Sooner or later, someone would figure out a way to get around the tort immunity enjoyed by the gun industry since 2005 when Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA).  The law basically says that no point in the supply chain – manufacturer, wholesaler, retailer – can be held responsible for the 125,000 shooting deaths and injuries which occur every year because guns are legal products and, hence, the responsibility for how they are used can only be framed around the individual behavior of who actually used the gun to assault themselves or someone else.

              The PLCAA law does not protect gun makers from civil liability if their behavior runs counter to state laws that cover false advertising, such as the Connecticut law known as ‘negligent entrustment’ which is being used to sue the gun maker – Remington – whose gun was the instrument that killed 26 adults and children at Sandy Hook.

       The New York law goes after the gun industry for creating a public nuisance in the way it markets and sells guns, and opens the industry to civil liability if it doesn’t “establish and utilize reasonable controls and procedures to prevent its qualified products from being possessed, used, marketed or sold unlawfully in New York State.”

       In other words, if Smith & Wesson ships a gun to a licensed wholesaler in Massachusetts, who then ships it to a licensed retailer in Virginia, who then sells the gun to a licensed gun owner, who then has the gun stolen by someone who takes the gun to New York, sells it on a street corner to some dope who then pops off a round which hits some kid in the head, Smith & Wesson can be sued because the company didn’t establish ‘reasonable controls’ to prevent that entire scenario from taking place.

        What are the ‘reasonable controls’ that S&W has to put in place?  The legislation doesn’t define those controls. How do we know if S&W has created such controls? Because guns from other states will stop being picked up at crime scenes in New York. 

        Between 2010 and 2015, more than three-quarters of all the crime guns picked up in New York State were originally sold to residents of some other state. Despite the so-called ‘iron pipeline’ which brings guns up I-95 from more gun-permissive Southern states, most of the New York crime guns that came into the state were initially sold in the surrounding and adjacent states. 

        If you are Smith & Wesson, how do you prevent your products from being legally sold in Pennsylvania or New Jersey, then being stolen, or lost and somehow winding up across the Hudson River and used to commit a crime in New York? You don’t and you can’t. To protect itself from the civil liability which this law could potentially impose on S&W, the company would have to cease shipping its guns to any state which might be a source for those guns being used in a criminal event. 

        Maybe S&W could stop making guns and start making handheld power tools. Better yet, what the gun company should really do to keep itself afloat is to stop manufacturing products whose design and engineering hasn’t changed in more than one hundred years, and start looking at electronic, self-defense products like the Vipertek taser pictured above, which provides all the personal security anyone could ever need without creating any kind of liability issue at all.

       Last week I drove past an Apple store and there was a line around the block. For all the talk about surging gun sales, the gun shop nearest me never has more than a couple of folks waiting around to buy a gun. 

      If the New York law that gets around PLCAA begins to spread to other states, it might be the best thing that could happen to the gun industry since smokeless powder was invented in 1884. 

     And don’t worry, all the noisemakers who argue back and forth about 2nd-Amendment ‘rights will find something else to argue about, that’s for sure.

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