The Meaning of a “Public Health Issue”
Physicians, including U.S. Surgeon General Vivek Murthy, often speak of gun violence as a public health issue, so it is important to have clarity on this term. In 1854, Dr. John Snow traced a London cholera outbreak to one contaminated pump. Rather than pleading with people to stop using the pump, he broke the handle off of it, bringing the cholera epidemic to a swift end. Dr. Snow changed the environment so that people would have to make healthier choices. This was a public health solution to a public health issue.
For the public health crises of the twentieth and twenty-first centuries, “breaking off the handle of the Broad Street pump” has often meant forcing industries to make their products safer. Industries have a long tradition of resisting public health–minded reform by blaming individuals for their poor health outcomes. People die in car crashes because they are bad drivers. Smoking is a choice people make of their own free will. Neglected children in chaotic, poor households eat peeling paint off the walls and get lead poisoning.
For the auto, tobacco, and paint industries, litigation and legislation helped to bring about life-saving industrial reforms. The rate of car crash deaths per 100 million miles driven has dropped by more than 90 percent since the 1920s; the number of smokers has dropped by more than half since the 1960s; the scourge of childhood lead poisoning has been lifted from most communities. This, despite the fact that we drive more (and more distractedly) than we ever have, people’s willpower has not grown stronger, and toddlers of all income brackets still put things in their mouths.
We are past due to bring the gun industry into the spotlight and subject it to legislation, litigation, reform, and a reckoning of public opinion. The gun industry grows more prolific and profitable as time passes. Until 2005, between 3 and 5 million guns were manufactured for domestic sale annually. From 2005 until 2013, that number mushroomed to 10.3 million guns. The COVID-19 pandemic brought on an unprecedented surge in gun sales as well. As gun sales have increased, so has the share of guns that are highly lethal (high-caliber pistols and rifles) and highly concealable. The gun industry brings in revenue topping $28 billion annually.
The Protection of Legal Commerce in Arms Act
In 2005, George W. Bush signed a bill that the National Rifle Association (NRA) would call “the most significant piece of pro-gun legislation in twenty years.” The Protection of Legal Commerce in Arms Act (PLCAA) protects gun sellers and gun manufacturers from liability for nearly all crimes committed with their products. Prior to the passage of the PLCAA, the gun industry had faced suits for negligence, including suits by the mayor of Chicago and the city of Bridgeport, Connecticut.
For too long, gun violence has been seen as a result of inadequate law and order (for homicides), mental health access (for suicides), and parental supervision (for unintentional shootings). Thankfully, the new language of gun violence as a public health crisis has led to nationwide calls for legislation to strengthen gun regulations. But in order to meaningfully save lives from gun violence—in order to have a true public health approach—the PLCAA must be repealed, and litigation must be part of the solution. The following are some long-overdue, common-sense reforms that might become reality if we had a vulnerable, accountable, and liable firearms industry.
Smart Gun Technology
In the United States, the number of children who live in a home with a loaded, unlocked gun is more than the number of children who play high school football. Every year, some of those children will gain access to their parents’ guns. Older children will point it at a friend or sibling and pull the trigger in jest. Toddlers, whose forefingers are often too weak to fire a gun, will turn the gun around so the barrel is facing them—this allows them to use their thumb to pull the trigger. In 2020, 143 children died this way.
Older children also fall prey to their parents’ guns. Up to 90 percent of the guns used in teen suicides, unintentional shootings, and mass shootings perpetrated by minors are guns taken from their home or the home of a friend or relative.
Smart gun technology offers promise to stop children from shooting themselves or their siblings unintentionally. Smart guns rely on biometric data, such as fingerprints or a radio-frequency identification chip, to ensure that only a gun’s owner can fire it. The technology exists and is tantalizingly close to being optimized to the point where smart guns could be widely available for public use. In 1999, Smith & Wesson proudly touted an intention to develop smart gun technology but then had to retract due to an outpouring of vitriol from gun rights activists, including an NRA-sponsored boycott. Most major gun manufacturers have shelved further research and development into this life-saving technology.
Surely, there are gun-owning parents out there who would opt for a smart gun in order to provide self-protection without fear of their child accessing their firearm. In fact, of non-gun-owning people who are planning to buy their first gun in the next year, 60 percent would consider a personalized smart gun.
Repeal of the PLCAA would open up gunmakers to litigation on behalf of parents whose children might still be alive if gun manufacturers had not intentionally shunned technological advances that could make guns safer for children. Such suits could result in the commitment to invest in smart gun development and manufacture.
Less Toxic Advertising
Before the onslaught of litigation against tobacco in the 1990s, the cartoon character Joe Camel was used to ingratiate a cigarette company to children. One study found that children recognized him at the same rate as Mickey Mouse. But Joe Camel no longer exists—he was retired as part of a 1997 settlement between R.J. Reynolds and 40 state attorneys general. Litigation was the tool used to reform the marketing practices of the tobacco industry and eventually led to the end of billboard ads and child-friendly marketing gimmicks.
