This essay has three components.

The first is a list of gun reform suggestions from the best article I have read on the subject.

The second is an extended discussion about legal liability. The latter includes both commentary on specific gun decisions and the growth in liability decisions elsewhere that are establishing new legal ground or have the potential to do so. My conceptualization is that the constitutional protection afforded gun ownership is increasingly a uniquely isolated phenomenon in the world of liability. More later.

The third and final component is my own responses to my recent Gun Survey.

A. “A Smarter Way to Reduce Gun Deaths,” by Nicholas Kristof; “New York Times” 1/29/2023

This is the most insightful article that I have read on gun reform. Kristof’s premise is that guns will never be banned, but, analogous to the set of policies surrounding cigarettes, alcohol, and cars, there are harmful public health implications to the ownership of guns which should be addressed. The article has exhaustive data on guns, their owners, and the wide variety of relevant laws throughout the USA.

As he points out, public health initiatives typically involve a bunch of “little” things that add up to an important overall impact. His suggestions are consistent with having such a list. These are representative of Kristof’s thoughts:

• No guns to those under 21 or to those who have a record of violent misdemeanors, alcohol abuse, or domestic violence. Moreover, no guns to those where a red flag exists (including stalking) that indicates they may be a threat to themselves or others.
• Background checks are an obvious essential with respect to the above policy, which would apply to the purchase of ammunition as well.
• If you need a license to drive a car, which is a dangerous product, you should need a license to acquire and own a gun.
• There should be restrictions on the type of guns available for purchase.
• Just as warning labels have proven to have an admittedly undefined impact on the purchase of cigarettes, they should be applied to guns as well.
• Raising prices through heavy taxes can play a role. As could an insurance requirement.

Kristof notes that since his graduation from high school in 1977, more Americans have died from guns than in all the wars in American history. He concludes that a harm reduction model could reduce gun mortality by one-third, which is approximately 15,000 lives per year. Can anybody argue that such a saving is not worth the multi-prong effort involved?

B.The Legal Liability Ledger

 It is my thought that the concept of legal liability, which is spreading to encompass a myriad of relatively new situations, ultimately could be more of a stimulus to gun reform than changes resulting from legislation, whether at the state or federal level. Judges will be faced with a different set of factors, major amounts of money will be involved, and gun reform will slowly inch forward. And, in complementary fashion, if parents and responsible educators are oblivious to what their offspring or students are doing and suffer criminal convictions as a result, more attention will turn to the issue of legislated gun reform, irrespective of the financial implications of liability.

The argument by those accused in many of the liability cases described below is that they have no control over the ultimate use of their product. However, awareness of misuse, especially when it touches frequency and severity buttons, is becoming a powerful offsetting factor. Marketing messages that cross the line from acceptable hyperbole to a linkage to socially destructive behavior create liability for those who are responsible for the message.

Caveat One of course is the constitution and the differing interpretations of its malleability. Learned minds tackle that thorny topic elsewhere. My financial point above might be phrased this way; if gun dealers are found liable for the disastrous misuse of the product they sell, they will be hit in the pocketbook and react, with no need for constitutional change.

Caveat Two is the work needed on reconciling HIPPA privacy mandates with responsibility to the community. For example, reflecting a public belief that the NYC subway system is not safe, Mayor Adams has added police, the National Guard, and gun-detecting technology to the system. On closer examination, it has been found that the majority of assailants have mental health issues, suggesting policy changes in that area could have a greater impact.

Caveat Three is the need for a bit of common sense to be injected into the legal conversation. For example, in New York City, the police picked up a guy whom they had seen putting a gun in his pants pocket prior to jumping in a van that was recognized as being one used by gang members. They checked his record, which showed a sex trafficking conviction, which meant he was ineligible to own a gun. The judge tossed the case out: “there was no probable cause to apprehend this individual, no knowledge that he was going to use his gun for an illegal purpose.”

Meanwhile, it is ironic that an on-going argument of the gun lobby – people need a way to protect themselves – may become more relevant with the outcome of the pending presidential election. It is frightening to envision fanatics of both sides running to their legally purchased weaponry.

