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Although Congress and the majority of statelegislatures have resisted enacting draconian guncontrol laws, the courts are the final bulwark insafeguarding our constitutional right to keepand bear arms. Yet the courts of late have beenthe scene of unprecedented attacks on that rightas gun control advocates have used the judiciaryto make an end-run around the legislativeprocess. Meritless litigation brought by govern-ment plaintiffs in multiple jurisdictions are justpart of a scheme to force gun makers to adoptpolicies that legislatures have wisely rejected.Moreover, the suits are used by politicians toreward their allies—private attorneys, many ofwhom are major campaign contributors—withlucrative contingency fee contracts.Meanwhile, many of the same politicians haveexploited a few recent tragedies to promote theiranti-gun agenda. But gun controls haven’tworked and more controls won’t help. In fact,many of the recommended regulations will makematters worse by stripping law-abiding citizensof their most effective means of self-defense.Violence in America is due not to the availabilityof guns but to social pathologies—illegitimacy,dysfunctional schools, and drug and alcoholabuse. Historically, more gun laws have gonehand in hand with an explosion of violent crime.Only during the past decade—with vigorous lawenforcement, a booming economy, and an olderpopulation—have we seen dramatic reductionsin violence, coupled with a record number ofguns in circulation.Before we compromise constitutional rightsexpressly recognized in the Second Amendment,we ought to be sure of three things: first, thatwe’ve identified the real problem; second, thatwe’ve pinpointed its cause; and, third, that ourremedy is no more extensive than necessary to fixthe problem. The spreading litigation againstgun makers fails all three tests as do the latestgun control proposals. Guns do not increase vio-lence; they reduce violence. Banning or regulat-ing firearms will not eliminate the underlyingpathologies. And a less invasive remedy alreadyexists: enforce existing laws.
Pistol Whipped 
Baseless Lawsuits, Foolish Laws 
by Robert A. Levy
 _____________________________________________________________________________________________________
Robert A. Levy issenior fellow in constitutional studiesat the Cato Institute.
Executive Summary
No. 400May 9, 2001
 
Introduction
Gun makers, engulfed by a torrent of liti-gation from dozens of cities, were threatenedby the Clinton administration during thesummer of 1999 with additional claims,from more than three thousand public hous-ing authorities, coordinated by the U.S.Department of Housing and UrbanDevelopment.
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Under President Bush, fur-ther action by HUD will almost certainly beshelved. Still, ongoing city- and state-spon-sored lawsuits could destroy the firearmsindustry, with profound implications for therule of law and the Constitution. The gov-ernment’s resort to litigation as a tactic ofintimidation and extortion will have destruc-tive consequences extending far beyond a sin-gle industry.Here’s how the current avalanche of law-suits against gun makers unfolded. In June1997 the giant tobacco companies first cavedin to the state Medicaid recovery suits.Cigarette manufacturers, besieged by claimsin dozens of states and sued under pervertedrules of tort law that eliminated any oppor-tunity to defend themselves,
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decided to set-tle—that is, to bribe the politicians instead ofgoing to war against a punitive money grab.That capitulation—the surrender of theindustry’s right to market a perfectly legalproduct—predictably spawned a new roundof litigation. This time, gun makers were pit-ted against the combined resources of bil-lionaire trial lawyers, city mayors, countyexecutives, a state attorney general, and theClinton administration.In bullying gun makers, the plaintiffshave included three corrosive ingredients,carried over from the tobacco wars, in theirlitigation formula: First, they have sued inmultiple jurisdictions, thereby escalating theindustry’s legal costs. Second, they haveemployed contingency fee lawyers, many ofwhom are major political donors. Third, theyhave tried to use the judicial branch to bypassthe legislature.To begin, I will examine that new litiga-tion paradigm. Then I’ll digress briefly toexplore Second Amendment concerns. Next,I will analyze the suits threatened by publichousing authorities, the claims by some citiesthat gun makers are responsible for “negli-gent marketing,” the allegation by othercities that guns are an “unreasonably danger-ous” and “defective” product, and the falloutfrom the Smith & Wesson settlement. Thatwill be followed by an assessment of the datathat allegedly link gun injuries to gun owner-ship and, finally, a look at the various pro-posals that purport to remedy gun violence.
