The NRA, the Brady Campaign, and the Politics of Gun Litigation

For many big city mayors and gun control advocates, filing lawsuits against the firearms industry represents a way to pursue gun control policies that they have failed to achieve through the political process. Efforts to pass laws mandating safer gun designs and imposing marketing restrictions have for many decades been thwarted by the National Rifle Associate (NRA) and its legislative allies. The mayors and gun control advocates blame their failure to achieve stricter gun laws on NRA corruption of the legislative process. So they have turned to the courts, asking judges to impose gun controls that they believe would otherwise be passed by an uncorrupted legislative process. In response to these lawsuits, the gun industry, with help from the NRA, has turned to state legislatures and Congress for protection. Together, they have introduced bills seeking statutory immunity from suit in forty-six state legislatures and Congress, and industry immunity laws have been passed in thirty-two states, including Texas, Florida, Pennsylvania, Virginia, Georgia, Michigan, and Ohio. Supporters of these immunity bills have argued that plaintiffs are misusing the tort system, seeking gun control regulations through litigation that they have been unable to achieve legislatively and filing municipal suits en masse in order to create overwhelming defense costs that will force the industry to settle, regardless of the legal merits of the claims against them. Proponents of the lawsuits respond that the gun lobby's success in obtaining statutory immunity merely confirms its undue legislative influence, which explains the need for filing lawsuits in the first place. Furthermore, proponents of the suits point out that the industry's statutory immunity undermines the integrity of the tort system, determining liability on the basis of political muscle rather than judicial procedure. Thus, while the gun industry and its supporters accuse plaintiffs of misusing the court system in order to subvert legislative democracy, plaintiffs and their allies accuse the gun lobby of corrupting the legislative process and undermining judicial independence. Both sides in the controversy over gun litigation have sought to gain an advantage by using one branch of government in order to compensate for lack of influence within another. The debate is no longer merely about the merits of gun control, but also about whether to hold the debate in the statehouse or the courthouse. In this chapter, I critically examine the arguments of both sides. On one hand, I question gun control advocates' justification of gun litigation as a response to legislative failure. There is reason to be skeptical of the claim that NRA influence has corrupted the legislative process and that this justifies recourse to the courts as a way to circumvent the legislative process altogether. On the other hand, I challenge defendants' use of immunity legislation to stifle litigation. Broad grants of statutory immunity undermine the integrity of the judicial process by resolving lawsuits on the basis of political power rather than legal principle, and they impair the capacity of courts to play a supportive role in refining and enforcing the legislature's own regulatory policies.