Congress Should Repeal Special Immunity It Gave the Gun Industry

America faces an epidemic of gun violence in America, and opinions vary strongly on what to do about it. Some people believe military assault rifles should be banned or made much harder to obtain, while others contend nothing should be done to restrict access.

There are opinions on both sides and in the middle of those contours. They all depend somewhat on how expansive or restrictive a person’s opinion is of the 2nd Amendment, and whether they believe gun control legislation would be beneficial, harmful, or feckless.

What’s missing from the debate, however, is discussion of options that don’t infringe on anyone’s constitutional rights, such as repealing federal tort immunity for gun manufacturers and dealers. In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, at President George W. Bush’s urging. That law made gun manufacturers, distributors, and retail sellers immune from legal liability for wrongful deaths or personal injuries arising from gun violence, with only very narrow exceptions. Since its passage, gun manufacturers have been free to make as many guns as they can sell and to promote them however they wish. They have done so.

With just over 100 million guns in the US in 2005, we now have more than 400 million today. The US population grew by about 40 million people between 2005 and 2023, but the number of guns in circulation increased by more than seven times that number.

The oversupply of guns in America has fueled an increase in the number of violent gun incidents, just as the four-fold increase in prescription opioid supply during a similar period ignited large increases in opioid addiction and overdoses. When the supply of an injurious product increases substantially in US commerce, so too, do the harms that arise from it.

Were so many members of the House and Senate not beholden to the gun lobby, Congress could simply repeal the PLCAA and allow juries to hold gun companies liable for their roles, if any, for incidents of gun violence.

Why shouldn’t a jury be allowed to decide if promoting high-power, large cartridge, weapons of war to the average consumer makes that product unreasonably dangerous when used to murder civilians? They can do so for virtually any other type of product in America where the entire industry isn’t given special immunity by Congress or another legislative body.

Why is gun manufacturing entitled to this special exemption? Gun ownership is protected by the 2nd Amendment, but gun manufacturing is not. By simply removing this special shield against civil liability, we would force gun manufacturers to consider how they market their most lethal weapons, and to whom.
They would have to think about whether to make guns with handprint or fingerprint technology (like an iPhone) so only the purchaser who passed a background check could use the weapon.

No one’s constitutional rights would be impinged, and one would be affirmed—the 7th Amendment right to trial by jury—a guarantee that our Founders intended to be just as sacrosanct as the 2nd Amendment and all other freedoms inscribed in the Bill of Rights.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jeffrey B. Simon is an attorney licensed to practice law in Texas, California, and New York, author of Last Rights: The Fight to Save the 7th Amendment, and adjunct professor of mass tort litigation at Southern Methodist University Dedman School of Law.

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