Parents of Sandy Hook victims planning lawsuit against gunmaker Bushmaster

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139. An interesting theory that is, at best, premature and will go nowhere fast.

As indicated in the article, a lawsuit is really meant as a direct challenge to the PLCAA, a law already tested and upheld, or to seek a basis to argue for its repeal. Given the prevailing jurisprudence concerning gun control and product liability, public support for gun rights, and composition of Congress and the courts, the theory is little more than academic wish fulfillment with a Supreme Court that gave us Heller and McDonald, and a Democratic Senate (now turned Republican), no less the Republican House, that couldn't even pass universal background checks.

Note that unlike air bags and seat belts, there is no actual mandated legal obligation for firearms to contain these purported "safety measures." Furthermore, unlike the right to keep and bear arms, ownership and use of automobiles is not a right guaranteed by the Constitution.

Congress or the individual states could possibly legislate that firearms incorporate certain features, subject to substantial constitutional scrutiny. Some states like New Jersey have actually legislated a (Constitutionally suspect) requirement that all firearms be "smart" guns once the technology is actually available. However, the technology is still in its infancy and would hardly be considered widespread, reliable or fit for purpose. The real test of the advantageousness, benefit and accessibility of such technology will likely be its mandatory use by law enforcement, government security and the military. Remember that at the dawn of seat belts and air bags in cars, and even as the technology became widely adopted, courts did not find that cars, old and new, that lacked the technology were in any way inherently "unsafe" or "dangerous."

As indicated in my earlier posts, the PLCAA was primarily intended to immunize manufacturers from these very type of claims that essentially argue that firearms are somehow inherently unsafe. It is simply not permissible to widely circumvent constitutional rights through executive or administrative action, no less tort law.

If the goal is truly the adoption of these alleged safety measures, government could engage in their own R&D or provide incentives to the private sector to develop and implement such technology. However, product liability law does not require anyone to research and develop ever greater safety measures, regardless of product, and as of now, it certainly will not be mandated by the courts.