The Washington Times
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A legal system gone bonkers

     It's craziness of the first ilk, these lawsuits brought by 30 cities and counties against gun manufacturers, and that's the least of the pejoratives that could be used to sum up what's happening.
     The suits also constitute an attempted subversion of democratic processes, a threat to the predictable rule of law and an abuse of power that could be financially crippling to an industry not even accused of doing anything illegal.
     In California, where a trial is scheduled to get under way next year, the contention of Los Angeles, San Francisco and other cities is that some guns end up in the hands of criminals and that the manufacturers have done nothing to stop it. The issue, in other words, is not whether they were selling defective products. They weren't. The issue is that they caused a public nuisance by their failure to become proactive cops.
     A New York Times story has a revealing quote in this connection from a co-counsel in the California suits.
     "One of the ways the companies do this [let guns get in the wrong hands] is to basically sell to anyone with a federal firearms license," he says.
     But of course.
     The manufacturers should be able to assume that if a dealer has a license, the government has said it is OK to sell to him. The quoted lawyer goes on to say the manufacturers should find out which dealers have the worst records of selling to people who use the guns in crimes, but why isn't this a government obligation? If the dealer is somehow breaking the law, the government could retrieve the license. Or if the dealer is within the law, the government might consider new laws to regulate operations.
     But the cities and counties that have brought the suits have no wish to defer to constitutional means of establishing law, namely through action by elected legislators. Their purpose is to skip legislative bodies — and also the people, of course — in the hope that the courts will continue usurping the legislative function, making law themselves. In this wink-wink-nudge-nudge abandonment of legal tradition and the basic law of the land, law becomes unpredictable, and one of the central foundations of America's success in the world is threatened.
     Even if the manufacturers win the suits, one analyst has noted, they may lose. A problem is that it will cost the manufacturers huge amounts of money to defend themselves in jurisdictions all over the country where negligent judges are allowing the suits to proceed. Unlike tobacco companies, which gave up fighting multiple suits and made a big-time deal benefiting all but four states, the gun manufacturers are not extraordinarily rich, it has been observed. Whichever way these suits come out, they are looking at having their knees banged by sledgehammers.
     In the views of some, the tobacco companies did a huge disservice to the legal system when they opted to go for a loss in relatively sure amounts instead of continuing to assert legal rights in an environment where the possible losses could be far worse. Their concession obviously encouraged governmental units to look for more targets, gun manufacturers being one of them.
     Those people who think this legal aggressiveness socially meritorious should note that most of the tobacco money is being used by states for needs other than antismoking efforts. The fact is, states now have less incentive to keep smokers healthy than to keep the cash-providing tobacco companies healthy.
     The New York Times story on the gun suits says an important development in the California case is the disclosure of a letter in which a federal agent advised a gun manufacturer to try to figure out if it was selling guns to some dealers that were putting a great many guns in the hands of criminals. I am one layman who is confused about why this should matter.
     If a federal agent wrote a car manufacturer that it would be a good idea to keep track of dealers selling cars to people with high incidences of drunken driving, would that mean car manufacturers would have a disadvantage in a lawsuit filed by local governments?
     Come to think of it, it might. Given the craziness of the American court system in our times, it just might.

Jay Ambrose is director of editorial policy for Scripps Howard Newspapers.