CONGRESS REFUSES to get serious about gun control, but there are signs that some kind of control may be forthcoming as a result of action in the courts. Inspired by the success of tobacco litigation, 28 cities and counties are suing gun makers, hoping to hold them liable for the carnage their products create. This legal assault has pushed the gun makers to sound newly enthusiastic about some useful measures, such as safety locks on handguns and distribution restrictions. Now Colt's Manufacturing Co., inventor of the revolver, has announced that the threat of protracted litigation is forcing it to close most of its retail gun business.
Guns do so much to disfigure America that any points scored against them must be welcomed. Nonetheless, these recent gains are troubling. As a legal matter, it is hard to see how companies making lawful products can be held liable when those products perform precisely as intended -- even when the intent is death. Recently a California appeals court ruled that a gun maker could be held liable for a criminal shooting: The maker in question had advertised its wares as fingerprint resistant, suggesting that it was deliberately soliciting criminals as customers. But this case is exceptional. The California court acknowledges that every other state and federal court to have considered the question has ruled against holding gun makers liable.
Moreover, as a political matter, it would be better if guns could be tamed by more democratic means. When policy is made through litigation rather than legislation, courts and legislatures risk a backlash. The courts will be accused of anti-democratic "activism," and lawmakers will be accused of buck-passing.
America needs tougher gun laws; indeed, an outright ban on handguns would be best. So long as litigation -- even litigation based on dubious legal theories -- proves effective, gun opponents will use it. But opponents should recognize that, if they advance by legal threats rather than by democratic argument, pro-gun forces will have an excuse to decry safety-lock regulations and other gains as illegitimate. That is why gun-control advocates need to keep up the pressure on Congress and on presidential candidates.