Guns: Background Comments and a Bit of Psychology

It is reasonable to state that the United States was born in violence and has experienced few prolonged periods of peace. Historically, as the country grew, it simply pushed out those who resisted the expansion of its borders, and if it wanted land owned by a neighboring country, it took that as well. Guns, not pens, were the agents of enforcement.

To look at World War II and claim an undiluted good guy label for the USA, one must be careful – there are multiple twists and turns in that saga. For one, returning minority veterans faced the same racism that previously had been evident. Secondly, the country’s laudable accomplishment in saving lives emboldened it to pursue escapades which might have been appropriately anti-the growth of Communism were it not for the attendant destruction of good relationships throughout Central and South America. Fundamentally, as it appeared so-called domestic boundary lines had become fixed, the USA had basically redefined the term “boundary” to include non-proximate nations which were not abiding by the American view of how they should manage their affairs.

This boundary mentality is evident today, and it has little to do with people crossing into the country without securing legal status or having a path to do so. It has to do with an existential crisis in the American psyche, the gun representing psychological displacement, a way to shoot away all the myriad ills and dissatisfactions residing in one’s head.

“I used to know who I was, who we were – the ones with that good guy hat. Now I have no idea – the onslaught of change is overwhelming: social media, gender identity, cancel culture, technology, the future of the planet, an open border. Yipes, I could go on. My church is no longer a source of mental refreshment and grounding in values. My neighbors are anonymous. My job is not secure. My wife is depressed. Our kids are gone, scattered throughout the country. Like everybody, we buy stuff from a multi-billionaire with a half-billion dollar yacht, and he gets it from a Communist country.

Hello, is there any wonder that I do not know which end is up, that the clarity of suicide moves from “I would never consider such a thing” to a thought process.

But wait, my home is my castle and my gun is my birthright. The physical structure, and the ideas embodied in my concept of family and correct values – this combination is now my boundary and my gun is my means of enforcement. Step across my threshold, tell me my values are destructive to the alleged aspirations of my country – I can blow you away and call it self-defense.

And it’s not just me in this fight between my ears, my wife just bought her first gun. We’ll be ready.”

Analogously, in South Africa, the white community was fearful that the end of apartheid would mean a bloodbath, freed blacks wreaking revenge. When this did not happen, there was a troubling realization within the white head, “you mean, those negatives we used to say about blacks were inaccurate — which means my concept of self is destroyed  – which means I was the bad guy!”

Is the American fear problem, the one which leads to everybody having a gun, more what is between our ears than documentable reality?

On the other hand, what is incontrovertible is that the USA is second to Yemen in the category of mass killings (defined as four deaths or more).  As a frame of comparison, when Serbia, a country one might associate with periodic troubles in Eastern Europe, had two mass shootings last year, they were its first such events in seven years. To get a gun there, you must be over 18, have a reason, take a training course, and have a background check that includes a medical exam and interviews with neighbors and relatives. Police visit the house to see that safe storage is available. A history of crime, mental disorders, or substance abuse disqualifies an applicant.

Since unfortunately we are a long way from having Serbian-type requirements, it should be good news that Vice-President Kamala Harris has announced the creation of the National Extreme Risk Protection Order Resource Center to assist in the implementation of much-needed Red Flag laws.

Of more immediate impact is that under a recently passed rule, the Bureau of Alcohol, Tobacco, Firearms and Explosives will require any business that sells guns for profit to register as a federally licensed firearms dealer. It is estimated this could add 23,000 federal dealers to the 80,000 already regulated. Before, unlicensed gun dealers were able to sell at gun shows without any of the background checks associated with a federal license.

New Liability Ground for Guns

*Both the father (James Crumbley) and the mother (Jennifer Crumbley) of the 15 year-old gunman (Ethan Crumbley) who killed four people and injured seven others at a high school in Oxford, Michigan were found guilty of unintentional manslaughter and sentenced to 10-15 years in prison.

The father had bought a gun for Ethan, then “failed to secure it or tell schools officials about it the day of the shooting after their son made troubling drawings on a math sheet.” Those drawings included his early Christmas present, a 9mm handgun; the words “blood everywhere,” “the thoughts won’t stop,” and “help me.” The school suggested mental health services be sought; it gave them 48 hours to do so. The boy left the meeting and began firing. He is now in prison without the possibility of parole.

