The state attorneys general and trial lawyers behind the temporarily derailed $516 billion tobacco settlement have opened up a Pandora's Box of legal tricks. Long after the tobacco matter is in the past, these maneuvers could continue to be used against other unwitting industries that have nothing to do with cigarettes.
Much like states led the charge on tobacco, cities are spearheading the assault on the next target for a huge, amorphous product-liability suit--firearms companies. Chicago and Philadelphia are already threatening to sue gun makers. "The key is to get a lawsuit whereby the manufacturer is held liable, just like the smoking industry is held liable," said Chicago Mayor Richard Daley. Philadelphia Mayor Edward Rendell wants gun manufacturers to reimburse the city for all of its health-care expenses and police salaries that arise from gun violence.
These are not the only lawsuits facing gun makers. Last week the MacArthur Justice Center at the University of Chicago filed a suit accusing gun companies of knowingly aiding criminals in the commission of crimes. The case, filed on behalf of the estates of three dead people, claims that the gun companies "specifically geared" their weapons to make them attractive to gang members. Among the offending characteristics listed are low price, easy concealability, corrosion resistance and high firepower. The fact that an industry is being sued for making affordable products shows how far the liability-litigation madness has gone.
As in the tobacco cases, the antigun plaintiffs acknowledge only the costs and not the benefits of the products. However, the case against gun manufacturers will be harder to make. The states' class-action suits against tobacco emphasized what the tobacco companies knew about their products, not whether smokers themselves knew the risks of smoking. The plaintiffs are essentially accusing the tobacco companies of fraud--not fully revealing the deadliness of their product. This strategy wouldn't work against the gun makers since everyone knows that guns can kill.
Tobacco companies had a response to the states' claim that smoking cost taxpayers Medicaid money to pay for tobacco-related illnesses. When smokers get sick, they tend to die relatively quickly. While states must bear these health-care costs sooner, since smokers die younger than nonsmokers, the expenses are offset by shorter illnesses--indeed, by smokers' shorter lives. And once the long-term savings to state pension programs are taken into account, smoking actually saves states money.
Tobacco companies were never comfortable with this morbid argument and judges weren't sympathetic to it. This permitted the state attorneys general to make fantastical accounting arguments in which they cited the costs, but not the benefits, of smoking to state coffers.
But simply claiming that murders are committed with guns would not be enough for the cities to win. Unlike tobacco companies, gun makers also have powerful arguments about the benefits of gun ownership. Criminals tend to attack victims who they perceive as weak--and guns serve as an important deterrent against crime.
Americans use guns defensively about 2.5 million times a year, and 98% of the time merely brandishing the weapon is sufficient to stop an attack. Resistance with a gun is also the safest course of action when confronted by a criminal. For example, the chances of serious injury from an attack are 2.5 times greater for women offering no resistance than for those resisting with a gun. And guns help to bridge the strength differential between male criminals and their female victims, putting women on a more equal footing with men in terms of personal safety.
In my own recent research on gun ownership rates across states over time, I found that higher gun ownership rates are associated with lower crime rates. Further, poor people in the highest-crime areas benefit the most from gun ownership. Lawsuits against gun makers could raise the price of firearms, which would most severely reduce gun ownership among the law-abiding, much-victimized poor.
The cities' suits put Messrs. Daley and Rendell at odds with the wisdom of the very people whose job it is to keep the streets safe. The police cannot feasibly protect everybody all the time. Perhaps this is why police officers are sympathetic to law-abiding citizens owning guns. A 1996 survey of 15,000 chiefs of police and sheriffs conducted by the National Association of Chiefs of Police found that 93% of them thought law-abiding citizens should be able to purchase guns for self defense.
The cities would also face a credibility problem with their potential lawsuits: The towns themselves pay for police officers to carry guns. This makes it harder for them to deny that being armed has substantial benefits.
As for the MacArthur Justice Center, its charges represent the dangerous combination of counting costs but not benefits in legal arguments and of using courts to make public policy. Lightweight, concealable guns may help criminals, but they also help protect law-abiding citizens in the 43 states that allow concealed handguns. States issuing the most carry permits have had the largest drops in violent crime. Criminals may value guns with firepower, but so do potential victims who want to stop an attacker.
Perhaps the next prey for the local government and trial lawyers will be automobile companies. After all, the state bears some health care costs from car accidents and has to pay highway patrolmen to clean up the crashes.
Every product has illegitimate uses. Once legitimate products get assailed because they have a well-know downside, its hard to see where the process will stop.
Mr. Lott, a fellow at the University of Chicago Law School, is the author of "More Guns, Less Crime" (University of Chicago Press, 1998).
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