By the Gun and Pill…

During the course of an evening, I spent some time in the Twitter-verse discussing gun control. This was in response to the fact that Biden’s @POTUS account tweeted his support of additional gun control legislation — something that the majority of the United States Citizens support. The specific issues he focused on are:

1. Universal Background Checks

2. Assault weapons ban

3. Eliminate gun manufacturers’ immunity from liability.

Specifically, I was drawn into a prolonged conversation about that third point, with some sporadic offshoots to the second as well. Almost no one argued about the first point that Biden made. Here I’ve compiled some topics and explanations of what was covered.

Regarding Gun Sellers’ Immunity from Liability

Up until 2005, gun manufacturers and dealers could be brought to court by private citizens for crimes resulting in death or injury related to the weapons they sell. Gabby Giffords, a victim of gun violence and former United States Senator, provides a detailed explanation of what’s in this law. Here’s a snippet from her website that sums it up nicely:

Generally speaking, the PLCAA prohibits “qualified civil liability actions,” which are defined as civil or administrative proceedings for relief “resulting from the criminal or unlawful misuse” of firearms or ammunition.

Whoa. What does all of that mean? In a nutshell, it means that the only ways that gun manufacturers can be sued in federal court are:

• if they knowingly sell a firearm to someone who they reasonably believe will commit violence

• if they (sellers) are negligent in the selling of the firearm

• if they violate state or federal law in selling the firearm

• if they breach a contract or warranty for the firearm

• if there’s a defect in the firearm

• if the Attorney General sues to enforce the Gun Act or National Firearms Act

That’s it. Any other reason and the lawsuit can’t be pursued. Seems pretty innocuous, so what are so many people upset about? There are a few reasons.

One reason is that the violation of state or federal law provision, when pursued, hasn’t actually ever succeeded in court. The result of lawsuits around that piece has been that the laws being violated (in this case public nuisance laws) were excluded and could not be enforced because of the PLCAA. Translated, in the challenging cases, the state claimed that the sellers didn’t take reasonable steps to prevent the firearms from flowing into illegal markets. This happened in multiple cases.

The net result is that although on paper the law looks like it still allows reasonable regulation at the state level, in fact, it doesn’t. States can’t even dictate that manufacturers take reasonable steps to preclude criminals from getting those weapons unless the laws being violated are specific to firearms — of which very few states have laws specifically designed for the purpose. The general safety laws that refer to every other industry do not apply to firearms sales because of the way the PLCAA has been written and interpreted.

It gets worse. In Illinois, a boy shot his friend with a weapon. In that case, the court decided that the family intending to sue did have standing because the gun didn’t have requisite safety features to prevent misuse by children, nor did it carry a label indicating that it was unsafe for children. Not that those little plastic bags have warnings about children not playing with them — this firearm didn’t even have that. Standard stuff. Yet, because the firing of the firearm was a “volitional act”, meaning the gun didn’t go off on its own, the lawsuit couldn’t be brought because of the PLCAA.

In another case, even when a firearm was taken from a shelf — i.e. not locked up at all — of a gun store and then used in a crime, PLCAA pre-empted any lawsuit against the seller.

There are other examples. But in this case, if you limit your inspection to the letter of the law, then all looks somewhat reasonable. But once you look at how the law is actually being interpreted, it amounts to a significant hurdle for individuals to overcome to seek redress for even simple negligence on the parts of firearms sellers. So when I mentioned this (not at this level of detail, of course), then others responded with what they considered a comparable industry: pharmaceutical companies. “Big Pharma”, they claim, has the same sorts of limitations on lawsuits. Should Big Pharma be allowed to keep their limited liabilities and lawsuit preventions? Hence this next section.

Regarding Big Pharma Immunity from Liability

We have to be specific here. In the twitter-verse, people aren’t necessarily fully clear about what they are talking. When people are suggesting immunity, my gut reaction is to say no — which I did. A case right now against the Opioid manufacturing dynasty proves this to be empirically false.

