The Smallest Minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. – Ayn Rand
I Believe this Would be Difficult to Giftwrap
I’m not going to ask how he found it, but apparently Target is branching out into the “personal services” industry. One of the guys at AR15.com shares this gift idea for Christmas.
You cannot imagine how glad I am that there is “No Picture Available.”
I Understand There Are Some Good Deals Near the Airforce Base…
The range I’m an officer of recently received a complaint letter from a nearby resident. Bear in mind that the Tucson Rifle Club , established in 1896, has been at its present location since 1965. Here’s the letter, edited to remove the name and other identifying information, but spelling and grammatical errors are verbatim:
This isn’t a safety issue, but it is a Bill of Rights Issue concerning my “persute of life, liberty, and happiness”. Every morning the first thing I do is, go outside in my yard to pray. My church is my yard, but I’ve become tired, over the years, of my prayers having the sound of gunfire accompanying me. Somehow, praying for peace while listening to gunshots just isn’t compatible, and for 10 yrs. I’ve listened 7 days a week, 363 days a year, from 7:00am to 5pm, and I very tired of having peace and quiet only 2 days a year. My husband is also fed up with having to fall asleep with a pillow over his head to block out the gunfire every morning when he gets home from work.
How I’d like to resolve this annoyance is to close the club 2 days a week, one of them being Sunday, and to shorten the number of hours you’re open from 10 hours a day to 7 hours a day by opening 3 hours later each day. Also, there might be funding available for construction of sound reduction barriers that you could apply for. Another possibility might be to include representation from (the nearby neighborhood) on the board of directors.
We’re neighbors, and all good neighbors talk problems out in a friendly environment comming to a resolution of the problem that leaves everyone happy. That’s how we do things in out neighborhood. Won’t you be good neighbors?
Um, no.
You moved to your neighborhood ten years ago. The range was already there, and you knew about it. The range has a membership of about a thousand families, and we’re “persuing” our rights to life, liberty, happiness and arms. Many of us can only get to the range on weekends, so closing on Sundays is right out. Most of us want to do our shooting as early as possible, which under Game and Fish regulation is 7:00 AM. That’s before the wind kicks up and before it starts getting really hot in the summer, so no, we won’t be restricting hours either.
And for many of us, the range is our church.
Want a neighborhood occupant on the board? Join the club, meet the minimum requirements, and get elected.
Every one of your suggestions requires us to acquiesce to your desires, while requiring nothing of you that you haven’t already yielded for ten years. That’s not compromise, that’s dictation of terms. Hardly a “resolution that leaves everyone happy.”
Here’s an idea: MOVE. You can find a place that’s quieter, and you can leave us the hell alone! That would make everybody happy! Pima County recently greatly expanded the Davis-Monthan Airforce Base noise impact zone. Perhaps you could find a nice little house there and then tell the U.S. Government that you’d like them to curtail their operating hours?
Condi for President!
This meme has been making the rounds for quite a while – Cheney steps down as VP “for health reasons” and Bush nominates Condoleeza Rice for the position, which makes her the heir-apparent and sets her up to run in 2008 against the Hildebeast. I think Kevin Drum is worried.
I’m all for it. Here’s just one more reason. Dave Kopel reminds us that Ms. Rice is an enthusiastic supporter of the right to arms:
Condoleeza Rice has described herself as “a Second Amendment absolutist.” An article in the Montgomery Advertiser explains why. She grew up in Birmingham, Alabama, where her father, a Presbyterian minister, was a strong advocate of civil rights:
Rice has said memories of Birmingham’s racial turmoil shaped some of her core values.
During the bombings of the summer of 1963, her father and other neighborhood men guarded the streets at night to keep white vigilantes at bay. Rice said her staunch defense of gun rights comes from those days. She has argued that if the guns her father and neighbors carried had been registered, they could have been confiscated by the authorities, leaving the black community defenseless.
And probably would have been. Once you understand that the State is not responsible for your defense – in fact, may be inimical towards you, you better grasp the wisdom of the Founders who wanted to ensure that The People remained armed. Nothing teaches like experience.
Run, Condi! Run!
UPDATE: It seems that the inestimable Eric S. Raymond has considered the meme, too.
So Condi Rice is going to replace Colin Powell as Secretary of State. I have to think this means she’s being groomed for the Republican ticket in 2008.
