Opinion: Carolina Critic

No. 140: Outgunned Authors Fire Blanks

• Peter Harry Brown and Daniel G. Abel: Outgunned: Up Against the NRA; The Free Press; 2003; 338 pp.

I love a book with a happy ending — and in spite of the hopes of the authors, this is such a book. Outgunned chronicles the product liability lawsuits by city, county, and state governments, alleging that gun manufacturers negligently marketed their products, leading to criminal misuse. An interesting twist is that one of the authors, Abel, is one of the lawyers who worked with Wendell Gauthier, the mastermind between these gun marketing negligence lawsuits (and the far more successful tobacco lawsuits).

The guns in question worked as designed and advertised; these are not defective guns. The theory is that because a small percentage of guns are unlawfully transferred by a retailer, or more commonly, by a retail customer — three, four, five, or more steps removed from the maker — the maker should therefore be held responsible for its criminal misuse. Substitute “automobile” and “drunk driving accident” into this theory, and the reason for the failure of these lawsuits becomes obvious.

One might get the impression from Outgunned’s title that the political muscle of the NRA defeated these lawsuits. It’s true that four lawsuits were dismissed because of legislative passage of laws shielding gun makers from such lawsuits played a part. But at least four other lawsuits failed on their own merits. Even in gun-hostile jurisdictions, such as New York and California, the courts ruled in favor of gun makers, because the negligent marketing legal theory is too silly to be taken seriously.

Just because Brown and Abel are antigun doesn’t discredit Outgunned. To the extent that Outgunned chronicles how these lawsuits were pursued, and the personalities of the participants, this could be a valuable book. Unfortunately, Out-gunned is so awash in gross factual errors that it is hard to take it seriously — and easy to understand why Gauthier and Abel’s team has lost nearly all these lawsuits so far, either at trial, or on appeal.

Let me emphasize — errors, not intentional deception. Brown and Abel seem to be honestly trying to portray what happened — often providing a surprisingly sleazy portrait of their side. They describe how Wendell Gauthier, the lead lawyer in these lawsuits, faked a heart attack to a judge in order to move his closing argument from Friday afternoon to Monday morning — just before the jury would start deliberations. Brown and Abel describe one of their fellow lawyers who went into an intensive care unit to sign up a client with burns on 80 percent of his body.

To those with knowledge of the subject, the grossness of the errors is astonishing — and because Outgunned lacks footnotes, it is impossible to determine on which sources the authors carelessly relied. Some of these errors are minor, and simply show the authors’ firearms ignorance, such as several references to “Glock service revolvers.” Glock has never made a revolver.

Is this nitpicking? No, because Brown and Abel tell us in a number of places that what they are doing with these lawsuits is acting “as a de facto fourth branch of government, achieving by litigation what had failed legislatively.” If you don’t understand these basic technical details, how can your extraconstitutional “fourth branch of government” come up with sensible laws?

More important than these careless errors about firearms are the careless errors about firearms laws — where, one would presume, a lawyer would be in his element. “The Assault Weapons Ban prohibits dealers from selling guns like Uzis and Tec-9s to anyone.” Not true. The 1994 federal assault weapons law, which actually prohibits new manufacture and importation, and is not a ban, does not apply to “the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under Federal law on the date of the enactment of this subsection.”

The lawyers threatened Smith & Wesson with lawsuits to get them to accept a “Code of Conduct” that required makers to not sell guns that could be “quickly converted” into machine guns. That was already federal law, and has been for many years. Any weapon that “can be readily restored to shoot, automatically more than one shot, without manual reloading” is already a machine gun under existing federal law. How many hours did they bill their taxpayer clients for drafting that provision?

Legal arguments are supposed to be a series of logical arguments based on facts, leading to conclusions. When the facts are so often wrong, it’s hard to take seriously the conclusions — or those making the arguments.