Government-SponsoredTort Suits: The NewParadigm
When public officials prosecute lawbreak-ers, those officials are fulfilling a legitimaterole of government. Most of the time, thatprosecutorial role is unobjectionable, and itis often commendable. But the latest roundsof litigation—tobacco, then guns—are differ-ent in three respects, each of which threatensthe rule of law.First, coordinated actions by multiplegovernment entities can impose enormouslegal fees on defendants. Such actions havebeen used to extort money notwithstandingthe fact that the underlying case is withoutmerit. Just listen to former Philadelphiamayor Edward G. Rendell, a Democrat, call-ing for dozens of cities to file concurrentsuits against gun makers: They “don’t havethe deep pockets of the tobacco industry,”Rendell explained, and multiple lawsuits“could bring them to the negotiating table alot sooner.”
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Never mind that the suits arebaseless. We’re dealing not with law but withextortion parading as law.One effective way to stop such thievery isto implement a “government pays” rule forlegal fees when a governmental unit is thelosing plaintiff in a civil case. In the criminalsphere, defendants are already entitled tocourt-appointed counsel if needed; they’realso protected by the requirement for proof
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We’re dealing notwith law but withextortion parad-ing as law.
 
beyond reasonable doubt and by the Fifthand Sixth Amendments to the Constitution.No corresponding safeguards against abu-sive public-sector litigation exist in civil cases.By limiting the rule to cases involving gov-ernment plaintiffs, access to the courts is pre-served for less-affluent, private plaintiffsseeking redress of legitimate grievances. Butdefendants in government suits will be ableto resist meritless cases that are brought bythe state solely to ratchet up the pressure fora large financial settlement.“Government pays” becomes ever moreurgent with the recent emergence of an insidi-ous relationship between the plaintiffs’ bar andsome government officials. That relationship—common to tobacco and gun litigation—is asecond major threat to the rule of law.Both rounds of litigation were concoctedby a handful of private attorneys who enteredinto contingency fee contracts with the gov-ernment. In effect, members of the private barwere hired as government subcontractors, butwith a huge financial share in the outcome.That’s not a problem, says Rendell. Heannounced that cities were suing gun makersonly for improved safety features and changesin distribution practices, not monetary dam-ages. Yet one day after Rendell’s disclaimer,Miami and Bridgeport filed their suits, seek-ing hundreds of millions of dollars in dam-ages.
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New Orleans asked for damages
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and sodid Chicago (in fact, $433 million).
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Theclaims include not only medical costs associat-ed with gun violence but also the costs ofpolice protection, emergency services, policeovertime and pensions, courts, prisons, loss ofpopulation, cleaning the streets of blood,lower property values, even lost tax revenuefrom reduced worker productivity
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 —pluspunitive damages. And nearly all of the citieshave solicited private lawyers to work for acontingency fee based on those damages.So if money isn’t the primary goal, therewill be a lot of attorneys working for free.Maybe that’s what they deserve. After all, thegun suits aren’t intended to go to trial. Infact, HUD’s threat, on top of the city andcounty claims, was meant to promote a set-tlement, not a trial. No doubt, with a pid-dling $1.5 billion in annual revenues, gunmakers are not going to yield the same trea-sure trove as the tobacco behemoths whoseworldwide sales are $300 billion. But that’snot fatal, because the real goal of the triallawyers is to chalk up one more victory, thusdemonstrating to future wealthy defendantsthat groundless legal theories are goodenough when the coercive power of multiplegovernment entities is arrayed against anunpopular industry.When a private lawyer subcontracts his ser-vices to the government, he bears the sameresponsibility as a government lawyer. He is apublic servant beholden to all citizens, includ-ing the defendant, and his overriding objectiveis to seek justice. Imagine a state attorney paida contingency fee for each indictment that hesecures, or state troopers paid per speedingticket. The potential for corruption is enor-mous. Still, the states in their tobacco suitsdoled out multibillion dollar contracts to pri-vate counsel—not pursuant to per hour feeagreements, which might occasionally be jus-tified to acquire unique outside competenceor experience, but as contingency fees, a sure-fire catalyst for abuse of power. And those con-tracts were awarded without competitive bid-ding to lawyers who often bankrolled statepolitical campaigns.
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Government is the single entity autho-rized, in narrowly defined circumstances, towield coercive power against private citizens.When government functions as prosecutoror plaintiff in a legal proceeding in which italso dispenses punishment, adequate safe-guards against state misbehavior are essen-tial. That is why in civil litigation we rely pri-marily on private remedies with redresssought by, and for the benefit of, the injuredparty and not the state. As the SupremeCourt cautioned more than 60 years ago, anattorney for the state “is the representativenot of an ordinary party to a controversy, butof a sovereignty whose obligation to governimpartially is as compelling as its obligationto govern at all.”
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Put bluntly, contingency fee contracts
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Contracts wereawarded withoutcompetitive bid-ding to lawyerswho oftenbankrolled statepolitical cam-paigns.
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