Why do gun-makers get special economic protection?

The gun industry is one of very few industries to have congressionally backed immunity from liabilty.

As a result, it’s been largely shielded from responsibility for the deaths and injuries its products cause, with few exceptions.

How did this happen? And, in the aftermath of another tragic mass shooting, could this protection ever be overturned?

As an expert in constitutional law and product liability, I believe the answer to these questions lies in examining the economic and political clout of the gun industry.

Gun industry gets a protector

The gun industry acquired its protective shield in 2005 after a wave of lawsuits by cities threatened gun companies’ survival.

New Orleans became the first government to file a lawsuit against gun manufacturers in 1998. More than 30 other American cities and counties soon followed.

The suits, prompted by the growing epidemic of urban gun violence and patterned after claims brought by states against tobacco companies, initially succeeded by shining a spotlight on the industry. I was one of the lawyers at the Brady Center to Prevent Gun Violence who helped put these cases together. They uncovered evidence about how gun manufacturers could reduce risks by making changes in the way they design and distribute their products.

But then came the Protection of Lawful Commerce in Arms Act, which gave gun-makers a special immunity from legal responsibilities and blocked most of the claims. While Congress has occasionally limited the liability of companies making other products, such as medical devices and small aircraft, the degree of protection given to the gun industry was unusual and didn’t create alternative ways to regulate the industry and compensate those injured, as it did with the makers of childhood vaccines.

President Bush sits down to sign the Protection of Lawful Commerce in Arms Act, which shielded the firearms industry from civil lawsuits brought by victims of gun crimes. AP Photo/J. Scott Applewhite

Good times for gun-makers

Now a string of recent mass shootings, from Orlando to Las Vegas to Parkland, has brought renewed scrutiny to the gun industry’s products and practices.

It comes at a time when the firearms industry has enjoyed remarkable growth. In an unintended and sadly ironic way, the mass shootings actually contribute to the industry’s financial success.

Gun sales are strongly correlated to prospects for gun control and surge whenever it seems more likely that new legal restrictions on guns may be imposed. And this was the case in 2008, when the election of Barack Obama rejuvenated the then-stagnant industry. Fearful that President Obama would take away their guns, many Americans rushed to stock up on new weaponry. Production of firearms rose steadily throughout Obama’s first term, even though he did virtually nothing at that time to advance a gun control agenda.

The massacre at Sandy Hook Elementary School shortly after Obama won re-election in 2012 drove gun sales to unprecedented levels, with production reaching an all-time high of nearly 11 million in 2013 – yielding more economic clout than ever before.

The industry’s economic impact rose from $19 billion in 2008 to over $51 billion in 2016, according to the National Shooting Sports Foundation, the firearms industry’s trade association. And its impact is felt across the country in both red and blue states and politically important ones, from Texas and California to Florida and Ohio. Some of the nation’s oldest and largest gun companies are still based in the legendary “Gun Valley” region of New England, but there are other manufacturers scattered around the nation. Wholesale distributors and retail dealers operate virtually everywhere.