The mother had claimed she was unaware of their son’s problems and had made a statement on the stand that she “wouldn’t do anything differently as a parent.”

This case broke new legal ground in its use of a manslaughter charge. Previous, somewhat analogous situations had resulted in reckless conduct charges, minor time in jail and a couple of years on probation. The non-profit organization named Brady: United against Gun Violence has filed suit against the dealer, Arms Shooting Goods, who sold the gun used in this case. The parents of the victims have filed suit against the school and Arms.

Extended liability exposure for those not directly involved in an incident is at the core of this legal situation, as is true of multiple non-gun cases to be delineated below.

Note: Michigan now has a law requiring gun owners to lock their firearms when a minor is likely to be on the premises, and it requires guns involved in buyback programs to be physically destroyed; heretofore, they were not, and the parts thereof reappeared, ready to be reassembled into guns.

*In Virginia, a former school principal has been indicted on “eight felony counts of child abuse and neglect” that led to a six year-old boy shooting his teacher in 2023. The allegation is that the principal ignored repeated complaints from teachers about the boy, including a request for action when a classmate that day indicated the boy had a gun. The mother of the boy already had been sentenced to two years in prison for felony child neglect. The wounded teacher is suing the school.

*In Lewiston, Maine, the mass shooting of 18 people on October 25, 2023 has resulted in a variety of findings, including that law enforcement should have moved to take the gunman into custody prior to the shooting based on his “increasingly erratic and paranoid behavior,” his prior need for mental health evaluation, and his ownership of guns. Complicating this analysis is the discovery of brain damage to the gunman resulting from his years as a grenade instructor in the Army.

In contrast to Michigan, where there was a clear line for prosecutors to follow in making their manslaughter case, it appears that in Maine the culpable parties are the proverbial “all of the above.” However, not only will it be interesting to see if specific changes regarding gun reform are implemented, the phrase “law enforcement should have moved ….” is an invitation to a lawsuit.

*“I want to emphasize that this was a senseless act of violence perpetrated on purely innocent people,” (Ottawa, Canada police chief Eric) Stubbs said. “I know our whole community is shocked and mourning this event.” In the USA, we use the same verbiage. What is unusual is that this was the area’s worst mass killing in over thirty years; the individual stabbed to death a mother and her four children plus one other individual. Whether there is legal liability should be tracked, given that Canada’s homicide rate is 2.3 per 100,000 people, one-third that of the USA.

Following the verdicts in Michigan and Virginia and the new indictment in Virginia, it will be informative to analyze, and chronicle, the depth of culpability in each of the mass shooting incidents (and other criminal acts involving guns as well). The ground has been broken for liability – pertinent to a person or persons or company not directly involved — to be assessed, without touching the constitutional third rail.

P.S. Tennessee will permit teachers to carry a concealed gun if they have 40 hours of training, a background check, and a psychological evaluation. Is this the best “reform” we can do? Insane!

Ground-breaking Liability Excluding Guns

The world of liability is seeing new entrants. The algorithm goes from existing business practice to liability to monetary damages to a change in business practice. This is the world within which the unique position of gun ownership exists. Can its constitutional heritage and protection continue in an environment where extended liability is being attached to a lengthening list of transgressions.

*CVS and other drug retailers did not know whether those pills they dispense were being used for a legitimate medical reason; nonetheless they had to be aware that oxycontin was being overprescribed, including on stolen scrip pads. The companies were found liable for their role in the country’s drug addiction problem and had to pay large fines.

Relatedly, in an attempt to disrupt the illicit drug supply chain, especially for the lethal fentanyl, the DEA is going after on-line retailers who sell $4,000 presses that can produce 5,000 pills an hour which look like legitimate drugs. The first settlement involved eBay, which paid $59 million. It is estimated that 70% of the 100,000 drug deaths in 2023 involved fentanyl.

*Heretofore, the NCAA made a boatload of money from college sports. The athletes got nothing except a free college education. Now these performers are getting paid, through NIL relationships, often funded by wealthy alumni. The next step is that of unionization. The Dartmouth basketball team, none of whom are on athletic scholarships (not allowed in the Ivy League) has voted to join SEIU Local 560. Graduate students and library workers at other institutions have opted for unions.