Well, I hope so anyway. I know very little about her, but I’ve discovered that I really want to have a ringside seat on the farcical hijinks that will certainly ensue if the Republicans run a black woman for President, or even Veep.
Just so my position is clear, it is quite unlikely I’d vote for her. As in, not unless the Libertarian candidate is a werewolf or something. It’s just that the thought of Democratic strategists having shit fits over the hemhorraging black vote greatly amuses me. The panic and confusion that would reign on the New York Times editorial page as their political-correctness bias clashes (for once) with their anti-Republican bias would be good for many guffaws. I might actually listen to NPR just to hear them choking. In general, just watching the machinery of smug left-wing duckspeak seize up and damage itself on Condi’s blackness would be delicious.
Watching Republican racist/nativist types hold their gorges down for the sake of party unity would be entertaining too, but probably much less so as that type seems rather rare these days. In lieu of that, I’d just have to content myself with the screams of insenate rage that would issue from the neo-Nazis at Stormfront. Why, they might be almost as angry as the “Bush=Hitler” crew over at Democratic Underground. With any luck we might actually get to watch a few of the vicious morons on both sites die of thundering apoplexy.
Truly, what’s not to like?
There’s more. Read it all.
The difference between Eric and me? I’d vote for her. Happily.
Fifty? Fifty!
Everybody swing on by Kim du Toit’s and wish him a happy birthday! And don’t forget to pick up a hundred rounds of ammo before the weekend is done to celebrate National Ammo Day Week, too. If you’re so inclined, toss him a little B-day cash to help offset the cost of his present to himself, a very nice FN-49 semi-auto rifle.
Remember Hale DeMar?
In other good news out of Illinois, the Illinois legislature overrode Gov. Rod Blagojevich’s veto and enacted a law that exempts people who use a firearm in self-defense from being prosecuted if they violate local anti-gun ordinances in the process. According to the Pioneer Press Online:
Senate Bill 2165, which creates a self-defense exception to local gun bans, passed the House of Representatives on Tuesday afternoon with a vote of 85 to 30, with one “present” vote. It needed 70 votes to override the veto and came close to the 90 votes which first passed it out of the chamber in May.
State Reps. Elizabeth Coulson, R-17th, Julie Hamos, D-18th and Karen May, D-58th, voted against the override, supporting the concerns of area villages officials who believe the law would undermine local gun control measures.
Hamos, of Evanston, said the legislation was a backdoor attempt by the National Rifle Association to usurp a municipality’s right to establish its own gun laws.
“This is really about local control,” she said. “And the Illinois legislature took that away from them.”
In the Senate, the veto override passed Nov. 9 with a 40-18 vote. Sen. Jeffrey Schoenberg, D-9th, continued his opposition to the bill.
Yes, the evil NRA controls even the Illinois legislature! So, as I said, remember Hale DeMar?
It became known as the DeMar bill after a Wilmette homeowner, Hale DeMar, shot and wounded a burglar in his home late last year. DeMar was not charged in the shooting itself, but Wilmette moved to enforce a 1989 ordinance banning handguns, which could result in the loss of his two handguns and a fine.
That case is still pending in court, though DeMar faced a legal setback when a court ruled against a constitutional challenge of the law.
Schoenberg said gun rights groups have long worked to eliminate or curtail local gun control, and were able to cast DeMar as a hero who was unjustly punished.
“The NRA spotted an opening and they ran with it. So as a result of this one case where the charges were dropped, a whole sweeping change in state law is about to take effect,” Schoenberg said.
“I spoke forcefully against the bill, on a variety of counts, but unfortunately, the die was cast. I’m deeply disturbed at the outcome,” he said. “It certainly doesn’t reflect the overwhelming majority view in my community and I believe in most other communities in the state.”
So Mr. Schoenberg apparently isn’t deeply disturbed by representative democracy? Read those numbers again – 85 to 30 in the House, 40-18 in the Senate. Well, obviously those 125 legislators are all in the pocket of the eeeeevil NRA.
So what’s the reaction of the municipalities?
(Wilmette Village President Nancy) Canafax said the Village Board may look at ways the Wilmette ordinance can be rewritten and strengthened against challenges under the new law.
“We haven’t talked about that specifically, only very generally. Yes, there probably is something we can do, but as to what, we haven’t taken that step,” she said.
Canafax said she is concerned that the law’s self-defense exception would be used in situations much different then DeMar’s, and that it could effectively prevent villages from ever enforcing a gun ban. Gun owners could claim self-defense in a variety of situations, and might take more aggressive action than they otherwise would.
