirely begun. In public life, there are subjects about which the mental work is done, but the moral work still needs doing.”
And consider this recycled, completed discredited argument:
“But on the problem of gun control, no matter how far we may seem from a sane solution, the public deliberations are finished. Instead of bleeding natural allies, new ones join all the time, including the voters who rejected attempts to eliminate checks and delays on weapon sales in the last election. No honest or scrupulous person can any longer reject the evidence that gun control controls gun violence. It can be rejected only by rage and hysteria and denial and with the Second Amendment invoked, not as a document with a specific and surprising history, but as a semi-theological dogma.”
By examining only the Clinton gun ban, the rational non-fanatic must conclude that ten years of gun banner’s most desired laws accomplished nothing whatever for public safety, nor has there been a single credible study that proves otherwise. It is, rather, those that would destroy the portions of the Constitution that stand in their way in establishing a utopia that must rely on “rage and hysteria and denial,” and on “semi-theological dogma.”
Behold the voice and reason and morality:
“The majority is there, and the mental work is accomplished. This means that though the moral work—of persuasion, conviction, and shaming—needs to go on, we can be confident that it will go on and win, too, in the long run. There is nothing so irresistible as an idea that happens to be true. Piece by piece, legislation by litigation, the curse will be lifted. Time and temperament and patience will win out. [skip]
Gun control stops gun violence. Gun possession does not deter crime; it merely makes it more lethal. Making these inarguable truths into necessary law takes the work of persuasion and legislation and litigation. The mental work finished, the moral work goes on, often in modest invisibility.”
These people don’t care about the Constitution. They don’t care about public opinion. Reason, Supreme Court decisions, the laws of the several states, all mean nothing to them. Such trivia are illegitimate barriers to worthy Progressive policies. They take the long view and expect to eventually win. Those that wish to live in a constitutional republic can never forget this progressive article of faith, so clearly expressed.
But is it possible they’re right, at least in some ways? Does gun control restrain gun violence? Does gun possession fail in deterring crime, instead making it more lethal?
The invaluable Bill Whittle recently issued a new edition of The Firewall, titled Number One With a Bullet.
In it, Whittle, citing Wikipedia, explains that America is number one (2012 figures) in the world in per capita ownership of firearms: 90 guns per 100 people. If The New Yorker is right, America must be a cesspool of violent crime. However, it is indisputable that as Americans have purchased firearms at incredible and accelerating rates over the last quarter century, violent crimes of all kinds have continually and substantially decreased. And where does America stand (again, 2012 figures) in the international murder per capita carnival? We don’t even make the top 100. Honduras is first with 90 per 100,000. America is number 111, with 4.7 per 100,000.
According to Whittle, analyzing the murder per 100,000 rates of major American cities controlled for decades by Democrats, cities with the kind of draconian anti-gun laws for which the New Yorker longs, those cities would be near the top of the nations of the world in the murder carnival, far above America as a whole. Those are cities with the kind of gun control that disarms the law abiding The New Yorker calls a moral imperative.
Such statistics, particularly where Wikipedia is concerned, may be a bit slippery, so I checked Wikipedia before writing this article and found that in 2012 America was actually 91st in the world, though still with a per capita murder rate of 4.7 per 100,000.
The nation with the highest level of private firearm ownership — according to some sources, enough firearms to provide one for every man, woman and child — is somehow around 100th in murders per capita. That translates into cognitive dissonance at The New Yorker’s editorial offices, but common sense in flyover country.
Sandy Hook was undeniably horrific, so horrific the school itself has been demolished. The home of the killer, where he killed his mother with a common, .22LR bolt-action rifle before attacking school, will also soon be torn down.
Perhaps the Newtown survivors aren’t done removing reminders of the attack. Perhaps all the ghosts have not yet been exorcised. Whether or not it’s logical, it’s eminently understandable. People of good will everywhere wish them peace and rest.
However, neither peace nor rest may be obtained by damaging the rule of law or the Constitution. The Newtown lawsuit is plainly unlawful and must be dismissed. I suspect any “right wing” judge would apply the law as it’s written, which would take no imagination, but at least some moral work.
Mike’s Home blog is Stately McDaniel Manor.