With unionization in non-traditional areas comes legal activity; admittedly the liability exposure is less clear unless blatantly illegal practices are deployed by those resisting the union.

*In another heretofore situation, legacy admissions to universities have been an accepted, and highly lucrative, business practice. Now, a few states have banned said policy. One can envision a lawyer putting together a class action suit on behalf of students denied admission because legacy applicants had been accepted to a point that all the theoretically open seats had been filled.

*It took decades but finally it happened: the National Association of Realtors, under intense pressure, settled a lawsuit that accused it of conspiracy to fix prices, aka the c.6% commission-splitting structure which had long been in place. Inclusive of payments made by individual real estate firms, the total is reportedly over $940 million. Given the liability attendant to the prior years of millions of people overpaying because of the price-fixing, additional lawsuits are underway.

*The bartender does not keep count of how many drinks a person imbibes, nor does he calculate the customer’s absorption rate based on their height and weight.  But his sense of whether a boozer has had too many is now subject to legal exposure, liability for subsequent actions by the customer.

Speculative Liability Situations

*Everybody knows that data are being collected on them from every piece of technology in their possession. What they don’t know in many cases is with whom that information is shared. The catch-all phrase on the paperwork signed by the customer, “information may be shared with third parties,” covers the waterfront, simultaneously saying something and saying nothing. An individual named Romeo Chicco recently pursued a violation of privacy action against General Motors; its app on Chicco’s car captured micro information about the driver, not simply about the operation of the car. This information was shared by GM with a data broker who sold the information to Chicco’s auto insurance company.

After disclosure that this was a widespread company policy earning GM millions, it opted to terminate its relationship with the data broker. Perhaps it will be liability from privacy infringement elsewhere in the transactional world that will bring change in the collection and use of data.

*A group of nuns has purchased stock in the gun maker, Smith and Wesson. Using their newfound voice, they have charged the company with putting its value at risk by an over-the-top macho marketing approach which basically implies that you are not a man if you do not own a gun. They are trying to get Smith and Wesson to change its ways and forestall possible liability exposure.

*In the area of franchise relationships, there is an attempt by the National Labor Relations Board to make big franchisers “responsible for the conditions of workers they had not hired directly.”

This was rejected in court as being too broad. The CEO of the U.S. Chamber of Commerce said the NLRB rule was “related to workplaces they don’t control and workers they don’t actually employ.”

The liability issue in the franchise industry will resurface. The words used by the above CEO, with a couple of inconsequential changes, are the same as those used by Purdue Pharma, CVS, et al regarding drug addiction; those firms were found liable and paid large settlement amounts.

*Victims of the late Jeffrey Epstein are suing his financial advisors, essentially forcing them to answer the “who knew what and when” questions and their role in assisting Epstein to engage in criminal behavior. This is a uniquely interesting extension of liability exposure.

*A psychiatrist ran up a $400,000 gambling debt, aided and abetted by the relevant company eagerly soliciting her to continue betting. It is easy to ridicule the fact that it was a psychiatrist who was so irrational; it is less easy to dismiss the marketing message behind the extreme skew in the company’s business: they disclosed that 0.5% of their bettors were responsible for 70% of their revenues. Does a marketing approach which disproportionately takes advantage of targeted individuals have liability?

*In Switzerland, “a group of 2,000 elderly women brought a case claiming their government isn’t doing enough to fight climate change, putting them at risk of death from heat waves.” The European Court of Human Rights ruled 16-1 in their favor. Lawyers around the world are toasting the court.

A Unique Liability Situation

*How long will social media companies be able to hide behind Section 230 of the Communication Decency Act — which says online platforms are not liable for what is posted by third parties — as they offer their platforms to bad actors of all kinds. This is a question that is receiving additional attention because of social media’s purported role in facilitating the sale of illegal drugs, a hot button which resonates in a different way than mass shootings or the data on how many teenage suicides have links to, e.g., Facebook/Instagram material.

The U.S. Surgeon General himself has warned that social media could pose a profound risk of harm to young people’s mental health. The line from social media to reduced interpersonal contact to mental health challenges to increased suicide rates seems documentable, hopefully leading to some type of compromise other than, e.g., Facebook’s periodic bland assurances that it is trying hard to establish algorithms pertinent to user protection.