“My fear on the bill as far as it impacts that ordinance is it actually encourages use of the gun,” Canafax said.
And that’s the idiot argument always made when the law restores the citizen’s right to the use of a firearm for self-defense. It’s the same old “BLOOD IN THE STREETS!” argument – that never happens. Will these people ever learn that laws that prohibit the law-abiding from effectively defending themselves are counter-productive? Read what Ms. Canafax implied: the gun ban was designed to keep people from using firearms. But it only succeeds in disarming the ones who obey the law. Hale DeMar wasn’t a threat to anybody – except a burglar. I’m glad he decided that the protection of himself and his family was more important than obeying Wilmette’s idiot ordinance, and I’m glad the Illinois legislature recognizes the injustice done to him.
I congratulate the residents of Illinois for this and the recent Illinois Supreme Court decisions mentioned below.
More Good News!
Bill Whittle’s SILENT AMERICA: Essays from a democracy at war will be available soon!
The 6×9 paperback came to a mere 232 pages; each volume must be delivered by forklift. I plan to send this softcover out to a few well-known folks, and with luck, I’ll be able to get one of them to write an introduction, which I will then put in a commemorative hardcover, along with some biographical notes and other goodies. But right now I’m completely focused on getting out a paperback for the stocking stuffers.
Now, looks like PayPal purchases can start as soon as this weekend or very early next week. It should be available on Ingram and Barnes and Noble by December 6th, but won’t get to Amazon until the end of December. Paypal copies will ship within 2-4 days of the order being received, and there will be priority shipping if you so desire. The price is $29.95, and then whatever shipping options you choose. It will all be finalized in the next day or so.
Yeaaaa!
I think I’ll be introducing a lot of people to Bill’s writing this Christmas.
Better news?
And when this is out of the way, we start with the book I’ve been wanting to do for a year now: a citizenship book, one that’s more timeless and universal, less about Republicans and Democrats and Liberals and Conservatives — and especially, less about Iraq — and more about the values and perspectives a good citizen needs for the 21st century if we are to hand this proud country on to the next generation in better shape than we found it.
I’m willing to wait.
OK, I’m Ready for the Shoot on Saturday
I have 260 rounds of .30-06 loaded (200 neck-sized only for the 1917 Enfield, 60 Korean milsurp for the Garand), 500 rounds for the AR-15, 200 rounds for the Kimber .45, 150 rounds of 9×18 for the Mak, a couple hundred rounds of .22 for the Single-Six and the 10/22.
I’ve also got 100 rounds of 5.7×28 and 60 rounds of 5.45×39. One of the guys coming to the shoot has a full-auto FN P90 submachine gun and a Krinkov. He’ll let you shoot his guns if you bring your own commercial ammo. That’s one magazine apiece for my wife and me.
I’ve got five 9″x11″x1″ AR500 swingers (thirty-two pounds each!), and my old standby odd-shaped freestanding 3/8″ AR400 plate targets. My swinger stands will be finished tomorrow. All I’ve got to do is load all the steel up tomorrow evening and all the guns and ammo Saturday morning and head out.
This is going to be fun!
How do you Convert a Gun-Phobe? Put One in Her Hands!
Zendo Deb of .357 Magnum points to this OUTSTANDING Slate piece on a woman who takes up shooting as part of her job of, as she describes it, “human guinea pig.” Emily Yoffe takes up challenges, and then reports on the results. As the invitation at the bottom of her column puts it,
Is there something you’ve always wanted to do but were too scared or embarrassed to try? Ask the Human Guinea Pig to do it for you.
This time it was shooting. Her piece is subtitled “How I Learned to Love Guns.” It begins thus:
I pressed the Beretta AL391 Urika deep into my shoulder and against my cheek, as if gripping a shotgun stock were as natural as holding the strap of my purse. I said, “Pull,” in a firm yet casual way, to convey that, sure I drove here in a Volvo, and the radio in the Volvo is tuned to NPR, but I’m actually the kind of woman who loves the smell of cordite in my hair. Two weeks ago I was so ignorant about firearms that I thought shotguns discharged bullets and I didn’t know the difference between a revolver and a semiautomatic. But here I was shooting trap, in which clay disks, the moving target simulating a bird in flight, are released at unpredictable angles from a small trap house. As the “pigeon” flew on my command, I swung the shotgun to follow its arc and pulled the trigger. My instructor called out, “Oh, yeah!”
