No Stupid Questions

The question is one of negligence calculus, aka The Hand Formula.

https://en.m.wikipedia.org/wiki/Calculus_of_negligence

I would state the question this way: should a gun maker have a duty to take reasonable steps to ensure the ultimate purchaser will not use it in a crime?

The concept of negligence calculus comes from a case involving what steps a mariner must take to ensure their boat does not breakaway from its mooring and smash the whole marina to all to shit?

The rule was stated:

[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.

A good example is the duty of a railroad to protect people at road crossings.

Is it enough to have a policy that conducters blow the whistle? Must the railroad ensure that there are gates, lights, and bells, at every crossing? If it is a blind intersection, must the conducter send the engineer down to the roadway to manually wave off any traffic?

1. The probability of the train causing an injury depends on how busy the intersection is.

2. The gravity of train injuries is very serious; I've seen it, they chop you up like a fish.

3. The burden of blowing a whistle is minimal, if it's a remote crossing that might be an adequate precaution; the burden of installing and inspecting crossing devices such as bells and gates is massive, but again the gravity of injuries resultant from trains is catastrophic.

The evidence a plaintiff puts forth in a civil lawsuit, to a jury of peers, in public, is to say: this is the extent of my injury, these are the circumstances in which I became injured, and this is what the defendant did or did not do to cause the circumstances. The question for the jury is, was the defendant's conduct reasonable?

The thing with guns, not unlike trains, is that second part of the equation: that the nature of resultant injuries are so serious, such as classrooms full of dead kids so blown apart by bullet that it takes DNA identify the bodies, or shopping plazas strewn with dead families who bled out trying to crawl away. You must think of all the injuries, not just the primary victims. The taxpayers of Newtown, Conn. had to build a new elementary school, paying workers' comp. benefits to town employees spouses and kids that could go on for decades. Hundreds of millions of dollars in damages.

The burden of prevention could be comparatively minimal. Doing a private background check on every purchaser is minimal. Insurance companies do it for every policy they write and every claim they adjust. And with data analytics it is easier than ever. Family status, work status, gun and ammo buying habits are apparently the major predictors of whether someone is likely to commit a serious gun crime. Here's another example: credit scores are apparently a better predictor of driving risk than driving history!

These questions of risk can be analyzed and can be apportioned.

In my view, gun owners and makers should be liable in tort for damages caused by their weapons. This is a matter of the intended use of the product and the privity of contract between the manufacturer and the end purchaser, no different than product liability law. People injured by guns should be able to bring the manufacturer before a civil jury and say: these are my injuries, these were the circumstances in which they happened, these are the steps the manufacturer took or did not take to prevent it, and let a jury decide if the steps were reasonable based on the probability that the harm would result and the extent of the burden of avoiding it.

It would be a lot of risk to manufacturers. If found liable, they would be able to sue the end user for contribution, just as in a product liability case; that's called subrogation.

You can get gun insurance right now but it's not required, which makes gun owners self insured. Gun makers could get business liability insurance, too; I think most of them self insure these risks, now, though, because they are immune from such lawsuits, that's why Remington went bankrupt after the suit against it for Sandy Hook went forward, and it was non or under insured.

If end users were required to carry insurance, the risk of damages is on those insurers, which it bear voluntarily in exchange for premiums. This relieves the manufacturers, the end users, and the public. Right now, the communities bear the entirety of the risk, gun owners can buy whatever guns they want, however many they want, and when they're mental facilities eventually decline to the point of the violent instability, they have no responsibility beyond their net worth.

And, as a matter of principal, even right now, nobody can claim to be a responsible gun owner if they are non or underinsured for damages caused by their gun.

You said it yourself when you compared cars to guns. Can’t really have it both ways by holding some manufacturers liable for the unintended uses of their products and giving others a pass. You could argue the same for knifemakers, baseball bat makers, etc. They’re both fairly good at causing traumatic injury or death. Cars OTOH are designed to prevent injuries or death as much as possible, even if they hit a pedestrian.

That said, you are absolutely correct about guns purpose being to deliver injury or death at a distance. That’s why they exist in the first place. No equivocation can change that, I don’t care if people target shoot with them or whatever, they’re killing machines.

Problem is that guns are a right in the US. There is absolutely no way on this earth that the people who wrote that right as an amendment had any clue of what guns would turn into, how they would be politicized, how people would have personal arsenals, or how much death they would cause among the population. Their shortsighted brevity when writing that amendment has killed tens of thousands of people every year.

Why shouldn't Microsoft be held accountable for everything illegal people do on Windows? Why shouldn't pharmacists be held responsible for prescription drug abuse? Why shouldn't a social media website be held accountable for users infringing copyright? If something is used illegally and the person who made it is held accountable, that doesn't really make sense even if you dislike the thing. For example, I hate YouTube, but it doesn't make sense for them to be held accountable for users posting copyright infringing content.

You'd like the film Runaway Jury.

What I don't like about this argument is it feels like the government trying to pass off their own responsibility to someone else. Like, if guns are so dangerous in purpose that manufacturers should be fined for shootings, then government officials should just be regulating gun ownership to begin with. Like, imagine if instead of criminalizing tobacco because of its dangerous health effects, the government said that anytime a person is caught smoking it tobacco companies get fined. At that point you may as well just outlaw the company itself. Which is fine. I have no problem outlawing gun manufacturing. But this is just an unnecessarily roundabout way of doing that. What are we actually accomplishing if we allow people to be shot and then take action and milk money out of the situation? A responsible government isn't trying to point fingers after a tragedy like a mass shooting and they certainly aren't trying to make money off of it. No, a good government takes the necessary direct steps to prevent those tragedies from happening again, especially if it's a common occurrence. No need to dance around a solution instead of tackling it head on.