Banning TikTok gets a bigger hearing because it is a Chinese company; however, half of the American population are users of its platform so it is unclear how anti-TikTok legislation would square with minimal restrictions on US-based social media companies.

A young woman named Larissa May (reportedly formerly a heavy user of social media) is not waiting for social media to mend their ways. She has started a non-profit, Half the Story, “to repair the damage caused by … TikTok and Instagram.” It has a curriculum designed to engage students in the process of dealing with the allure of “infinite scroll, push notifications, and videos that play automatically,” the three biggest features that keep kids hooked.

Recently, the most publicized non-politician pushing for change in the world of social media is author Jonathan Haidt, “The Anxious Generation: How the Great Rewiring of Childhood is Causing an Epidemic of Mental Illness.” He advocates these specific reforms:

No smartphone before high school; basic phones are okay

No social media before 16; let the brains develop first

Schools should be phone-free zones: store them in student lockers

Bring back unsupervised play; develop social skills, become self-governing

Admittedly, rich settlements in the USA and Europe already have happened in the unique liability area of social media. Unfortunately, the financial position of many of these companies is such that they can write big checks while barely tweaking the algorithms and business practices which culminated in the liability in the first place.

Demonstrated Historical Liability Situations

Many of the liability situations described above are indirectly a consequence of inadequate or absent underlying legislation at the federal level. Part of the challenge involved in the newer liability interpretations, other than potentially constituting an end-run around complete deference to the original wording of the constitution, will be a continuous debate about where liability lies when negative outcomes ensue from situations that include multiple layers of responsibility, whether recognized or not.

Gun reform specifically may evolve less slowly than before as courts in different jurisdictions deliver verdicts stemming not from individual government rulings and appeals thereof, but from the liability attached to a business enterprise. Moreover, in somewhat parallel fashion, parents and educators should become more aware of potential liability given recent legal decisions.

Of course, liability cases per se are not new. What is noteworthy is that traditional cases continue while new ones are being added; there is no replacement effect. These are but a few examples:

*In Morris County, New Jersey, a whistleblower’s complaints about the state’s ownership and management of a psychiatric hospital have been ignored. Presumably the families of those who have been harmed (sometimes fatally) by the lack of a response to reported unsafe conditions will be filing lawsuits. Liability is clear.

*In 2017, John Barnett, a long-time Boeing employee complained that Boeing’s 787 Dreamliner was being rushed to production, that safety was being compromised. In return, Boeing slandered him and Barnett sued. The case was headed to court in 2024; when a Dreamliner had a “technical issue,” that thankfully only resulted in minor injuries, Barnett reportedly committed suicide.

In 2024, two more Boeing whistleblowers have gone public with complaints about Dreamliner production and safety compliance. This comes on the heels of numerous recent small incidents that have brought attention to the practices of both Boeing and several of its airline customers. It was not that long ago that two Boeing crashes (different model) resulted in a large number of deaths and major liability settlements by Boeing.

P.S. Boeing recently promoted a non-engineer to head its commercial aircraft division, changed its incentive compensation structure, and began the search for a new CEO. Meanwhile, it continues to lose business to rival Airbus, partly because the FAA has slowed Boeing’s production schedule in order to ensure that tightened quality standards are being met.

*Years back, pesticides used to control weeds had the unfortunate side effect of poisoning the product’s users, a piece of information not adequately disclosed as a risk in its marketing literature. Major liability resulted, money was paid, product formulations and marketing materials were changed. Normal process you might say.

*When Tesla’s marketing message oversold the capabilities of its Autopilot software, it could be claimed this is normal with new technological developments. Some would argue that the liability attached to the company’s aggressiveness will be substantial. The National Highway Traffic Safety Administration says there have been “at least 14 fatalities, several dozen injuries and 467 crashes.”

One case has been settled, the amount not disclosed.

*Norfolk Southern’s derailment in 2023 of a train carrying hazardous materials cost it a $600 million settlement with the affected town of East Palestine, Ohio. A lawsuit by the state’s attorney-general remains open; it alleges harm to the environment. Again, a normal unfolding of a liability situation.

*With the multi-decade demise of domestic manufacturing, union membership in the USA plummeted. Fast forward to current times, from Starbucks to Amazon to Disneyland to the more traditional auto industry target, there is increased interest in unionization. This now includes the historically non-union South, e.g., Tennessee, where the UAW recently won an election at a Volkswagen plant.