After the Sandy Hook massacre, bereaved parents poured over the ads used to sell the assault rifle used to kill their five-, six-, and seven-year-old children and were appalled at the violent messaging. “Consider your man card reissued,” read a typical ad. Gun advertising has, in recent years, had a decreased focus on hunting and sport and an increased focus on self-protection, home invasion, and concealed carry in public places. The industry also advertises toward children with Junior Shooters magazine, rifles designed for children, and “national take your daughter to the range day.” The marketing practices of the gun industry are ripe for reform, and the lessons of anti-tobacco litigation offer hope that the courthouse is the best place to achieve it.
Unarmed College Campuses
College campuses have become one of the latest battlegrounds for gun rights activists to promote the agenda of “guns everywhere.” Ten states now allow concealed carry on the campuses of public colleges and universities. This is despite the fact that surveys of both students and faculty find that the vast majority do not want armed people on their campuses.
A study by researchers at Johns Hopkins found that right-to-carry laws are associated with increased homicide, suicide, and unintentional shootings. As an adolescent medicine doctor, I dread the notion of teens and young adults experiencing the emotional highs and lows of college—binge drinking, breakups, bad grades, and social rejection—all with underdeveloped frontal lobes and guns strapped to their waistbands.
The arms industry, which cannot be held liable for any tragedies that might ensue from campus carry, has not opposed the march of campus carry laws across the country. With the repeal of the PLCAA, the industry might reactively—or even proactively—take a stand against arming emotionally vulnerable college students.
A National “Red Flag” Law
In 2018, a shooter killed 17 students and teachers at Marjory Stoneman Douglas High School in Parkland, Florida. Those who knew the shooter were not entirely surprised, for he had a history of hurting animals, being violent to people, introducing himself as a school shooter, and posting on social media about his desire to kill people. People had been concerned enough about him to call the local sheriff’s office and the Federal Bureau of Investigations tip line. However, because he had no criminal record, he was allowed to buy and keep a gun.
After he committed mass murder, Florida and other states passed Extreme Risk Protection Order (ERPO) laws, known colloquially as Red Flag laws, that allow a judge to remove guns from the home of someone deemed a danger to themselves or others. In the first two years after the passage of ERPO in Florida, it was invoked approximately 3,500 times.
ERPO has passed in at least 15 states, but a federal ERPO law remains elusive. The gun industry should wholeheartedly embrace the common-sense idea that people threatening homicide or suicide should have their guns temporarily removed. If gun sellers and gunmakers could face litigation for the loss of life brought on by their products, perhaps they would more readily support the passage of this gun safety law on a federal level. One could even imagine a public health campaign, in the style of the Truth campaign funded by tobacco settlement money, educating people on ERPO. (“Is your friend struggling? Is your spouse going through a dark time? Let’s get their guns out of the house for a little while so they can get help.”)
Universal Background Checks
In the aftermath of Sandy Hook, there were countless marches for gun control across the country. One of the most poignant handmade signs said simply: “How could anyone be against a background check?” Currently, about one in five firearm sales happens without a background check, often through a private sale, such as those that occur at gun shows. Such unchecked sales provide guns to people with a history of a felony or domestic abuse.
Universal background checks on all firearm sales is perhaps the most obvious, common-sense gun safety proposal in existence. It has been passed by the House of Representatives and is awaiting the Senate. Gun violence researchers consider background checks and ERPO laws to be two measures that could significantly prevent mass shootings in the United States.
If the gun industry found itself accountable and liable for the murder of children committed so often with its products, it stands to reason that firearm executives might find their hearts suddenly moved to support background checks and perhaps would help move the bill through the Senate and become the law of the land.
The Filibuster: An Obstacle to Repealing the PLCAA
As the Senate stands now, with a 50/50 party divide and a tiebreaking vote by Vice President Kamala Harris, the PLCAA stands little chance of repeal, as it would need 60 votes to pass. The road to PLCAA repeal, as well as other life-saving federal gun reform policies, will only open up if the filibuster can be repealed or replaced. At the time of this writing, this seems unlikely but may be possible if the balance of the Senate shifts in 2022.
State-Level Efforts to Litigate the Gun Industry
Gun reform activists in New York are proposing a first-of-its-kind state bill, S.1048, to establish a right to sue gun manufacturers. By using the language of guns as a “public nuisance,” the bill aims to circumvent the PLCAA. If passed, this would offer a model for other states to follow suit and begin to chip away at the armor of gun industry immunity until a federal repeal of the PLCAA becomes possible.
How Can the Legal Community Be Involved?
The fight to repeal gun industry immunity will be long and fraught, but worthwhile. There are things that lawyers can do now to stay connected to this issue and start to move it forward.
First, talk and write about the PLCAA and the need for its repeal. By bringing the PLCAA into public consciousness, you can help to build collective outrage over this unjust law so that there is momentum for its repeal if and when the political window opens.
Second, stay involved with gun reform advocacy. You may be able to pursue statewide legislation to litigate the gun industry, as is happening in New York. At the same time, by building up grassroots organizations, there will be a stronger movement to repeal the PLCAA when the time is right. Advocate for repeal or reform of the filibuster, without which our country will not see meaningful changes to our gun laws.
Lastly, refill your emotional well by focusing on the human cost of gun violence. The work of public health is done by “zooming out” and looking at the big picture. But the work of advocacy is done by “zooming in” until you can hold the story of a single victim in your heart—this is how to sustain the energy needed for the work of gun reform in the United States.
