Off Target

Right–and gun control is what will come to pass when all those anxious dog walkers reach critical mass and head for the voting booth. Meanwhile, Outgunned, by journalist Peter Harry Brown and trial attorney Daniel G. Abel, is about what’s happening in the here and now. More specifically, the book is a sympathetic look at the efforts of a nationwide consortium of trial lawyers (including Abel) who called themselves the “Castano Group,” and who took on the gun industry in the late 1990s. Why are these lawyers particularly interesting? While it’s true that others had already tried to sue the gun industry (including in a well-publicized New York litigation), the Castano lawyers were different. In the world of the plaintiff’s bar, they were the A-Team. They had resources, connections, and experience–including the experience of winning a $346 billion settlement from the tobacco companies. They were also ambitious. Beginning in 1998, the Castano lawyers launched anti-gun suits in cities across the country–until more than 30 state and local governments were involved in litigation against the gun industry.

The Castano lawyers knew this would be extremely challenging litigation and were proven correct–most of it has floundered or failed. So why did they do it? Not for the cash, insist the authors, who point out that the gun companies do not have the same deep pockets as Big Tobacco and could never offer the same kind of rich settlement that the tobacco litigation yielded. But even if one accepts that the lawyers’ motives were largely pure (maybe they were, maybe they weren’t)–and, indeed, even if one discounts their failures in court–Outgunned is not a book that inspires great confidence in the potential of litigation to solve the nation’s most vexing policy issues.

It also is not a very reflective or analytic book. To be fair, Outgunned bills itself as an “insider account of the battle over gun control.” This is meant to be juicy stuff, not a policy tract. But without much critical argument to distract the reader, the book bogs down in a muck of appalling details about the Castano lawyers who are supposed to be our heroes–facts that the authors unabashedly trot out and never successfully excuse. The key players include well-connected Washington, D.C., lawyer John Coale–who is called “the clown prince of the legal world”–and Cincinnati’s Stanley Chesley, a.k.a. the “sultan of settlement.” But the lion’s share of the limelight is reserved for the book’s co-author Abel and his partner, Wendell Gauthier, with whom Abel bonded at the site of the Union Carbide disaster in Bhopal, India. Ah yes, those were the days. “While an elephant chased Gauthier through the streets of India,” recall the authors, “Abel crept over terrain with thickets full of cobras to spy on the Union Carbide plant.”

Excuse me, but doesn’t that sound like the voiceover for an old “Rocky & Bullwinkle” segment–all deadpan and credulous? What’s more, the authors manage to sustain this tone for much of the book, making for reading that, despite the subject matter, sometimes verges on the hilarious. In one memorable scene, the Castano lawyers make the mistake of letting a reporter, Matt Labash of the conservative Weekly Standard, tag along for a few days while they work and play. Labash discovers firearms “everywhere” on these ostensibly anti-gun lawyers, including “in Danny Abel’s automobile [and] inside the jacket of [colleague] Michael St. Martin–who pulled out the weapon in a fancy restaurant.” “I think this is really going to hurt our credibility,” intones a sorrowful Gauthier after Labash has left, armed with all the goods for a truly world-class takedown.

Well gosh, Bullwinkle, that’s right–and the same observation might be made of Outgunned. Indeed, by the time we read about Gauthier’s adventures in riverboat gambling and learn that John Coale’s law license was suspended as recently as 1996 for “professional misconduct in soliciting clients,” the Castano lawyers are all but stripped of credibility. I say this, by the way, as a lawyer who has some appreciation for the useful role that trial attorneys can play in ensuring that manufacturers take responsibility for the goods and services they produce. I certainly don’t reflexively dislike trial lawyers. But Outgunned gives precious little reason to trust the judgment of its protagonists–much less afford them a prominent role steering national policy in an area pretty far from their normal product liability work.

That brings up another problem the book never successfully grapples with: The Castano lawyers do not seem to have much of a case. Standard product liability principles wouldn’t work here because guns tend not to be defective–they function all too effectively. So instead the Castano lawyers have tried to work with a “public nuisance” theory–an archaic legal concept retrofitted for the present circumstances. The nuisance theory holds that by oversupplying markets outside city limits with guns, manufacturers create a surplus of weapons that find their way into criminal hands. The gun-toting criminals then head right into town and create a public nuisance for which the manufacturers may be held liable.

The problem with this theory is that in order to find the manufacturers liable you must first conclude that they had a duty to keep track of their guns after they were lawfully sold into the distribution chain. Maybe that is something we want gunmakers to do, but it’s the kind of expectation that’s ordinarily announced by a new law or regulation. Courts shouldn’t pull this stuff out of thin air, at least not usually. To be sure, once in a long while the courts do get ahead of the legislature to good effect. As Wendell Gauthier notes, “If lawyers hadn’t launched Brown v. Board of Education, you would never have had integration because it was so unpopular with lawmakers.” But while this may be the case, the gun suits are not Brown, the Castano lawyers are not Thurgood Marshall, and the courts have made it clear–through a chilly reception–that they do not find the parallels to be especially compelling.

In the end this may all be for the best. For all its resonance, the question of how to achieve sensible gun control is really a matter of fine-tuning public policy: How many guns a month should someone be able to buy? How should we handle unregulated gun-show sales? How do we achieve registration and manage the information that it confers? Courts mete out justice by conferring permanent and inflexible rights and therefore are not particularly good at getting down into the weeds on issues like gun control. By contrast, legislatures are well-equipped to handle these sorts of issues–if they choose to do so.

The difficulty for gun-control advocates is that legislatures generally don’t choose to do so, in part because of the strength of the gun lobby. The Senate bucked this tendency in May 1990, when it passed a package calling for child-safety devices on handguns, restrictions on semi-automatic weapons, and expanded background checks. But several weeks later, this package was defeated in the House of Representatives, making the National Rifle Association, the chief opponent of the measure, look even more powerful than it did before.

There is, however, some potentially encouraging news for those who seek better gun control. It turns out that the NRA may not be in the driver’s seat forever. In perhaps the most interesting passage of Outgunned a former CEO of Smith & Wesson notes that, despite its current strength, the NRA’s base is eroding: Fathers don’t teach their sons to shoot anymore, fewer people are getting into the sport, and fewer voters are owning guns. Meanwhile, with every suburban gun tragedy, a few more William Safires chafe at their flak jackets and look for help from the statehouse. The Castano lawyers may have been outgunned in court, but if these demographics continue, gun control may have a bright future without them.

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