Why the body count hasn't slowed down America's gun industry

The spring of 2021 has brought a stream of mass shootings across the country. Eight people killed at a FedEx warehouse in Indianapolis, Indiana. Ten people killed in a grocery store in Boulder, Colorado. Eight people killed in three spas in Atlanta, Georgia. Four people, including a 9-year-old boy, killed in a real estate office in Orange, California. Over the weekend, three people were killed in Austin, Texas. 

But the grim reality is that this is now a "normal" year of gun violence in the United States. According to the Gun Violence Archive, 19,394 people lost their lives due to non-suicide gun violence in 2020. The number of non-suicide gun deaths in 2021 is 5,564, which is on track for a similar total. These numbers have risen considerably over the last decade. In 2014, for example, the total number of non-suicide gun deaths was 12,354. 

Why do so many people die from gun violence in the United States? One reason is that there are a lot of guns in the United States. According to a 2018 Small Arms Survey, the latest data, there are more civilian-owned firearms in the United States than people — more than 120 guns for every 100 Americans. 

The number of guns sold has increased dramatically in recent years. A record 39,695,315 guns were sold to civilians in 2020. By comparison, there were 15 million guns sold in 2011 and 9 million in 1999. 

Remarkably, this spike has occurred as the number of people interested in owning guns has declined. In 1977, more than 50% of all households in the United States owned a gun. By 2018, just 34% of American households reported having a gun in the home. Gun manufacturers have made up for this decline by selling a larger number of more deadly firearms to a smaller number of people. 

There are countries, including El Salvador, Brazil, and Mexico, with higher gun deaths per capita than the United States. But the number of gun deaths per capita in the United States is exponentially higher than other wealthy democracies like Japan, the United Kingdom, and South Korea. 

While the prevalence of guns and gun violence in the United States is typically attributed the protections on gun ownership afforded by the Second Amendment, that is not the full story. Much more recently, Congress has awarded special privileges to the gun industry. This legal framework has allowed gun manufacturers to produce large quantities of deadly firearms with little risk. 

Teddy Bears versus AK-47s

Nearly every product — from toasters to lawnmowers to teddy bears — must comply with standards set by the government to ensure the item is safe for public use. The Consumer Product Safety Commission (CPSC) regulates household goods and recreational products. The Food and Drug Administration regulates food and prescription drugs. And the National Highway Traffic Safety Administration regulates motor vehicles. But there is one category of products that is not regulated for consumer safety by any government agency: guns and ammunition. 

The Second Amendment has been in place since 1788, but the consumer protection exemption for guns came much later, in 1972. A law passed that year explicitly forbids the CPSC from evaluating the safety of guns. As a result, there "is not a single federally mandated safety standard or child-proofing requirement for firearms made in the United States." 

The exemption was spearheaded by the late Congressman John Dingell (D-MI). At the time, Dingell was both the ranking member of the Commerce Committee, which was considering the legislation, and a board member of the NRA. The exemption means that the CPSC can regulate toy guns but not actual guns. The agency can mandate a recall of a doll, due to safety concerns, but not a semi-automatic rifle. 

Currently, firearm safety is regulated by the firearm industry, through a group called the Sporting Arms and Ammunition Manufacturers’ Institute (SAAMI). The industry has established some useful regulations, including maximum pressure standards so that guns do not explode during use. But SAAMI operates much differently than a government agency. Specifically, "it does not solicit feedback from the public."

In the absence of federal regulation, states have created a patchwork of rules. California and Massachusetts "require independent labs to drop-test firearms to ensure they don’t accidentally discharge." New York requires "that handguns include various features, such as a safety device to prevent firing." But since guns travel frequently across state lines, these regulations have a limited impact. 

The regulation of guns as a consumer product could save lives without imperiling Second Amendment rights. Similarly, the application of consumer safety standards to cars, another dangerous product, has not restricted the ability of people to drive. But it has saved countless drives by ensuring that cars are designed to be as safe as possible for drivers, passengers, and the public. 

Special immunity

"Most people don’t realize, the only industry in America, billion-dollar industry, that can’t be sued, exempt from being sued, are gun manufacturers," Biden said on April 8. 

That is not precisely true. But Biden is referring to the Protection of Lawful Commerce in Arms Act (PLCAA), signed into law in 2005, which does provide sweeping legal immunity to the gun industry. The PLCAA prevents gun manufacturers from civil liability resulting from "the criminal or lawful misuse" of firearms or ammunition.

But there are a few exceptions to the law, including an "action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner." You can sue a gun manufacturer civilly if the gun malfunctions. But, in nearly every circumstance, you can't sue if the gun functions properly and kills people.

Prior to the PLCAA's passage, in 2000, New York City and 30 other localities sued gun manufacturers, alleging the "industry’s selling practices create a public nuisance by allowing guns to be sold in an illegitimate secondary market where they fall into the hands of criminals."

Had the lawsuit been successful, the gun industry would have to be much more careful about how firearms are marketed and sold. It could have curtailed firearms that are "designed and marketed primarily for killing people, with military-inspired features and advertising." 

But the PLCAA was passed to end New York City's lawsuit and others like it. The lawsuits were thrown out of court. While civil litigation has prompted significant reform in the tobacco and pharmaceutical industry, the gun industry is able to continue with business as usual as the body count mounts. 

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