The Wrong Target
February 6, 2005
By Walter Olson
IN January, Mayor Michael R. Bloomberg signed a bill passed by the City Council making gun makers and dealers liable for crimes perpetrated with their products unless they adopt a "code of conduct" that, among other things, would limit the number of handguns they can sell to one person and require background checks on prospective buyers at gun shows. The strange thing about this new law is that it applies not only to sales within New York City, but also to sales in other states and cities.
This new law is too clever by half and it's also shortsighted. It insults the right to democratic self-governance of the 273 million Americans who don't live in New York City. Moreover, it may have a consequence that Mayor Bloomberg and other gun-control advocates have not foreseen: it could be further impetus for a bill in Congress, nearly enacted last year, which would pre-empt local efforts at gun-control through litigation.
It's hardly a secret that New York City is out of step with the rest of the country on issues involving firearms. But there's no need to reargue the gun control controversy to appreciate a few basic points.
First, whatever the merits of the city's gun permit process, which makes it nearly impossible for ordinary residents to own guns lawfully, it's an act of aggression against citizens of other states to try to control gun sales nationwide, as the new ordinance would do. The residents of Georgia, Idaho, Indiana and Vermont happen to prefer a different balance on gun liberty, and New Yorkers have no more right to pass a law overriding their chosen policy than, say, social conservatives in Salt Lake City or Cincinnati have a right to pass a law about the sale of alcohol or indecent literature in New York - no matter how annoyed they may be that some of those products make their way into their states.
And second, again leaving aside the merits of gun control as a policy in itself, it is wrong to try to smuggle such controls in through the back door by punishing dealers for gun sales that were lawful at the time. Yet under the new ordinance, distant gun manufacturers and dealers could be made to pay damages for a shooting in New York City even if the presence of the gun here did not result from any bad acts of theirs. For example, under the new law, if a gun had been stolen in a burglary from a lawful Florida owner, the manufacturer and dealer could be legally responsible for death or injury to a person in Queens. Their only defense would be to show that they had adopted the city's stringent new guidelines, which go well beyond current federal law.
Last year, Congress nearly passed a law that would have forbidden most lawsuits by crime victims against gun makers and dealers. Indeed, the bill was defeated only by opponents attaching an amendment that would have renewed the assault-weapons ban, a step intended as a poison pill to get gun-rights groups to withdraw their support for the bill, which they did.
When the issue returns in this year's (more pro-gun) Congress, Mr. Bloomberg's new law is likely to serve as a prime exhibit of the case for federal pre-emption on the issue of gun liability. The new city law makes it absolutely clear that anti-gun enclaves intend to inflict their will on other states. Lawmakers from the rest of the country will then, appropriately, move to defend their states' preference through federal legislation.
The mayor and City Council of New York seem to think they can make laws that bind the rest of the country. That's an arrogant stance - and when the rest of the country is heard from, it's apt to be a losing stance as well.
Walter Olson, a senior fellow at the Manhattan Institute, is the author, most recently, of "The Rule of Lawyers."
©2005 New York Times
About Walter Olson: articles, bio, and photo