by Joseph Sanderson and Norman Silber
When the gun issue returns to Congress and to state legislatures around the nation, we should consider consumer safety as a model for tackling several of the dangers guns pose.
It is shocking -- but, alas, not surprising -- that a minority of Congress filibustered a bill requiring background checks to prevent felons from illegally purchasing guns. But gun sales were always only one part of the larger problem; and the gun issue requires attention to every dimension of it until lawmakers finally deal with all of the dangers of firearms. Many of the unnecessary injuries and deaths from weapons are best understood as consumer problems that will diminish if we treat them as such.
As we prepare for the next round of struggle, we should think of guns as the most dangerous products that consumers can buy in the American marketplace, and find ways to make them safer. At a minimum, we need to take the safety of guns no less seriously than we treat the risks attached to other products. Consumer-oriented safety standards, like those that apply to other products on store shelves, would save hundreds of lives.
Of Handguns and Hair Dryers
It's official: hand-held hair dryers can harm your health and can be dangerous to your family. On page 37636 of the 2011 Federal Register -- the official record of federal agencies' actions -- the Consumer Product Safety Commission announced that, based on an alarming trend of 0.3 hair dryer-related electrocutions per year, it was increasing its mandatory minimum standards to make America's bathrooms safe once more. And so it should: through similar CPSC actions, the number of hair-dryer electrocutions has fallen from more than 15 a year in the 1980s to its current near-zero levels, and hair dryers remain plentiful and affordable. But there's another hand-held device that causes at least seven hundred accidental deaths a year, about 500 of the victims being children -- and yet the CPSC is powerless to intervene.
You may already have guessed what that device is, but in case you haven't, you need only look to the legal definition of consumer products. The definition is broad, covering almost anything that a consumer might use, consume, or enjoy. There are a handful of exceptions, mostly of which deal with items regulated by other agencies -- aircraft, for example, or food and drugs. Buried in the middle of the list of exceptions, however, is this oblique reference: "any article which, if sold by the manufacturer, producer, or importer, would be subject to the tax imposed by section 4181 of the Internal Revenue Code of 1986." If that makes you think that someone -- say, the same lobbyists who convinced Congress to ignore overwhelming public support for background checks -- was deliberately trying to obscure what the provision refers to, you're right. For those few readers who do not have a handy copy of the tax code on the bookshelf, section 4181 covers firearms and ammunition.
Unlike any other dangerous consumer product, firearms and ammunition are not subject to safety regulation by another agency. The FDA controls dangerous or adulterated food and drugs, and aircraft safety is under the FAA's jurisdiction, so one might suppose that the Bureau of "Alcohol, Tobacco and Firearms" would do the same for firearms, but ATF is not in the safety business for guns. Existing laws and regulations don't include safety requirements for handguns or rifles -- including assault rifles -- beyond a single vague provision that requires federal firearms licensees (but not 'private' sellers) give buyers a lockable case or similar device. Combined with the 2005 law in which gun manufacturers persuaded Congress to exempt them from most tort lawsuits, the ordinary incentives that persuade producers to think about safety are strikingly absent in the firearms industry.
What this means is that innocent people are dying because neither regulators nor jurors can persuade gun manufacturers to protect consumers. Between 2000 and 2008, 706 unintentional deaths a year, on average, were attributed to firearms, and that's almost certainly an underestimate: it doesn't include unintentional fatal discharges during crimes, which are classified as homicides, or pure accidents misclassified as homicides or suicides. An average of 332 unintentional firearms deaths were in the home; even if every single death outside the home could not have been prevented by safer designs, that's still at least 1,100 times more than what we decided was dangerous for hair dryers. And for every death from dangerous gun design, many more are maimed. Intentional gun deaths are, of course, an enormous problem (and one a minority in Congress seems intent not only on ignoring but also on blocking the majority from tackling), but ensuring that manufacturers follow responsible design standards can complement measures to ensure responsibility in gun sales.
Saving Lives Through Design Rules
Studies are clear: simple consumer regulations will save the lives of owners and third parties alike. A study showed that 35 percent of gun owners don't know that a semi-automatic with the magazine removed may still have a round remaining in the chamber, and many accidental firearms deaths are based upon mistaken beliefs that a weapon is unloaded. Researchers have shown that loaded chamber indicators (LCIs), currently found on just 10-20 percent of new gun models, alone would likely prevent 20 percent of unintentional gun deaths, and that is a conservative estimate. Better designed LCIs -- current ones are not always easy to spot -- might save even more lives. Magazine safeties, which prevent the weapon from firing without a magazine, might prevent a further 4-7 percent; they're becoming more common since California started requiring them. Both of these technologies would add only a few cents to the cost of manufacture, and would save lives.
More ambitiously, firearm personalization technology, including fingerprint readers, might prevent up to half of accidental gun deaths -- and also reduce crime by rendering stolen and straw-purchased guns useless. Many states already require "drop-safe" guns, tested to ensure that they will not fire when they fall to the ground; those requirements can easily be extended nationwide. Chamber safety indicators for shotguns are widely used by law enforcement. Other options -- like heavier trigger-pulls or integrated trigger safeties -- also improve safety at little cost.
What's more, children -- who account for a clear majority of unintentional gun deaths -- would stand to benefit most of all from these safety standards.
Regulating gun safety, in ways no more lenient than the ways as we create standards for all other consumer products, is the workable solution.
Because gun manufacturers are immune from most tort lawsuits, insurers and shareholders don't pressure them to design safer guns. In every other industry, liability insurers bear the cost of dangerous designs through the tort system and push manufacturers to adopt safety standards that are often more demanding than the government's regulations. But firearms manufacturers decided that buying legislation was cheaper than buying insurance. That means we can't use the tort system to regulate gun safety. And individual gun owners are not required to hold insurance against torts committed with their weapons.
Educating gun purchasers isn't enough. Just as hair dryer buyers don't think about what might happen if hair dryers fall into the bath, firearms consumers discount or ignore the possibility of an accident. It's called optimism bias -- naturally, we all focus on what we want to happen, and we give too little weight to the risks because we don't think they'll happen to us. It explains why we make speculative investments and lose money on stocks--we know there are risks to investing, we're told investments sometimes lose value, but we think it won't happen to us. Information helps -- that's one reason Consumer Reports -- which hasn't rated guns since the 1960s, by the way -- exists, but information can only go so far. We need mandatory safety standards so these common-sense, low-cost design improvements can start saving lives.
This is not a camouflaged attack on the Second Amendment "right to bear arms". Prominent pro-gun advocates have endorsed the idea of consumer-style regulation as long as it isn't punitive and doesn't inhibit self-defense; and gun safety regulation would be scrutinized by a highly conservative and increasingly assertive D.C. Circuit Court of Appeals, which is hardly going to allow a ban through some regulatory back door.
Thousands of lives could be saved at little cost through consumer safety regulation of firearms. Ideally, the tort system would supplement consumer regulation, as it does for every other product. But with or without that, and whether it comes from CPSC, ATF, or some combination of the two, we need safety regulation to save lives. Today, we have neither an effective tort law régime nor an effective regulatory régime. And every day, we -- and especially our children -- pay the price.
Joseph Sanderson is a first-year law student at Yale Law School. He will be working for a consumer law organization this summer.
Norman I. Silber is a Visiting Professor of Law at Yale Law School and a Professor of Law at the Maurice A. Deane School of Law of Hofstra University. He writes about consumer protection, nonprofit organizations, and other subjects.
Coming next : the place of consumer protection in immigration reform.