“What happened?” I asked.
“You hit it,” he said.
If you’re going to get an introduction to shooting, clay pigeons is a damned fine way to do it. Instant gratification when you hit!
I’m not going to reproduce the whole piece, but I do want to hit some of the more interesting highlights. Like this one:
So anathema are guns among my friends that when one learned I was doing this piece, he opened his wallet, silently pulled out an NRA membership card, then (after I recovered from the sight) asked me not to spread it around lest his son be kicked out of nursery school.
Want to know what it’s like to be a second-class citizen? Own a gun in an extremely Blue state or area.
Then there’s this:
Before I slinked back to my now-embarrassing Volvo, I stopped to watch two men shooting. They were fast and fluid and the targets shattered one after another. I am happily married, but I found myself thinking these two—whose faces I couldn’t even make out—were awfully attractive. It brought to mind a newspaper article from a few years back. After the death of Hugh Culverhouse Sr., the owner of the Tampa Bay Buccaneers, his various entanglements caused his widow to sue his estate. During the court proceedings, it was revealed that Culverhouse had an affair with the wife of a now-deceased television anchor. Culverhouse’s son testified that the caretaker of his father’s ranch told him that the caretaker would escort the anchor’s wife and Culverhouse “into the woods and they would shoot guns and basically have sex.” I thought the article was hilarious at the time. Now I understood.
Yet gun-phobes tell us that we have guns to compensate for a deficiency in our *cough* equipment.
Not hardly.
How about this?
After my trap-shooting triumph with the shotgun, Ricardo was going to teach me to shoot pistols. They terrified me.
—
A few days later I met Ricardo at the pistol range at the bucolic Izaak Walton League in Damascus, Md. Along to record the event was Dianna Douglas, a producer from NPR. I had asked her if she had any experience with guns, thinking she might want to do some shooting. “No, no, no, no, no,” she replied with a laugh. “I’m not going to want to shoot any guns. No, no, no, no, no.”
I stepped up to the line and looked at the target—a paper plate with a 3-inch black bull’s-eye—Ricardo had stapled to a pole 21 feet away. A few days before I had taken a yoga class, and during the breathing I envisioned myself aligning the gun’s front and back sights and slowly squeezing the trigger. Now I held the revolver, cocked the hammer, and shot. I hit the plate just southeast of dead center. Ricardo told me to keep going, and I start to punch a hole in the target. Maybe I could teach yoga at the NRA!
I switched to a Beretta 92FS 9 mm Parabellum semiautomatic and again I punched a decent hole. Ricardo then let me try his Sig Sauer P226 9 mm with the crimson trace laser-grip. With this gun, when you put your finger on the trigger a red laser dot illuminates your target. Ricardo had me load the magazine with 15 bullets. (From watching movies, I had thought magazines came already loaded, which I realized was like thinking candles came already lit.) After a few shots around the center of the plate, Ricardo told me to get in a faster rhythm, and I found myself hitting with greater accuracy. “Go ahead, paper plate, make my day.”
After I emptied the semi, Dianna came up hesitantly. “Umm, how hard would it be for me to umm, shoot a few rounds?” she asked Ricardo. I said, “I told you so.”
“Well, you look like such a badass doing it, I want to try,” she explained.
Yes, yes, yes, yes, YES! Another convert! See?
Do us all a favor, take someone shooting this weekend who’s never tried it before. Be low-pressure. Make it safe and fun for them. Chances are, next thing you know they’ll be out buying a gun for themselves. And maybe they’ll join the NRA.
UPDATE 11/19: HAH! I scooped Instapundit. Well, Zendo Deb did, actually, but Glenn picked one of the same excerpts I did. Still no Instalanche, though.
Dammit.
