Two courtrooms wins for the Second Amendment

9th Circuit deletes former Prof. Bellesiles material from
a court decision and the Florida lawsuit award is dropped.

FYI (copy below):
http://www.opinionjournal.com/columnists/clevey/?id=110002984
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Bang Bang, Your Suit’s Dead
Two courtrooms wins for the Second Amendment.

BY COLLIN LEVEY
Wednesday, January 29, 2003 12:01 a.m. EST

This week, two unlikely judges shared a small moment of
justice on behalf of the Second Amendment.

In Florida, Judge Jorge Labarga, of butterfly ballot fame,
threw out a $1.2 million award against the distributor of a
handgun used by a kid to shoot his teacher. In the Ninth
Circuit, Carter appointee Stephen Reinhardt returned to an
earlier antigun opinion and deleted references to the work
of Michael Bellesiles, the historian whose Bancroft Prize
was revoked because of serious questions about the honesty
of his scholarship.

Why are these judicial straws in the wind significant? They
mark a trend that began to emerge last year. As Americans
have begun to think differently about their personal safety,
courts have begun looking at the gun question in a more
sober light.

The Florida case turned interesting last November, when a
state court jury held, in a suit brought by the widow of the
murdered middle-school teacher, that the handgun maker was
partially liable for the death of her husband. In addition
to laying blame at the feet of another person, who failed to
lock up the gun, and the school board, for failing to
control the 17-year-old killer, the jury slapped Valor Corp.
with $1.2 million in damages.

Though the school board and Valor reached out-of-court
settlements before the civil lawsuit, wary eyes were trained
on Mr. LaBarga, whose decision would have potentially
important implications. Lawyers and legislators across the
country have been working to chip away at product-liability
protections for gun companies, and by extension,
distributors. Here was a test.

Last summer California’s Senate voted to make it easier for
people to sue manufacturers for negligence, and several
unresolved municipal lawsuits are going the same route.
When Cincinnati wanted to sue the pants off gun companies,
the Ohio Supreme Court allowed the city to go ahead on
grounds that gun manufacturers were potentially liable for
creating a “public nuisance.”

This strain of thinking has made a few inroads lately. Just
days before Mr. LaBarga threw out the Valor award, relatives
of two sniper victims in Washington filed suit against the
Windham, Maine-based maker of the XM15 rifle that was
wielded to such deadly effect by John Allen Muhammed and
John Lee Malvo.

Gun companies make attractive targets, even if their pockets
aren’t as deep as those of cigarette makers. And as any
trial lawyer worth his Ferragamos will tell you, product
liability suits against anything from cigarettes to drugs
like Norplant have succeeded without ever going to trial.
The political heat regularly forces manufacturers to settle
rather than risk a bankrupting verdict, plummeting stock
price or knee-jerk congressional action.

But even so, guns are supposed to shoot the things you point
them at, and would be no use to legitimate users if they
didn’t. It’s a stretch even for today’s wacky juries not to
see the disconnect in calling the failure to put a trigger
lock on a gun “negligence” when no law or regulation
requires you do to so. As Mr. LaBarga noted, a maker can be
considered negligent only if its product is defective, and a
product cannot be defective if it works the way it was
designed to.

The Reinhardt decision to delete the work of Mr. Bellesiles
may be of less legal significance but it has more cultural
resonance. Though Judge Reinhardt didn’t alter his finding
in the case, he did feel obliged to erase references to an
author whose book gun controllers had embraced because it
seemed to demonstrate that Americans’ belief in private gun
ownership was of recent historic vintage, not a product of
our deep past.

Mr. Bellesiles claimed to use colonial records to prove the
early Americans, including those who eventually would write
the constitution, were not gun owners and couldn’t possibly
have put the interpretation on the Second Amendment that gun
defenders to today. The story fell apart when other
scholars tried to recreate Mr. Bellesiles’s findings by
visiting the same records. Where he found few colonial
homes with guns, they found many.

All this comes against a background of renewed interest in
guns for self-defense. Gun-club membership is up across the
country. And unlike cigarettes, whose users aren’t eager to
be seen standing up and defending the industry, gun owners
have always had a stronger political voice than gun
manufacturers. The NRA, after all, is not a trade
group–it’s group of grass-roots gun owners.

The courts read the election results. Of the municipal
lawsuits against firearms manufacturers, Chicago’s was
dismissed, Detroit’s is bogged down, and the grandpappy of
them all, the case filed by New Orleans, was torpedoed by
Louisiana’s own Supreme Court–a decision the U.S. Supreme
Court declined to review. Those who hoped or feared the
guns were the next tobacco should be beginning to realize it
won’t be.

Ms. Levey is an assistant features editor of The Wall Street
Journal’s editorial page. Her column appears on alternate
Wednesdays.