Introduction

According to the Second Amendment to the Constitution of the United States, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”. After a long period of legal uncertainty, the Supreme Court of the United States decided in 2008 that the language of the Second Amendment protects an individual’s right to bear arms, not just that of a militia [1]. The Court subsequently ruled in 2010 that the Second Amendment also applies to the states as well as the federal government [2]. These decisions have circumscribed the ability of jurisdictions to rein in the proliferation of firearms in the general population. From a public health point of view, it becomes particularly important to consider what measures can be taken to limit the risk associated with the large number of firearms in the community.

Federal 2005 Legislation

These Supreme Court decisions came on the heels of the 2005 federal legislation known as the “Protection of Lawful Commerce in Arms Act” (PLCAA). The PLCAA has as one of its explicit purposes.

“To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended” [3].

The PLCAA has survived some challenges in the courts [4], but the Supreme Court of the United States did not have occasion to address it in either its 2008 or 2010 cases noted above.

Is the Federal Legislation Unconstitutional?

I suggest that given the Supreme Court’s broad reading of the Second Amendment, there is also an opportunity to invoke the same reasoning to at least partly rein in the epidemic of firearms injuries and death. In particular, it is reasonable to suggest that such legislation actually violates the Second Amendment because it restricts the ability of states to ensure that their citizenry have firearms that are used lawfully in personal self-defense (or, in theory at least, in militia service) rather than diverted to illegal use. Illegal use of the gun, including by another family member during a domestic quarrel, poses a risk of harm to the gun owner that can eclipse any benefit from self-defense against a home intruder [5], the home gun ownership purpose discussed by the Supreme Court.

The federal government clearly has powers to regulate interstate commerce, but such powers are not unlimited. The reference by the Second Amendment to the militia evinces the concern of that provision for the states and their people, as contrasted with the rights of the federal government in its unquestioned jurisdiction over the armed forces of the United States, or its powers over interstate commerce.

Intent of the Framers of the United States Constitution

The concern for the quality of firearms and other military supplies was a familiar topic to the framers of the United States Constitution, and before that to the revolutionary colonists. A 1775 draft resolution of the Pennsylvania Committee of Safety proposed to the Continental Congress that “good Muskets” and other military supplies should be imported “and to allow a generous Price for the same according to their Goodness…”[6].

The statesman, scientist, and inventor Benjamin Franklin considered not just importation of firearms, but also how to improve their local manufacture by use of division of labor, in terms similar to those his contemporary Adam Smith would use [7]. Franklin noted in a letter of August 1775:

I am glad to hear that the Gunsmith’s Business goes on so well with you. We make great Progress in it here; but the Price is high. If we would acquire that Manufacture in Perfection, it must be by assuring the Workmen of a large Demand, for a Number of Years, and at a Price certain. Then they will be encourag’d to bring up Apprentices for different Parts of the Work, and also to make Tools and Machines for facilitating and expediting it, such as Suages for Lock Plates and Cocks, Mills for grinding and boring the Barrels, & c. Those bred to Parts of the Work only, will dispatch more and do it better. And then I am confident Arms may be made as good and as cheap in America as in any Part of the World. I intend therefore to propose to our Assembly to give that Encouragement here, by engaging to take 2000 Muskets per Annum for 10 years, at a good Price, which I doubt not will in that time establish the Manufacture among us; and an Arsenal with 20,000 good Firelocks in it, will be no bad thing for the Colony. As the Numbers of People are continually increasing, we can never be long overstock’d with the Article of Arms. And I wish the Congress may think fit to recommend the same Project to the other Colonies [8].

Franklin was later to serve among the framers of the U.S. Constitution, and his comments may help illuminate his contemporaries’ understanding of the role of the militia and its arms.

Applying the Intent of the Framers Today

In the succeeding two and a half centuries, of course, technology has substantially advanced. A state-of-the-art product of long ago, for example, might often have failed to function properly, perhaps even causing injury to its owner. In the intervening years advances in technology will often have permitted the manufacture of a much safer product, and manufacture now of the same product with the omission of those safety features would arguably render the product defective.

The Supreme Court decisions on the Second Amendment have focused heavily on the use by private citizens of firearms for home defense. It seems a reasonable extension of that approach to argue that the citizens have a right to acquire firearms that serve that purpose. A corollary would be that it is unconstitutional government action for the federal government or a state to impede the use of product liability litigation in support of that right. The case for unconstitutionality should be especially clear when a statute places restrictions on firearms product liability lawsuits that it does not place on other kinds of product liability lawsuits.

Research for example has already shown that firearms, stored in the home for use by the homeowner for self-defense against intruders, often are used by others and produce injury to innocent occupants of the home. From a public health point of view, use of electronic devices to prevent firing of the gun by anyone other than the owner would serve to limit the dangerousness of keeping a firearm in the home. From a Second Amendment point of view, such an electronic device would arguably make the firearm more effectively directed to its constitutionally protected purpose as enunciated by the Supreme Court. As a matter of both public health policy and law, therefore, there is a strong argument that a firearm lacking such safety features was made defectively.

It should be noted that the Supreme Court’s 2008 decision found that even a gun lock requirement was too restrictive of home self-defense, because it would delay use of the weapon. In order to survive Second Amendment challenges, gun safety advocates might best emphasize other safety features that would prevent use of the weapons by others yet could still allow rapid use by the owner. These could include for example fingerprint identifiers or other electronic devices that allow firing only by the owner.

Allowing product liability lawsuits against firearms manufacturers does not directly limit the right of people to purchase and bear the arms that they manufacture. Rather, it gives the purchaser and bearer of those firearms an ability to sue the manufacturer for example if the weapon fails to operate properly and instead injures the bearer. Allowing product liability suits against the manufacturer does not limit in any way the rights of the gun owner to keep and bear arms or any other right; rather it gives them an additional right to bring a lawsuit.

In its 2008 case, the Supreme Court majority opinion asserts in passing that when the Second Amendment refers to a well-regulated militia, “the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.” I would argue that elements of such discipline would be that the bearer of the arms can actually use their weapon, that the gun bearer remains in control of their weapon, and that the weapon is not turned against the owner. If a weapon is manufactured with features that impede its disciplined use, the threat of product liability lawsuits against the manufacturer provide an incentive for them to improve their product.

In a standing army, the task of inspecting the quality of purchased weaponry might fall to a quartermaster or similar government official. In a citizen militia, such as seems contemplated by the Supreme Court in its reading of the Second Amendment, the individual members of the people will be most knowledgeable of the weapons they bear. If they find those weapons to be defective, and they bring lawsuits, the effect may be to encourage manufacturers to make nondefective weapons for their fellow citizens too.

Conclusion

In summary, from a public health perspective in the United States, firearms are a major source of injury and death. The Supreme Court of the United States, in two recent decisions interpreting the Second Amendment of the United States Constitution, has ensured that firearms will nevertheless continue to be widely available in the home for self-defense purposes. Since elimination of the harm from firearms in the home is not achievable, public health efforts need to focus on the goal of harm minimization. I believe that a potential strategy in support of that goal, in light of recent Supreme Court jurisprudence, is to argue that making firearms safer is both consistent with and supportive of constitutional rights.