The Illinois Supreme Court announced two interrelated decisions today, both on gun manufacturer and distributor liability when the product they manufacture and sell is used criminally. Both decisions were unanimous. Both decisions threw out the lawsuits against the manufacturers and distributors. Both decisions have some interesting points. The first, City of Chicago v. Beretta contains the following:
Plaintiffs’ specific allegation against the named dealer defendants is that they “sell firearms even when they know or should know that the firearms will be used or possessed illegally in Chicago.” This allegation is supported by assertions that dealers know some of their customers are residents of Chicago and that it is illegal for those customers to use or possess these weapons in the city; that dealers make sales even when the words or behavior of the buyers indicate an intention to use the weapon illegally; that dealers sell handguns designed to be carried as concealed weapons, even though state law prohibits the carrying of concealed weapons; and that dealers make multiple sales to individuals whom they know or should know intend to resell the guns in the city. The second amended complaint identifies the dealer defendants as part of a “core group of irresponsible dealers” who attract the business of gunrunners and other criminals, as reflected by ATF trace data. The complaint also includes factual assertions regarding numerous undercover “sting” operations carried out by police officers at the various dealer defendants’ stores. Plaintiffs further assert that the dealers’ practices “have caused a large underground market for illegal firearms to flourish in the City of Chicago,” and that they “know that many of the firearms they sell are used or possessed illegally, and put into the underground market.” Finally, the complaint states that the dealers’ “actions and omissions in selling firearms to Chicago residents that are illegal in the City of Chicago unreasonably facilitate violations of City ordinances, and contribute to physical harm, fear and inconvenience to Chicago residents, and are injurious to the public health and safety of Chicago residents.”
—
We have found no Illinois case recognizing a public right to be free from the threat that members of the public may commit crimes against individuals.
And you won’t, because that would raise the specter of making the State liable for not protecting individual citizens – and that won’t happen.
Leaving aside for a moment the costs incurred by plaintiffs, which we determine, below, are not recoverable as damages, we query whether the public right asserted by plaintiffs is merely an assertion, on behalf of the entire community, of the individual right not to be assaulted.
Understand the difference here: You have a right not to be assaulted. From that right comes the power of the State to arrest and punish such an assailant. It’s not a carte blanc to allow the State to do whatever it feels necessary to prevent you from being assaulted, it’s a recognition that actually assaulting someone is a criminal act. The plaintiffs here are trying to stretch the law, and the court recognizes the enormous problem inherent in that Pandora’s Box, and they illustrate it here:
By posing this question, we do not intend to minimize the very real problem of violent crime and the difficult tasks facing law enforcement and other public officials. Nor do we intend to dismiss the concerns of citizens who live in areas where gun crimes are particularly frequent. Rather, we are reluctant to state that there is a public right to be free from the threat that some individuals may use an otherwise legal product (be it a gun, liquor, a car, a cell phone, or some other instrumentality) in a manner that may create a risk of harm to another.
For example, the purchase and consumption of alcohol by adults is legal, while driving under the influence is a crime. If there is public right to be free from the threat that others may use a lawful product to break the law, that right would include the right to drive upon the highways, free from the risk of injury posed by drunk drivers. This public right to safe passage on the highways would provide the basis for public nuisance claims against brewers and distillers, distributing companies, and proprietors of bars, taverns, liquor stores, and restaurants with liquor licenses, all of whom could be said to contribute to an interference with the public right.
But they shut that line of reasoning down, hard and emphatically
We conclude that there is no authority for the unprecedented expansion of the concept of public rights to encompass the right asserted by plaintiffs. Further, because we conclude, below, that plaintiffs’ claim does not meet all of the required elements of a public nuisance action, we need not decide whether to break new ground by creating such precedent.
—
Plaintiffs concede that their public nuisance claim, based on the alleged effects of defendants’ lawful manufacture and sale of firearms outside the city and the county, would extend public nuisance liability further than it has been applied in the past. Nevertheless, they, and the amici in support of their position, argue that extending the doctrine of public nuisance in this manner is a proper exercise of this court’s inherent authority to develop the common law.
And they cite previous case law that argues against this line of reasoning:
Cases from other jurisdictions in which reviewing courts have rejected public nuisance claims against the gun industry offer more analysis of this question. In Spitzer v. Sturm, Ruger & Co., a New York appellate court observed:
“[G]iving a green light to a common-law public nuisance cause of action today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.
“All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets, and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born.” Spitzer, 309 A.D.2d at 96, 761 N.Y.S.2d at 196.
Citing an earlier case rejecting a theory of negligent marketing against a gun manufacturer, the Spitzer court observed that ” ‘judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another.’ ” This concern, the court, noted, “is common to both negligent marketing and public nuisance claims.”
