Tort Reform At Gunpoint

Under cover of darkness--or a relentless media focus on the Iraqi war, which amounted to the same thing--the House of Representatives recently passed a bill that made a single industry largely immune from lawsuits.

That industry is the one that makes and sells guns.

If a hospital leaves a sponge in your midsection, you can sue. If a car dealer sells you a clunker it hadn't properly inspected, you can sue. Of course, it may be that your suit will get nowhere. Witness the jurist who threw out the action by parents who argued that fast food made their kids fat, and who did it faster than you can say, "Do you want fries with that?"

But judges and juries and responsible litigants will be out of the loop and out of luck if what the National Rifle Association likes to call the "Reckless Lawsuit Pre-emption Legislation" passes the Senate. The people whose loved ones were allegedly shot by the D.C. snipers can forget about holding responsible the gun shop that was the chief enabler. Even though both the sniper suspects were legally banned from buying guns. Even though they had a Bushmaster rifle that came from a store in Tacoma, Wash. Even though federal agents couldn't find required sales records for the rifle. Even though the store is run in such a haphazard fashion that an audit can't account for more than 200 guns that were supposed to be on the premises.

"Frivolous lawsuits" is one reason Sen. Max Baucus of Montana gave for his support of what I like to call the Cover Your Butt or They'll Target It in the Next Election legislation. Is that really how easily senators can dismiss the widow of the bus driver shot in the back during the sniper spree, who was flabbergasted to discover that the gun industry may get special protections that no other business enjoys?

Like most Americans, that poor woman had no idea whom she was really dealing with. Not only does the NRA make things difficult for any elected official who doesn't go along with it; it does the same for gun manufacturers who don't toe the line. Take the case of Smith & Wesson, which made a deal with the government to adopt safety measures in exchange for an end to some lawsuits. Those measures were scarcely radical: hidden serial numbers, a trigger lock and a plan for better smart-gun technology, which allows a weapon to be fired only by authorized users. These are precisely the sort of efforts that might have led to fewer lawsuits down the road.

That's not how the all-or-nothing leadership of the NRA saw this treasonous display of compromise. In the aftermath of the agreement, Smith & Wesson lost an estimated 40 percent of its business. Dealers refused to stock its guns. The National Shooting Sports Foundation attacked the company as "foreign-owned." Under new ownership this year, Smith & Wesson prostrated itself at the feet of the real chief executive of the industry; its new chairman's first action was to glad-hand at the NRA convention.

The interesting thing about the organization's dominance is that it not only doesn't represent the views of many gun owners--it doesn't represent the views of some of its own members. It's easy to find NRA members who say they have no problem with gun licensing or registration, or the strict policing of negligent dealers. Lots of them welcome a smart gun. It would mean a child couldn't accidentally fire or a teenager commit suicide with a weapon kept for protection; a thief would wind up with a useless hunk of metal instead of a lethal weapon.

But the sensible attitudes of the average gun owner are lost in the relentless far-right positions of the NRA. What Congress gets instead is the rhetoric of the most successful extremist pressure group in America. And what Congress is now prepared to pass is its most extremist legislation ever.

Let's say that the members of the House commemorated the anniversary of the Columbine massacre by giving negligent gun dealers a free pass not out of fear of the NRA, but out of purer motives. Let's say this is really about fighting back against a ridiculously litigious culture. Ought tort reform to begin with firearms? Ought the gun industry, of all businesses, be the only one to be exempted wholesale from exercising reasonable care to prevent injury to others?

The man who taught my kids everything they need to know about gun safety taught them a one-word mantra: redundancy. The gun is not put away loaded. But even if the gun is not loaded, you put on a trigger lock. And even if you put on a trigger lock, you put the gun in the gun safe. Layers of protection between them and an accident, them and a mistake, them and injury or death.

There used to be redundancy in the system, too. Good manufacturers. Good dealers. If not, sanctions. Even lawsuits. If the NRA manages to intimidate the Senate into making its industry the only one in the nation with blanket protection from most lawsuits, what will be the premium in building a safer gun, in taking care when selling one? Not much. And the message from Congress will be clear: it's the NRA's country. The rest of us just live in it.