Tort Claims Against Gun Manufacturers for Crime-Related Injuries: Defining a Suitable Role for the Tort System in Regulating the Firearms Industry

Gun violence is a serious problem in the U.S. For many years, in order to decrease gun violence, the sale and possession of firearms has been regulated by statute. This article argues that tort claims against gun manufacturers can complement legislative regulation, providing gun sellers and manufacturers with incentives to take reasonable measures to prevent gun sales to criminals. The article does not, however, endorse all tort claims against the gun industry. It argues in favor only of narrowly tailored claims that identify specific marketing and sales practices that increase the risk that guns will be used to commit crimes. The likely effect of such claims would be to make the firearms industry more responsible and to reduce gun violence. This article advocates an essential, albeit secondary, role for the tort system in regulating the gun industry. Legislatures ought to decide whether and under what circumstances the sale of guns should be legal. The tort system, by means of liability exposure, ought to discourage attempts by manufacturers to legally circumvent the aims of the regulatory system. On one hand, this article advocates a greater role for the tort system than those who view tort claims against the gun industry as illegitimate attempts to achieve more stringent regulation of the gun industry through the court system, following failure to do so in state legislatures and Congress. On the other hand, this article advocates a more modest role for the tort system than those who view the tort system as a primary source for industry reform, free of the corrupting political influences that distort legislative policy making.