Similarly, a federal court of appeals, applying New Jersey law, concluded that:
“Whatever the precise scope of public nuisance law in New Jersey may be, no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the stream of commerce. On the contrary, the courts have enforced the boundary between the well-developed body of product liability law and public nuisance law. Otherwise, if public nuisance law were permitted to encompass product liability, nuisance law ‘would become a monster that would devour in one gulp the entire law of tort,’ [citation]. If defective products are not a public nuisance as a matter of law, then the non-defective, lawful products at issue in this case cannot be a nuisance without straining the law to absurdity.”
In addition, a Florida appellate court affirmed the trial court’s dismissal of Miami-Dade County’s action against firearms manufacturers, trade associations, and retailers, saying:
“The County’s request that the trial court use its injunctive powers to mandate the redesign of firearms and declare that the appellees’ business methods create a public nuisance, is an attempt to regulate firearms and ammunition through the medium of the judiciary.”
A Florida statute expressly reserves the field of regulation of firearms and ammunition to the state legislature (Fla. Stat. §790.33 (1999)). In Illinois, cities and counties are free to impose gun regulations within certain limits (see 720 ILCS 5/47-5 (West 2002)). Nevertheless, we agree with defendants that the Florida court’s observation is worthy of consideration.
Defendants’ position is that the legislative and executive branches of state and federal government are better suited than this court to address the societal costs that flow from the illegal use of handguns, particularly given that the commercial activity at issue is already highly regulated. Further, defendants argue that plaintiffs’ “frustration” at their inability to effectively regulate gun possession in the city cannot be “alleviated through litigation as the judiciary is not empowered to ‘enact’ regulatory measures in the guise of injunctive relief. The power to legislate belongs not to the judicial branch of government, but to the legislative branch.”
And that, ladies and gentlemen, is a resounding legal slapdown.
More:
In the present case, the question is whether dealer defendants, given the nature of the product they sell, their awareness of Chicago ordinances regarding firearms, and their knowledge that some of their customers are Chicago residents, could reasonably foresee that the guns they lawfully sell would be illegally taken into the city in such numbers and used in such a manner that they create a public nuisance.
We conclude not. We agree with the conclusion of the appellate division of the supreme court of New York in Spitzer: “defendants’ lawful commercial activity, having been followed by harm to person and property caused directly and principally by the criminal activity of intervening third parties, may not be considered a proximate cause of such harm.”
This result is consistent with other Illinois cases in which a defendant’s conduct was found to be so remote from the resulting injury that legal cause was not established.
And here’s an example case:
Although we have found no reported cases in which a nuisance claim has been dismissed at this stage for lack of legal cause, the case of Watson v. Enterprise Leasing Co., 325 Ill. App. 3d 914 (2001), in which the theory of liability was negligent entrustment, offers some interesting parallels to the present case. The defendant was a merchant who furnished a condition by which the injury was made possible. Specifically, Enterprise leased a vehicle to one party with the knowledge that it was likely to be driven by one or more third parties. The lessee entrusted the vehicle to a friend, from whom it was taken by yet another person. Eventually, an intoxicated minor took the keys from that person and caused an accident resulting in the death of his passenger. Affirming the trial court’s grant of summary judgment for the defendant, the appellate court noted that the element of cause in fact had been satisfied. Absent the leasing of a car to the first individual, the death would not have occurred-at least not in an accident involving this particular vehicle. The intoxicated driver would either not have driven at all and there would have been no accident, or he would have obtained the keys to another vehicle and the accident would have occurred, but would not have involved the defendant’s vehicle. Thus, the appellate court concluded, the “crux of the issue” was “legal cause, which revolves around foreseeability.” The driver who caused the fatal injury, the court noted, was at least two steps removed from the person to whom Enterprise directly entrusted the car. In addition, the accident was caused by the criminal act of a third party. These events were not reasonably foreseeable. Although the defendant furnished a condition that made the resulting injury possible, the creation of this condition was not the legal cause of the fatal accident because the defendant’s conduct was too remote to constitute legal cause. As the appellate court observed, to “impose foresight on defendant under the particular circumstances present in this case would render it liable for anyone who drove the car, thus making it strictly liable.”
The parallels to the present case are obvious. Dealer defendants, like the car rental company in Watson, are in the business of providing a lawful product that may be used in unlawful ways, causing injury or death. Both the possession and use of firearms and the driving of motor vehicles are highly regulated by state law. In the present case, the existence of the alleged nuisance in the city of Chicago is several times removed from the initial sale of individual weapons by these defendants, just as the intoxicated driver was at least twice-removed from the defendant in Watson.