But when people say this, they picked up an unclear sound bite and are usually specifically arguing about vaccine immunity. That is, if someone has an allergic reaction or side effect, they cannot sue. Legit, sure. In 1988, there was this thing called Title 42 that limits vaccine-maker liability by preventing lawsuits. Specifically, this grants protection in 4 cases (as opposed to blanket immunity and granting exceptions in only 6 cases). The pharmaceutical company lawsuits are blocked:

• “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings”

• if the manufacturer didn’t provide direct warnings to the injured party specifically

But in 2005, Title 42 was amended to add that manufacturers must be willfully negligent in order to be sued, which substantially raised the bar. One thing that was also done, however, was the establishment of two boards for redress: the VICP program and the CICP program. These courts were established to mediate claims by victims who couldn’t sue manufacturers of the drugs but were adversely impacted by the vaccines they were provided. So in a nutshell, pharmaceutical companies have as much immunity to create and distribute vaccines as gun companies do to make and distribute guns. However, there is an avenue for compensation for vaccine-related injuries or deaths, and there is notably not one for firearms-related injuries or deaths.

Are Guns and Vaccines the same thing?

So can we then say that we should keep the immunity in place for both, or remove it for both, but not make them different?

Absolutely not.

As we say in the Marine Corps, one of these things is not like the other. Specifically, when we need rapid development and deployment of vaccines, and we’re asking companies to prioritize that, then one of the important questions to answer is about who is liable if something goes horribly wrong? Doing anything “quickly” has inherent risk, and companies must be willing to step into the fray. This is, therefore, more an issue of right and wrong than anything else.

Is it right to ask companies to drop or at least reprioritize whatever they are doing to develop something quickly for the greater good, and then also ask them to open themselves up to liability for doing so?

No, I’m not naive.

I absolutely get that the greater good isn’t the only (or even the biggest) motivation that pharmaceutical companies use to do things like develop vaccines. But it still isn’t right to ask them to step up, and then when they do, hit them with a bunch of lawsuits.

In the United States right now, there are 1.2 firearms per person in the country. That means over 400 million firearms right now are in people’s homes. The United States government isn’t trying to incentivize firearms manufacturers to rapidly do anything to create more weapons outside of military contracts — and that’s a whole different conversation. There are no novel new pandemic-like things happening that require the United States to roll out, en masse, an entire set of weapons. If something should happen, requiring the scale-up nationwide of numbers of firearms, then the Defense Production Act exists for exactly that purpose. Some might remember that the Defense Production Act was used in support of COVID-19 vaccine development also.

Now, the DPA, as it’s often referred to, can’t be used to force the creation of something net new, because it isn’t known how long or if there would ever be a COVID-19 vaccine, for example. But what the DPA can do is bolster supply chains so that whoever is developing the COVID-19 vaccines can do it faster and better. The novel nature of vaccine development means that the government couldn’t order vaccines, even if it wanted to.

And, when the DPA is authorized for firearms, it’s not used for individual firearms anyway. It’s used for military weapons and those weapons are maintained under the control of the military or subcontractors, which means that liability issues don’t really exist. If you’ve ever been in the military you know that there is no form of redress outside of the UCMJ — as was held up recently (ironically enough) as a bunch of military members tried to sue Biden in federal court. Yeah, that didn’t work.

All this to say that we are not in danger of running out of firearms, and if we were, our fine military could use the DPA to get all the firearms it needs, with no problem, and with no liability. A bit of a simplification, but it gets the point across.

Private corporations, on the other hand, who have to develop novel treatments of new and unknown pathogens — well, those folks might need a little more security than “we promise we’ll look out for you.” Hence, protections were codified into law.

If you’re comparing vaccines and guns, and not seeing the difference by now, there’s not a lot of hope for you.

But what about my rights?

It does come to that, doesn’t it? Once you boil it down, the argument about liability for firearms dealers is more a belief than having anything to do with fairness across industries. Any investor will tell you that industries are different, and you can’t really compare companies across industries anyway. So if anyone tries to use that argument, calmly tell them vaccines are not guns and walk away.

Because the only thing left is the Second Amendment argument. And if you step into that one, you’d better be prepared. Ooorah!