Ever since the gun business started feeling some heat from the government over how many people are killed and injured every year with guns, which first occurred in 1968 and again in 1994 with the passage of two gun-control laws, the industry’s response always begins with a reminder that the 2nd Amendment ‘protects’ the legal ‘rights’ of people who want to be armed.

That’s all fine and well except for the fact that the 2nd Amendment doesn’t give any Constitutional protection for the manufacture of guns, only for keeping a handgun in the home. And what last week’s settlement of the lawsuit against Remington represents is a first-time, successful attempt, to shift the issue of regulation and gun control to where it really belongs, which is by placing the focus directly on the people who make the guns. 

Actually, it’s a little more nuanced than that because you can make all the guns you want to make in the privacy of your own home. The problem is if you take one of your home-made guns and try to sell it to someone else. Then you’re no longer just a gun owner, you’re also a gun maker, and that’s a different story entirely when it comes to all those so-called 2nd-Amendment ‘rights.’

In my state – Massachusetts – I can only sell one of my guns that I bought in a gun shop to someone else if I make the purchaser of my gun go through a state background check online. But if I want to sell more than 4 of my personally-owned guns in a year, I first must become a state (and federal)-licensed gun dealer because the law says that I am now engaged in the ‘business’ of selling guns.

And there has never been one, single challenge to my state’s ability to set an arbitrary number of guns whose sale makes me not just a gun owner but a gun dealer. Nor has such a law been challenged in any other state where this type of law exists.

For that matter, at the federal level the ATF has never actually defined what the term ‘engaged in the business’ means when it comes to making or selling guns. And if I happen to live in a state which does not require a background check when I sell one of my guns to someone else, then all I need to do is get a manufacturer’s license from the feds, a process which only requires that I pass a NICS-FBI background check, and I’m good to go.

So, here we have an industry which is in the process of making and selling a consumer product that can be used to kill 26 human beings in less than 3 minutes (which is what happened at Sandy Hook) and the industry, as opposed to the owners of their products, has basically escaped government regulation – until now.

Actually, what I just said is not entirely true.  In 1994 the Clinton Administration passed a law which set design standards for the manufacture of assault rifles, but the law expired after 10 years and now only exists in a handful of states. Then in 1999 the Clinton Administration attempted again to regulate how manufacturers sell their guns by making a deal with Smith & Wesson which they hoped would then become an industry-wide standard except that Bush beat Gore in the 2000 Presidential election, and that was the end of that.

The gun industry has dealt with the dangerousness of their products by turning the entire argument on its rhetorical head and claiming that using a lethal product to defend yourself is a good reason for owning a gun. But don’t make the mistake of thinking that the argument going forward should just be confined to regulating the AR-15. The kid who killed and injured 49 at Virginia Tech in 2007 used a Glock 19.

This morning I looked at the websites for the NRA, the NSSF and the NASGW, the three organizations that speak for the gun industry and promote the idea that using a gun for personal protection is a good thing. Regarding the Remington settlement, as my friend Ramon Carande used to say, ni palabra ni pío (read: not a peep.)

If the gun business wants to stay in business, they better start figuring out how to market their products in a way that will let them avoid being held responsible for the kind of mass carnage which occurred at Sandy Hook.

But if gun makers came up with a non-lethal product, would they still be making a gun?