The appellate court in Watson found it unreasonable to expect the car rental company to foresee a single accident caused by an intoxicated teenage driver who took the keys to the car without the permission of the person who had rented the car. In the present case, the claim of negligent entrustment has been dismissed and its dismissal has not been appealed. Thus, we are not faced with the question of whether a gun dealer might be held liable for negligently entrusting a weapon to an individual buyer when it is foreseeable that the buyer might allow a third party to possess or use the gun illegally. Instead, plaintiffs argue that it is foreseeable to these defendants that the aggregate effect of numerous sales transactions occurring over time and in multiple different locations operated by businesses with no ties to each other will result in the creation of a public nuisance in another city.
Here’s the part I like, because they spell out their thinking explicitly:
Finally, although these dealers’ sales of weapons create a condition that makes the eventual harm possible by putting these weapons in private hands, it is not at all clear that the condition would cease to exist even if these particular defendants entirely ceased selling firearms. Just as in Watson, in which the intoxicated teenager managed to gain access to a set of car keys, those who intend to illegally possess and use firearms in the city of Chicago would still be able to obtain them. The manufacture and sale of firearms is legal. There is a market for these products that is served by thousands of dealers all across the country. The sales that would otherwise have been made by these dealers would be made by others. Ultimately, there would be a shift in market share between these dealers and others and, perhaps, an increase in the price of illegal weapons “on the street” as those intent on illegal gun ownership had to go further afield in search of weapons to buy.
—
Plaintiffs and the amici supporting their position advocate expansion of the common law of public nuisance to encompass their novel claim. They anticipate our reluctance to expand nuisance liability in an area highly regulated by both state and federal law and urge that it is not only within our inherent authority, but it is also our duty, to construe the common law to aid a local government’s effort to protect its citizens from gun violence.
To do so, we would have had to decide each of the issues raised in this appeal in plaintiffs’ favor. In effect, we would have had to resolve every “close call” in favor of creating an entirely new species of public nuisance liability. Instead, after careful consideration, we conclude that plaintiffs have not stated a claim for public nuisance. Even granting, arguendo, that a public right has been infringed, we conclude that their assertions of negligent conduct are not supported by any recognized duty on the part of the manufacturer and distributor defendants and that, under the Gilmore rule (Gilmore, 261 Ill. App. 3d at 661), their allegations of intentional conduct are insufficient for public nuisance liability as a matter of law. In addition, we hold that proximate cause cannot be established as to the dealer defendants because the claimed harm is the aggregate result of numerous unforeseeable intervening criminal acts by third parties not under defendants’ control.
And here’s the kicker:
Any change of this magnitude in the law affecting a highly regulated industry must be the work of the legislature, brought about by the political process, not the work of the courts. In response to the suggestion of amici that we are abdicating our responsibility to declare the common law, we point to the virtue of judicial restraint.
We, therefore, reverse the judgment of the appellate court and affirm the judgment of the circuit court, which properly granted defendants’ motion to dismiss.
Pretty good decision. (I’ve excised some of the legal references and selectively edited for better readability. If you’re legally inclined, go to the link and read the decision in whole.)
The second decision released today was Young v. Bryco Arms, and it leaned on today’s City of Chicago decision pretty heavily, since the arguments were essentially identical. I won’t quote from it (however much I’d like to,) since this piece is long enough as it is, but I want you to consider something: Yes, the gun-rights side “won” and most people would expect that the gun-ban forces would be seething to have lost in their favorite forum, the courts. To, in fact, have been slapped down – and hard – in that forum, for trying to legislate through the judiciary.
But that’s not the aim. Consider how much it has cost Beretta et al. to fight this all the way to the Illinois Supreme Court. While the gun-ban forces have been using TAX DOLLARS. The Brady Bunch didn’t file this suit – the CITY OF CHICAGO did. In Young I’m certain that the lawyers were probably acting pro bono with their expenses picked up by Brady, at most.
The purpose of these lawsuits isn’t actually to get the court to make new law – they’d love it if that happened, but I don’t think even they are that delusional. No, what they’re trying to do is bleed the gun manufacturers and especially their distributors to death. They love the appeals process. That means it’s going to be more expensive!