As a general comment, the use of courts (and violence, however defined) has long been a characteristic of corporations resisting unionization. Litigation historically has been dominated by suits against unfair actions by employers, both prior to and during unionization campaigns. Settlements are contractual wage increases and improved benefits.

The bottom line: 2023 saw more successful union elections than in any year since 2000.

C. The aggregate responses to my Gun Survey have been posted. These are my responses.

 (1) What is the feeling among foreign countries toward the USA gun situation?

*they are stunned at what we accept in terms of deaths by guns.

(2) Historical: the right to bear arms

*individuals with three felonies on their record should not be allowed to purchase any guns.

*individuals with repeated violations of domestic violence orders should not have guns.

*individuals should be subject to a thorough background check and required to undergo training.

(3) Contemporary School-based Strategies

*None of the options were appropriate.

(4) The Gun Business

*dealers who sell guns disproportionately involved in crimes should have their licenses revoked.

*if drug retailers have been found liable for their participation in overprescribing opioids and thus contributing to addiction, gun dealers should have comparable legal exposure.

(5) Why the USA is different

*the country was born in violence and has had few periods of time when violence was absent.

*it is more concerned with individual rights than are its counterparts.

*it desires to maintain a historical right even as other historical situations have been rectified.

(6) Regarding your current community, would you rather:

*have neighbors you trust, regardless of their gun ownership.

(7) With respect to age:

*there should be a minimum age of 21.

*until the head of a household is at least 30, there should be a limit of one gun per household.

(8) The political reaction to mass shootings is:

*a belief that governments can do nothing about the situation.

*a repeat of the saying that “guns do not kill people, only people kill people.”

*a flood of opinion editorials from reform advocates.

(9) The local reaction to mass shootings at schools is:

*initial or renewed interest in gun reform.

*receipt of an influx of money from elsewhere.

*greater attention to the need for mental health counselors.

*disbelief that it could happen in their community.

*outrage at the inability of law enforcement to minimize the damage, i.e., the body count.

*debate over the particulars of a suitable memorial for the victims.

(10) Regarding a hypothetical community with half the median income of your current area and with half the population being minority, would you rather:

*the composition of the neighborhood has no bearing on my attitude toward guns.

(11) The second Amendment has communal language as well as individual rights.

The former reads: “a well-regulated militia being necessary to the security of a free state.”

In reading this, what is your reaction:

*it provides precedent for laws regarding open carry that enhance security for all.

(12) There were 45,000 gun deaths in 2022. Which is the correct breakdown:

*54% suicides, 43% homicides, 1% accidents, 2% law enforcement

(13) Assume a Red Flag Situation, in which an individual discloses to their psychiatrist they have on-going anger issues and are thinking of shooting somebody. The psychiatrist:

*does nothing.  (This should be changed)

*tells the police.

*asks the patient if there are guns in their house

Assume the police have received the information above. They:

*do nothing. (This should be changed)

*tell a judge.

*look at the patient’s criminal record and see if there is reasonable cause to arrest them.

*refer the matter to an existing committee of mental health and police professionals.

Assume the judge has received the information above. They:

*do nothing. (This should be changed)

*issue a warrant for the individual’s arrest. (Perhaps not arrest but confiscation of weapons)

*issue a ruling empowering the police to remove weapons from the patient’s house.

*issue a ruling that puts the patient on a “cannot buy guns” list sent to every gun dealer in the state.

(14) The number of guns in circulation is (in millions)

*415

(15) In 2005, the federal ban on selling AR-15 type assault weapons ended. Since then, how many of these guns have been sold (in millions)

*25

(16) Which line represents gun ownership rate per 100 population for USA, Yemen, Serbia:

*121, 53, 39

(17) A parent:

*Has responsibility for any child of mine up to age 25 who is living in my house

*if my child, whether living with me or not, is making violent threats, I must report it

*if my child, whether living with me or not, is seeing a mental health professional and making violent threats, I must report it

*If my child is making violent threats and there are guns in the house, I must report it

kuu9900(18) Concerning rising suicide rates and guns:

*greater availability of guns has meant more suicides.