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Instead of Criminalizing Individuals, Let’s Take Down the Gun Industry

The gun industry has legal immunity from liability. Congress should change that.

A man inspects a firearm in an exhibit hall at the Kay Bailey Hutchison Convention Center during the NRA's annual convention on May 6, 2018, in Dallas, Texas.

It is an odd feature of U.S. political life that after mass slaughters like those in El Paso and Dayton last week, liberal gun control advocates focus their arguments overwhelmingly on regulating the guns individuals can buy, instead of on destroying the economic power of gun manufacturers. In doing so, liberals engage the fight on the grounds of Second Amendment zealots who frame the argument with the maxim, “Guns don’t kill people, people kill people.” So long as there are massively wealthy gun manufacturers who generate billions in profits, efforts to regulate the sales process for guns and the criminalization of gun ownership will be a never-ending rear-guard action — and one that results in more and more criminalization of people of color. Background checks, narrow limitations on particular gun mechanisms, and loophole closures will perennially be the subject of attacks by well-financed lobbyists and advocacy groups like the NRA, and gun-control groups will be eternally sticking their fingers into newly sprung regulatory leaks.

If guns are flooding our streets — and there is no doubt they are, as there are currently more guns than people in the U.S. — the problem cannot be “people,” but capital: the industry manufacturing the guns. Any attempt at a gun-control policy aimed at purchasers is almost certainly going to burden mostly working-class people and in particular, working-class people of color. This has historically been the case — gun control legislation has some roots in “Black Codes” passed after the Civil War in southern states, and gained new life in the late 1960s when the Black Panthers began openly carrying firearms as protection from hostile police forces.

Still today, people of color face disproportionate sentencing and conviction for gun possession crimes. According to the United States Sentencing Commission, Black people were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group. Latinx offenders comprised the next largest group. More regulations means more police power to enforce them, and given the over-policing of communities of color, a policy regime intent on getting “guns off the street” by punishing gun owners is simply going to aggravate the already critical over-policing of those communities. It shouldn’t be forgotten that every year more people are killed by police than by mass shooters. As the NRA’s hypocrisy after the killing of Philando Castile for having a legally-permitted firearm painfully illustrated, the state and civil society is all too happy to apply a racist policing standard to gun ownership.

Ultimately, it will not even work. As with every other area of social ill, it is the material interest underlying the problem that has to be addressed, not just the observable phenomenon. In a sense, “gun-rights” advocates have a point when they say that criminalizing guns will not stop “criminals” from getting guns When you criminalize something (whether it be alcohol, drugs or guns), you simply ensure that a secondary market will proliferate. Anybody who buys a gun on that market instantly becomes a criminal — but that doesn’t mean they’ll stop buying guns. People will buy guns one way or another, and the massively wealthy gun industry will fight to protect its markets, whether legal or underground. The industry will keep producing as many guns as people will buy.

There are currently 120 guns per 100 civilians in the U.S., topping the global ranking. In second place is a literal open warzone, Yemen. The number of guns manufactured in the United States between 2006 and 2016 more than tripled, from 3.5 million to 11.5 million. Between 2006 and 2019, according to an analysis by Mother Jones, there were almost 80 mass shootings, with more and more shootings each year. As there are more mass shootings getting more and more attention, the gun industry pumps out more and more guns. And why not? What do they have to lose? Gun manufacturers face no liability for feeding the plain public health crisis. They know that their guns are falling into the hands of abusers, perpetrators and fascists — they simply don’t care, in the same way that the producers of Oxycontin know full well they are supplying a secondary market that fuels opioid addiction. While gun manufacturers rake in profits, individuals, and in particular people of color, pay the price for the dangerous situation on our streets created by the gun industry’s never-slaked thirst for riches.

Instead of passing ephemeral regulations that just prolong a never-ending legislative war, true gun control should go after the industry that mobilizes its immense wealth and social power to protect itself. Attack the problem at its source. One way to do this is to make gun manufacturers liable for the public health problem they created, and allow lawsuits by individuals, cities and states against those manufacturers. There is one major reform that, rather than boosting police power that aims itself at communities of color, would target the industry fueling the violence: ending the unprecedented immunity from liability the gun industry gets by repealing the Protection of Lawful Commerce in Arms Act (PLCAA). Allowing private individuals and public bodies to sue the gun manufacturers for their clearly reckless practices would create a structural reason for manufacturers to stop their astronomical and increasing production of guns, and to institute supply-chain controls themselves to make sure guns cannot get into the wrong hands. The associated per-unit cost of each gun would increase and the profit margins on gun sales would plummet.

Don’t unleash the police to conduct more stop and frisk; unleash the plaintiffs’ lawyers and attorneys general against the gun industry. It’s time to invert the current material incentive to keep producing more and more guns.

Without a plan to critically weaken the industry that actually creates the problem, gun control advocates will forever be outmatched in the political struggle to address the problem — and all too often, communities of color will suffer for it.

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