This is why the gun-rights forces tried so hard to get the Protection of Lawful Commerce in Arms Act passed in the last session of Congress. That’s the bill that got killed after Feinstain attached a renewal of the “Assault Weapons Ban” to it. As UCLA law professor Eugene Volokh explained last year, and the Illinois Supreme Court echoed in City of Chicago:
“Why does the gun industry deserve special protection?” asked Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, about the bill that would limit gun manufacturer tort liability, which it seems, might be enacted by Congress. Because the gun industry is under special attack.
If when someone drunk on Coors crashes his Mustang into me, I were able to successfully sue Coors and Ford for selling their products knowing that they cause death, or for recklessly and wantonly refusing to (for instance) install breathalyzer ignition overrides that would (maybe) help prevent drunk driving, then I’d see the bill as being about “special protection” (though then I’d just want it broadened to cars and alcohol, too). But right now, the bill is simply aimed at making sure that the tort liability system treats guns like other lawful but dangerous products.
We need to get that bill passed. Overlawyered reports that its chances of getting through the Senate this time are considerably better:
Gun pre-emption looking good
Last time up, Sen. Dianne Feinstein’s poison-pill amendment passed 52-47, dooming the urgently needed bill although it enjoyed the support on paper of a wide majority of Senators. Now five Democrats among those 52 votes are going to be gone. “Conservative Republicans, all of whom were endorsed by the NRA, will replace all five Democrats.” (Jim Snyder, “Gun lobby, GOP have lawsuits in their crosshairs”, The Hill, Nov. 17).
Unfortunately, Sen. Feinstien was not one of the replaced.
This time we’ll need to push and push hard to kill whatever “poison pill” the gun-grabbers can come up with in their attempt to derail this legislation. Because if we don’t, depend on it – the lawsuits will just keep coming.
Here’s an Outstanding Testimonial to Product Quality
From the New Bedford, MA Standard-Times back in October:
Rusty old gem finds a new life
A professional hunter in Southern Austria inadvertently performed the longest, most realistic, environmental test on a rifle scope in history. A Kahles (pronounced kah-less) scope, lost in the high mountain region of the Austrian Alps in the late ’70s was found recently in technically perfect working condition.
In September, 1977, on a chamois stalk, a jaegermeister (professional hunter) from Carinthia climbed to the top of “Kometeralpe”, a 2,500-meter picturesque mountain. After shooting a chamois with his Mannlicher Luxus 6.5×57 topped with a Kahles Helia 6×42 riflescope, the jaegermeister rested his firearm against a boulder and ascended to where the game was taken.
After field dressing his animal, he returned to the spot where he believed his rifle to be. Unfortunately, the hunter spent the entire afternoon searching the mountainside for his gear but didn’t find it. In the ensuing days and weeks, he regularly returned to the area to search for his rifle but was unsuccessful.
That was one EXPENSIVE chamois!
Months, years, and a quarter century passed. High above the timberline, rifle and scope rested upright against the boulder — being abused by the harsh elements of nature at this high elevation. Summer heat and dust, followed by strong storms and heavy showers of ice and snow tested its durability.
Almost three decades later, Hannes, a young jaegermeister from Obervellach, a small village in the Austrian Alps, ascended the same mountain, stalking a chamois. After making a good shot, Hannes proceeded down the slope to his animal.
To his amazement, next to the chamois and just barely visible, leaning against a gray stone boulder, was an old rifle. The stock was rotten and bleached by the elements, and all of the steel parts were rusted throughout — a sad resemblance of what once was a hunter’s pride.
The rifle was in poor, unusable condition, but when Hannes looked through the scope he couldn’t believe his eyes: the image quality was like that of his new modern scope, with the crosshair standing out crisp and clear against a sharp, brilliant and extremely bright image. The steel surfaces were rusty, yet all of the aluminum parts were unharmed. The mechanical parts, including both elevation and windage adjustments still worked perfectly, and even after all those years in the most extreme of elements, the scope remained waterproof.
After contacting the original owner, Kahles purchased this “environmentally tested” rifle and scope. X-ray analysis showed that the rifle was still loaded and cocked but on safety (shame on the jaegermeister — it should’ve been unloaded). The action was locked up by corrosion and was made moveable only after burning the powder in the chamber.
This rifle and scope, a testament to the durability of Kahles optics, will be displayed at future major trade shows. This scope still remains in its original condition after being discovered in the high mountain regions of Austria.
Kahles, founded in 1898, is the oldest rifle scope manufacturer in the world.
Kahles scopes are mucho dinero, but apparently worth the price!