Last month, the Branstetter Dispute and Litigation program hosted Jonathan Lowy, founder and president of Global Action on Gun Violence, for a discussion with Ingrid Brunk, program director and Helen Strong Curry Chair in International Law.
With the ever-changing nature of gun regulation, Brunk invited Lowy to touch upon both the history of gun control and developing cases—including the pending lawsuit by the Mexican government against eight U.S. gun companies.
Gun litigation’s beginning
Around 48,000 people die from gun violence in the U.S. each year.“[The gun] industry profits from that activity,” Lowy said. “It’s a perfect place for civil litigation to force companies to internalize some of the costs, the harm that they’re causing, in order to change their behavior.”
Gun litigation began to pick up pace in the 1980s, when a foray of lawsuits was levied against manufacturers of “Saturday Night Special” guns—small, cheap guns often used in criminal activities. The lawsuits aimed to hold manufacturers liable when their guns were used for crime, but they were almost entirely rejected by courts.
Lowy got his start in gun litigation in the late 1990s, with a mission to hold manufacturers accountable for the harm their guns caused. Lowy won many cases thanks to fastidious research, and major U.S. cities started to follow suit, with Lowy serving as co-counsel in many instances.
The cases saw mixed results, but news of the movement reached then-President Bill Clinton, who threatened to bring a federal case against the gun industry that resulted in a major settlement with Smith and Wesson.
Irregular regulation
To set the scene for the current state of gun litigation, Lowy introduced PLCAA, the Protection of Lawful Commerce in Arms Act. “It is the only piece of federal legislation that prevents an industry from being liable for basic negligence,” Lowy said. “There is nothing like it in the law, and that led to the dismissal of a lot of cases that I was bringing.”
Since then, courts have established several exceptions under PLCAA. But gun litigation faces another major roadblock: the Second Amendment.
“I think it’s an objective fact that the gun industry is far less regulated than, in some ways, every other industry in the United States,” Lowy said. “Guns are the only consumer product that is exempt from federal safety oversight. The federal government can recall bunk beds or BB guns if they could be made safer—they can’t do that with real guns.”
The 5%
Lowy’s work centers around getting gun manufacturers to reform their distribution practices and take more care in vetting their distributors and dealers.
“The theory behind the cases that I’ve been involved in simply argues that gun companies should sell guns the right way as opposed to the wrong way,” Lowy said.
“ATF has found that about 90% of gun dealers sell no-crime guns. They’re doing the right thing, they’re responsible business people,” Lowy said. “About 5% of gun dealers are selling about 90% of the crime guns.”
Therein lies the problem according to Lowy, who sees manufacturers as the source of the issue that has spread outside of the U.S. to Mexico and other parts of the Americas.
“The problem with manufacturers is they should be selling guns only through the 90%,” Lowy said.
The flood
The lawsuit brought by the Mexican Government is potentially groundbreaking in the sphere of gun litigation. But why bring a case from over the border to argue for better gun control in the U.S.? Lowy believes Mexico’s problem is a function of poor regulation in the U.S.
“Mexico has one or maybe two gun stores in the entire country—it’s got really tough laws,” Lowy said. “It’s really hard for criminals to get guns through the Mexican market, yet they have one of the biggest gun violence problems in the world. Those guns are almost entirely from the U.S.”
Lowy made an analogy to help the audience better understand Mexico’s predicament.
“It’s like if you had a country that had no heavy industry, no pollution,” he said. “Yet there was a flood coming across the border from its neighbor that was irresponsibly releasing toxins and chemicals.”
Manufacturers in the crosshairs
Many traffickers go about their dealings in a very overt manner, according to Lowy. This makes it easy for dealers to pick out potential traffickers, so repeat offenders are likely aware of who they are selling to. “The classic case is you have one, maybe a few people, go into a gun store and buy five, maybe 10, AK-47s or AR-15s and usually pay in all cash,” he explained “Then they come back a week later.”
These practices have gone on for decades, which is why the gun manufacturers themselves are to blame. The first of Mexico’s two lawsuits against manufacturers is based on the theory that they
have known for decades that almost all crime guns are sold by a small percentage of dealers,” according to Lowy.
The second lawsuit seeks to establish safer sales practices by negligent dealers.
“In both of these cases, Mexico is seeking damages to get companies to internalize some of the costs of harm and to compensate the Mexican Government for its costs,” Lowy said. “But also, Mexico is seeking injunctive relief—orders from the courts that would require manufacturers and dealers to sell guns the right way.”
Manufacturers argue that there are too many steps between them and the harm being caused in Mexico, but Lowy posits that traffickers are so easily replaceable that the problem must be targeted at the source.
Lowy also believes that stopping the flow of guns into Mexico might mitigate other problems at the border.
“In my view, the reason why we have fentanyl going across the border is because we sent the guns over,” Lowy said. “The reason why cartels are able to be massive global enterprises is because of US guns. You also wouldn’t have nearly as much migration”
To Lowy and many others, stopping gun trafficking at the source could be a panacea for many gun-related issues in the U.S. and Mexico.
