While mass murders with weapons designed for warfare
escalate in scale and occur with a disturbing frequency, the ability to do
anything to inhibit access to these weapons by dangerous or disturbed people
seems to be beyond the reach of our political system. However, Kristin Hussey and Lisa W. Foderaro
provide an interesting discussion of a legal approach that has quietly been
moving forward in Surprising Progress in Newtown Families’ Suit Against Maker of the AR-15 Rifle. This article appeared in the New York Times.
“For two years, a group of families in Newtown, Conn., quietly laid the
groundwork for a legal case against the maker and sellers of the assault rifle
that on Dec. 14, 2012, claimed 26 lives — and shattered their own — in less
than five minutes.”
“The shooting at
Sandy Hook Elementary School was carried out with an AR-15, a military-style
assault rifle that has surfaced in recent mass shootings, like Aurora, Colo.,
and San Bernardino, Calif. On the eve of a hearing to determine whether the
lawsuit can proceed, a rifle similar to the AR-15 was used yet again — in an
attack early Sunday at a gay nightclub in Orlando, Fla., the deadliest shooting
in American history.”
Congress
passed a bill in 2005 that was intended to protect gun manufacturers from
liability should any of their products be use in a crime. The lawsuit intends to find a path through
that legal protection provided by congress and hold the manufacturers legally liable
for the types of weapons provided to the civilian population.
“The lawsuit seeks to overcome
the broad immunity given to gun makers and sellers under a 2005 federal law,
protecting them from liability when guns are used in a crime. But there is a
small window for holding companies accountable, including instances of
so-called negligent entrustment, in which a gun is carelessly given or sold to
a person posing a high risk of misusing it.”
“The 10 Newtown plaintiffs argue
that the AR-15 is a weapon of war — its cousin, the M-16, was the rifle of
choice in Vietnam — and therefore should never have been marketed to civilians.
They say, in effect, that the availability of a high-velocity weapon capable of
inflicting such rapid carnage constitutes such negligence.”
The argument being made is that the very idea of selling
a weapon designed for wartime killing to the general public is a case of “negligent
entrustment.” Wikipedia provides a definition of this term.
“Negligent entrustment is a
cause of action in tort law that arises where one party (the entrustor) is held
liable for negligence because they negligently provided another party (the
entrustee) with a dangerous instrumentality, and the entrusted party caused
injury to a third party with that instrumentality. The cause of action most
frequently arises where one person allows another to drive their automobile.”
“Similarly, if A lends his
handgun to B, knowing that B has a propensity for violence, A may be held to
have negligently entrusted the gun to B when B uses the gun to shoot someone
during an argument.”
Usually applied to the actions of individuals, the
lawsuit claims that the population as a whole is too dangerous to be allowed
access to these weapons.
“’The novelty of the approach is that it doesn’t depend upon an argument
that the manufacturer knows that a particular shooter is a high-risk buyer,’
said Heidi Li Feldman, a professor at Georgetown University Law School, who has
followed the Newtown litigation. ‘The novelty is that it substitutes the
general public for a particular individual’.”
As unlikely as
success might be, the legal effort has continued to move forward.
“Eighteen months after it was
filed, the lawsuit — naming the manufacturer, Remington; the wholesaler; and a
local retailer — is still in the early stages. But the case has not yet been
tossed out of court. Even some plaintiffs were startled when Judge Barbara N.
Bellis of State Superior Court, who has yet to rule on a final effort to quash
the case, set a trial date — two years from now — and ordered the defendants to
disclose marketing materials and other internal documents.”
The order to exchange information on marketing could be
critical. If the plaintiffs can claim
evidence that the manufacturers planned to market the AR-15 as a weapon of war (as
it was used in Sandy Hook Elementary and other instances) rather than for
sporting or individual self-defense uses, it could strengthen their case
considerably.
The manufacturers continue to contest the validity of the
legal case.
“The defendants have been
vigorously seeking to have the lawsuit thrown out, and they have one last
chance at a hearing on Monday in which both sides will make their cases. The
judge has until October to decide whether the case will go to trial.”
Can the Sandy Hook parents provide an argument to support
the notion that the general public is too dangerous and thus should not have
access to weapons such as the AR-15?
Perhaps. Let’s consider one
possible approach.
The following chart appeared in an article in The Economist. It was based on data tallied by the Southern Poverty Law Center. It illustrates the number of antigovernment groups
known to be in existence in the US, and how many of them are gun-carrying
militias.
Isn’t it curious how comfortable the ignorant, the
violent, and the bigoted are when there is a Republican president in office—and
how riled up they get when a black Democrat enters office?
There are hundreds of these gun-wielding militias in
existence. And what is their intent? Consider what can be easily obtained from the
website Militia News.
These quotes were from a lead article by someone named
Brandon Smith.
“Make no mistake, one day each
and every one of us will be faced with a choice – to fight, or to throw our
hands in the air and pray they don’t shoot us anyway. I certainly can’t speak
for the rest of the movement, but in my opinion only those who truly believe in
liberty will stand with rifle in hand when that time comes.”
“….you will discover multiple
countries around the globe, including the U.S., on the verge of the same
centralized and collectivized socialist occupation that the Finnish faced in
1939. The only difference is that while their invasion came from without, our
invasion arose from within.”
These “freedom fighters” need weapons to defend
themselves not from an external threat, but from an internal threat—from the
government…from the rest of us.
“The escalation of
totalitarianism will eventually overtake the speed at which the movement can
awaken the masses, if it has not done so already. There will come a time,
probably sooner rather than later, when outreach will no longer be effective,
and self defense will have to take precedence, even if that means subsections
of the public will be shocked and disturbed by it. The sad fact is, the faster
we wake people up, the faster the establishment will degrade social stability
and destroy constitutional liberties. A physical fight is inevitable exactly
because they MAKE it inevitable.”
And they believe the fight is not only necessary, but
inevitable. So when they buy an AR-15 it
is with the express intent of using it to kill representatives of the US
government. The existence of these
people is known to the gun manufacturers and to the NRA. Guns designed for warfare are manufactured
and sold so that these people can have access to them! The NRA lobbies to defeat all gun control measures
in order to assure the ability of these people to wage warfare against their
government—against us!
Think about that for a moment. Any person who is in law enforcement, public
service, or in the military, or has a child in one of those occupations, should
realize that selling AR-15s puts those weapons in the hands of people who spend
their time training to use them to someday kill you, or someone like you, or
your children.
What could be more insane than enabling such people by
providing them with access to weapons capable of mass murder?
So yes, making military style weapons available to these
people should qualify as negligent entrustment!
Perhaps there is some hope for the Sandy Hook parents—and
for us.
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