Gun control by lawsuit: The Clinton Administration's new protection racket

By Robin D. Roberts
web posted May 15, 2000

Everyone recognizes the beginning of a classic protection racket. In movies, it often takes the form of a stereotypical broken-nosed thug with an Italian surname walking into a store and saying, "Nice place you got here. I'd sure hate to see anything bad happen to it." So it must have just been an ironic coincidence that the head of the U.S. Department of Housing and Urban Development (HUD) is named Cuomo -- Andrew Cuomo, son of former New York Governor Mario Cuomo.

In the Clinton administration, the equivalent of "nice place you got here" is to have the Justice Department and HUD file frivolous lawsuits -- funded by the taxes of 270 million Americans -- against perfectly legal, but politically incorrect, businesses -- like gun manufacturer Smith and Wesson.

The lawsuit is frivolous because Smith and Wesson has conformed to the letter of law in the most regulated industry in the United States. It has sold its product only through agents individually approved by the federal government and has had the first sale of each of its products also individually approved by the same government. But none of this has stopped the Clinton administration from charging Smith and Wesson with being "negligent" in the sale, marketing, and design of the only tangible good whose sales are constitutionally protected: firearms.

So what did the company do wrong? Smith and Wesson has been in business for over a century and a half continuously producing high-quality firearms. Its handguns are sold with a lockable case, are highly reliable, and are designed for maximum safety. Indeed, Smith and Wesson was chosen by the FBI in 1989 to produce a new service pistol on short notice when the bureau was driven by a notorious 1986 shootout in Florida to outfit its agents with better firepower.

The company's chief sin seems to be the same sin that has made the tobacco industry such a favorite political target -- namely, that it sells a stigmatized product. The politically motivated nature of the suit is clear. When the same kind of lawsuit went to trial against Beretta in California, the plaintiffs who claimed that Beretta ought to sell pistols with trigger locks not only lost but were ordered to pay Beretta's legal fees. In fact, lawsuits against gun manufacturers charging "negligence" universally have failed.

The reality is that firearms companies are not the deep-pocketed kind of corporation that trial lawyers fattened themselves on in the tobacco industry. Many, such as Colt Industries, are in and out of bankruptcy and financially unable to defend themselves against lawsuits specifically designed to permanently ruin them. In the face of this extortion-by-lawsuit, Smith and Wesson agreed to a settlement with HUD that in most cases merely codified the gun maker's existing business practices or its conformance to existing law -- law which Smith and Wesson has never been accused of violating.

However, some of the restrictions imposed by the settlement are unbelievable in their ridiculousness and hypocrisy. The Clinton administration protection racket forced Smith and Wesson to agree to produce within a few years only guns with trigger locks. But there is no evidence that such guns would result in any benefit to the public.

Would trigger locks protect children from accidents? In 1997, the National Center for Health Statistics reported that accidental handgun deaths for children under age 14 numbered just 21 cases. Twice that many children died by drowning in bathtubs that year. Will HUD sue bathtub manufacturers next?

Perhaps the largest clue to the pointlessness of trigger locks comes from the fact that the Clinton administration exempts its own police and military from the requirement to use them. If trigger locks were actually reliable, no one would benefit from such locks more than police officers, as one-seventh of all police shooting deaths are committed with the officer's own gun. Police officers will not accept guns that are 99 percent reliable, but the Clinton administration employs bogus lawsuits to force private gunowners to use them.

But of course trigger locks and the Smith and Wesson suit aren't about safety or lowering crime rates. The agreement between the gun manufacturer and the Clinton administration is part of a long term strategy for gun control -- a strategy that is dubious at best. HUD chief Andrew Cuomo, who has been criticized by his own Inspector General for misusing HUD funds for self-promotion, announced that Smith and Wesson would get preference for military and police firearm procurement. This announcement in itself outlines an illegal provision violating U.S. law requiring fair and open bidding for contracts.

Additionally, the agreement as first described by the administration attempted to impose restrictions on the conduct of wholesalers and retailers of Smith and Wesson products. Several of the restrictions as announced by HUD had been soundly defeated in Congress when the BATF asked for them to be passed into law. One restriction would have barred dealers from selling at gun shows where private citizens were allowed to buy and sell. When the largest wholesaler of Smith and Wesson products announced it could not abide by these restrictions, the thuggery continued when an investigation for "restraint of trade" was threatened by HUD's partners in the lawsuit against those wholesalers who denounced the extortion racket.

But the insidious nature of the Clinton administration goes far beyond its hypocrisy. As settlement agreements like the Smith and Wesson deal cannot be challenged for their unconstitutional overreaching, the Clinton administration will succeed through extortion in grabbing for itself power explicitly denied it by both Congress and the Constitution.

And the real victim is the rule of law.

Robin D. Roberts is an attorney practicing law in Colorado and a certified chief range officer and pistol competitor. This article originally appeared on LexNatura.Net, a conservative, Catholic journal of politics and culture.

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