We discuss gun control a lot, but never more than when gun violence makes the news, especially at a school or church. Fear clouds judgment and too often, civility. The bullets spread the fear and pain across the states, striking friends and relatives hundreds of miles away, many right here in our community. Emilie Parker, a Sandy Hook victim, was the daughter of an Ogden native. No one wants to get shot. No one wants their friends or families to get shot. One way to protect yourself is to have Big Brother protect you (pro-gun control) or the other way is to arm and protect yourself (anti-gun control). The one thing both groups have in common is that neither one wants to get shot. What both sides are missing is the possibility of implementing a more market-based solution to gun violence.
Let me explain by showing how ingrained market thinking is for lawyers. The first year of law school has a group of core classes that each lawyer spawn has to take: Property (deciding who owns what), Contracts (deciding the rules of how property can be traded), Torts (deciding what happens when people act negligently or recklessly), and Procedure (how the whole system works). The first year of law school primes us for how our advanced capital marketplace works.
Marketplaces buy and sell property -- land, stocks, cars, food, alcohol, etc. The law tells us who has the right to claim ownership in the property. Contracts dictate the terms of what we buy and sell. The contract can be as simple as passing cash through a drive-thru or the multi-page documents when buying a home. If a contract is breached, the entire legal system is in place for enforcement and collections.
On the other hand, the law protects you from harmful products. Let's say Toasters, Inc. sells you a toaster. You take it home and get out a nice thick piece of Great Harvest Bread. You stick the bread in the toaster, push down the black knob, and nothing happens. Worried, you touch the outside of the toaster and it's so hot, your hand gets third degree burns and your kitchen bursts into flames. The law of torts developed over centuries of trial and error through court rulings would allow you to get damages from the toaster manufacturer.
Take away even one of these legal elements and you have a dysfunctional marketplace. The marketplace within the confines of these rules is what we call the “free market.” The free market has been an excellent mechanism for creating and maintaining the societal good. All the cool, safe stuff in your house comes compliments of the marketplace. We’ve even developed rules around how to deal with dangerous things like alcohol. One experiment was the 18th Amendment that banned alcohol. Watch any early 1930 gangster movie to see how well that turned out. After the repeal of Prohibition with the 21st Amendment, the laws governing the sale and use of alcohol have been repeatedly refined and expanded. The advent of cars led to criminalizing driving while intoxicated. Utah and about 37 other states also have what are called Dram Shop laws, laws that make a bar or person legally liable if they hand the keys and a fifth of whiskey to the drunk stumbling out the door.
Now imagine if the drunk driver injures you and you decide to sue the bar, but instead of Utah’s law (Section 32B-15-2), you have a different law that allows the bar owner to have your suit immediately dismissed and demand attorney fees from you. How well is that law going to prevent the bar owner from selling alcohol to drunks? The economic incentive of such a law would be to sell more alcohol to more drunks, not less.
Economic incentives built into the system determine how careful sellers, manufacturers and even owners of dangerous products are when placing their products into the markets or using the products. In October of 2005, the Protection of Lawful Commerce in Arms Act was passed by Congress that greatly limited the ability to use the legal system to determine how much as a society we want our gun and ammo makers to take responsibility for their products. The law immediately dismissed any pending cases and prevented any new lawsuits that attempted to expand any liability for firearm sellers and manufacturers.
When the Protection of Lawful Commerce in Arms Act was first passed by Congress, lawyers in the federal government, state governments, cities, and private citizen groups had all been using common law torts (like the toaster) to fight gun violence by determining how tort law might be used to impose liability and provide some economic sanctions against gun and ammo dealers. Congress passed the law with the stated purpose of slamming the door on any possible legal changes impacting the firearm market. The law states that even though every type of government and private group seemed to be trying to expand liability for the dangerous products, the efforts “did not represent a bona fide expansion of the common law.”
The answer to the gun control debate isn’t about whether or not we should own guns. Outlawing dangerous products doesn’t work. We can’t outlaw guns, and the Second Amendment gives us the right to bear arms. The First Amendment gives us the right to discuss how our laws should be. We get to design how our markets work and who has to take responsibility when things go wrong. We should not be so narrow and political in our views, because none of us have the political view that it is a great idea to get shot. We have the capability and history to design market incentives into our laws, both through statutes and the common law. Wise changes could greatly limit gun violence tragedies. The real tragedy is we haven’t.