What the Johnson & Johnson ruling tells us about the gun industry’s unparalleled protections
By Kelly Sampson, Counsel, Brady
“One of these things is not like the others.” — Sesame Street
- After the tobacco industry deceived millions, a 1998 settlement required tobacco companies to end harmful business practices, fund public education campaigns, and pay billions of dollars.
- After Johnson & Johnson’s misleading marketing fueled Oklahoma’s opioid epidemic, an Oklahoma judge ordered the company to pay $572 million toward ending the crisis.
- As gun manufacturers’s irresponsible business practices fueled America’s gun violence epidemic, Congress passed a law to protect them from accountability.
“One of these things just doesn’t belong” — Sesame Street
It may take time, but eventually, all actions have consequences. Whether you’re a preschooler whose tantrum earns a time-out, a high school student whose insolence earns a detention, or a drug company whose dishonesty earns a multimillion-dollar judgment, you reap what you sow.
That is, unless you are an irresponsible firearms manufacturer, distributor, or dealer. In that case, you will reap profits, though you sow violence, because federal and state laws protect you from facing the consequences of your actions.
Last week’s ruling against Johnson & Johnson exposes the gun industry’s shockingly special treatment, because, although remarkably similar business practices lie behind America’s opioid and gun violence problems, only gun manufacturers enjoy specific protection. In many cases, the claims are almost identical:
- For years, Johnson & Johnson overstated opioids’ use for treating non-terminal, chronic pain, while downplaying the risks of addiction, abuse, and diversion to the criminal market. For years, gun manufacturers have overstated the benefits of buying guns for self-defense while downplaying the increased risks of homicide, suicide, or accidental death.
- As a result of Johnson & Johnson’s misleading marketing, doctors overprescribed opioids and flooded the market, causing thousands to overdose or become addicted. As a result of the gun industry’s deceptive marketing, Americans have stockpiled guns for self-protection, causing thousands of deaths and injuries.
- Prescription opioid overdoses killed more than 2,100 Oklahomans between 2011 and 2015. Guns killed more than 3,100 Oklahomans between 2011 and 2015.
Given these startling similarities, you might think that Oklahoma could hold gun manufacturers accountable for their part in fueling gun violence like it has held drug manufacturers accountable for their part in fueling the opioid epidemic. But Oklahoma cannot do that because the gun industry lobbied federal and state legislatures for special protection years ago. And they got it.
For that reason, Oklahoma law explicitly protects the gun industry from public nuisance claims like the one it brought against Johnson & Johnson. And Oklahoma isn’t the only place that created special rules just for the gun industry; these laws are all over the country and in the federal government.
Special Rules for Special Snowflakes
To understand the gun industry’s special protection, you’ll need to go back to the late 90s and early aughts, when 32 cities and counties sued gun manufacturers, distributors, and dealers. The cities’ arguments then sound just like Oklahoma’s arguments now. Namely, they argued that the gun industry created what’s known as a public nuisance. Although the exact definition of a public nuisance varies by state, it generally refers to an act, or a failure to act, that injures or inconveniences the community.
In the cities and counties cases, they argued that the gun industry’s failure to exercise reasonable distribution and sales practices funneled guns to the criminal market. Predictably, gun violence resulted, causing thousands of residents to be shot, killed, injured, or consigned to live in fear. The cities and counties then devoted millions of dollars to address the present problems and worked to prevent further gun violence. The cities and counties therefore asked courts to order the gun industry to both pay those costs and change their business practices to prevent further violence.
In response, the gun industry used its influence to get states to pass legislation limiting the industry’s liability. And the states listened.
Today, 34 states, including Oklahoma, have laws that give the gun industry some level of protection from civil lawsuits or prevent local governments from suing manufacturers, distributors, and dealers. But state laws were not enough for the gun industry, so it lobbied Congress for special treatment. In 2005, they got it. That year, President George W. Bush signed the harmful Protection of Lawful Commerce in Arms Act (PLCAA) into law. Like the state laws, PLCAA gives the gun industry special protections from liability that other industries do not enjoy.
This naturally raises a question: doesn’t the government have to treat the gun industry differently because of the Second Amendment? The answer is no.
The Right to Keep and Bear Arms
To understand the Second Amendment, there are a few things you need to know. First, you need to know what it says:
“A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Second, you need to know that the Supreme Court’s interpretation of a constitutional provision is the law.
Third, you need to know that in 2008, the Supreme Court decided that the Second Amendment means that law-abiding, upstanding citizens have the right to keep a firearm in their homes for self-defense. The Court did not say that the Second Amendment gives manufacturers, distributors, and dealers the right to make irresponsible choices that feed the criminal gun market.
In fact, the Court made it clear that public safety can, and should, factor into the Second Amendment. The Court emphasized that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
In other words, the Second Amendment is not a license to kill. Requiring the gun industry to be responsible, and holding it accountable when it isn’t, is completely consistent with the Second Amendment.
The Second Amendment is not the reason that the gun industry has not faced the same consequences as opioid manufacturers. These immunity laws are. But we can change that.
Make the Gun Industry Play by the Same Rules
First, we call on states with gun industry immunity laws to repeal them. This call is particularly urgent for the following states, who have taken opioid manufacturers and distributors to court while maintaining laws that do their best to let the gun industry off the hook: Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and West Virginia.
In total, 49 states have filed opioid suits. (Nebraska, the only opioid holdout also has a gun industry protection law.)
Second, we call on Congress to pass The Equal Access to Justice for Victims of Gun Violence Act. The new law would effectively repeal PLCAA and hold the gun industry to the same standards as every other industry.
States and the federal government have every reason to take gun violence as seriously as opioids. In 2017, which is the most recent year with complete data, guns killed 39,773 people; that same year opioids killed 49,000. But the opioid crisis is a relatively recent phenomenon, while gun violence has plagued the country for decades, killing more people since 1968 than all of America’s wars combined.
But right now, the gun industry is not like the others. Companies that sell dangerous cars, or rush unsafe planes into service, or induce doctors to prescribe deadly drugs, all face consequences. Gun manufacturers, distributors, and dealers who deceive the public and recklessly feed the criminal gun market should face consequences too. State legislatures and Congress must repeal gun industry protections, but how can we help?
The solution is one our namesake, Sarah Brady, lived her life by: If you can’t change the laws, you change the lawmakers. It may sound like a long shot, but we know it’s possible. In 2018, Americans said enough is enough to gun violence and, for the first time ever, we elected a gun violence prevention majority to the House of Representatives. And now, in 2020, we have the election of a lifetime to make our voices heard and hold the gun industry accountable once and for all. It is in our hands to elect gun violence prevention champions to relay our message: The gun industry is not above the law, and the time is now to repeal special gun industry protections.
