Below is my column in The Hill newspaper on the declaration of a gun violence emergency by New York Gov. Andrew Cuomo. The centerpiece of Cuomo’s plan is a new law to allow victims of gun violence to sue gun manufacturers under a nuisance theory. If it sounds familiar that is because it is painfully familiar. It has failed repeatedly in various states, including New York. It is doubtful that Cuomo truly believes that the law will make a significant, if any, impact on gun violence. However, that is not the point. The point is the appearance of action, not the ultimate result of such action.
Here is the column:
Much of politics is based on what behavioral economists call “action bias,” the compulsion “to act even if there’s no evidence that it will lead to a better outcome.” That bias was evident this week when New York Gov. Andrew Cuomo declared a gun-violence emergency, explaining that “we went from one epidemic to another epidemic.”
Cuomo’s declaration will do little beyond satisfying a need to act. Indeed, its main component — a law allowing citizens to sue gun manufacturers — will be as productive as trying to win the New York Marathon by running furiously in place. Yet Cuomo noted that crime fears have drained New York City of people and “they’re not coming back unless they feel safe.” That demands action, even when it is purely illusory.
To be fair, politicians are not alone in action bias. A 2007 study showed the same bias among soccer goaltenders who instinctively jump to the right (44.4 percent) or the left (49.3 percent) without knowing where a penalty kick will land, even though staying in the center (6.3 percent) is the optimal choice. But politics is about perception so “doing something is better than nothing,” even when nothing will likely be achieved.
Cuomo’s gun emergency package does include some concrete benefits not directly tied to gun violence. Of the $138.7 million in funding, for example, $58 million will go to summer youth programs.
The highlight of the package, though, is a new law allowing people harmed by firearms to sue the manufacturers. Not only does that law face serious constitutional challenges but similar lawsuits brought on similar grounds have failed miserably in the courts.
The new law is written to get around a federal ban on such lawsuits. After a slew of lawsuits against the gun industry on a variety of different claims, Congress passed the Protection of Lawful Commerce in Arms Act of 2005, giving gun sellers and manufacturers immunity from liability arising out of the criminal misuse of firearms. The New York law focuses on an exception under the law if a company “knowingly violated a state or federal statute applicable to the sale or marketing” of firearms.
However, the New York law is precisely what Congress sought to deter in lawsuits designed to curtail Second Amendment rights by seeking “damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.” The exception under the law expressly refers to knowing or reckless violations of state reporting and qualification rules.
Cuomo himself may have undermined the law at its signing, declaring that it was designed “to reinstate public nuisance liability for gun manufacturers.” He hailed the law as effectively reversing the federal legislation: “The only industry in the United States of America immune from lawsuits are the gun manufacturers, but we will not stand for that any longer.” Sponsors and supporters specifically referred to the continuing effort to repeal the federal law by using this law to effectively negate it — but states are not allowed to simply negate or nullify federal laws under the Supremacy Clause of the Constitution.
The law itself does not help much. It advances a vague standard to hold gun manufacturers and sellers responsible for the public nuisance of illegal gun use if they fail to implement “reasonable controls” to prevent the unlawful sale, possession or use of firearms within the state. It only references the federal exception in defining “reasonable controls” to include implementing programs to secure inventory from theft and prevent illegal retail sales. If the law is narrowly confined to such reporting and qualification violations, it is unlikely to have much of an impact on gun manufacturers. If it is used more broadly, it is unlikely to be upheld by the courts. Either way, it is not the law being pitched to the public.
New York City previously tried to use nuisance law to hold gun manufacturers liable and even challenged the federal law as unconstitutional. It failed on both grounds in 2013 before the U.S. Court of Appeals for the Second Circuit. In City of New York v. Beretta, the Second Circuit left open what a “predicate statute” might look like for the exception, but it rejected the prior nuisance statute. New York responded by simply taking the same nuisance tactic and putting it into a gun law. It is the type of argument that a number of judges (and Supreme Court justices) would find too clever by half.
Even if the law passes constitutional review, there remains its ambiguous standard. For decades, states and cities have tried to curtail gun sales through nuisance litigation; they have uniformly failed because the effort is transparently an effort to achieve gun control through litigation. They also have sought to hold companies liable vicariously for the crimes of third parties. Yet the Second Amendment is an individually-held right that the Supreme Court has repeatedly protected from such clever legislative measures. Each law was popular when enacted and then bemoaned when it became the vehicle for even greater gun-rights decisions.
New York has a history of reckless legislation on gun control, and it previously earned the ire of some Supreme Court justices by abandoning litigation. Last year, the court was faced with a challenge to a New York law that imposed what some of us viewed as clearly unconstitutional limits on the transport of lawful firearms (even after it was upheld by lower courts). In passing the law, New York officials publicly promised they were certain of the constitutionality of the law and would litigate it all the way to the Supreme Court. When the court accepted the case for review, however, the same officials bolted like a flock of seagulls to avoid a decision, amending the law to moot the issue before the court could strike it down. The court ultimately dismissed the case, over three dissenting justices. It was a rare instance in which the court resisted such a mootness ruling after a party sought to withdraw — but, then, few litigants were as open about evading a contrary decision. Justices Neil Gorsuch and Clarence Thomas specifically called out New York for “manipulating” the docket by withdrawing an unconstitutional law just before a final opinion.
Politicians have “action bias” because they know the public favors leaders of action and rarely blame them when their actions prove to be costly failures. The question is whether New York officials will keep this renewed pledge to litigate the law all the way to the Supreme Court. There are at least three justices who likely are eager to see them fulfill that pledge.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.
Not a good look to try to outsmart athletes about their own game by quoting stats in the 50% range, Turley. So many factors go into what makes a goalie, or shortstop, or defensive back decide which way to shade over. And someone with a stat sheet looking down from 30 thousand feet isn’t one of them.
I’m glad Cuomo has been bold with his gun policy right along. We know doing remarkably little other than be be swayed overtly by gun lobbyists, the nation’s chosen gun policy for the most part, is really effective at watching a problem stagnate of grow worse. So any action with the potential to help is welcomed. And yes, you tried to slip it in there JT, but the thing the people you represent most fear is a pathway to sue manufacturers for ‘clean up on aisle five’ costs. I guess it’s probably helpful you to realize that shines right through your tone in this posting and is quite obvious.
eb
So any action with the potential to help is welcomed.
Speaking of ‘clean up on aisle five’, too bad Democrats can’t be sued when their “actions” turn out to be an unmitigated disaster. Don’t expect any of these narcissists to ever do a serious root cause analysis of the results of their “actions”, that would require a hint of humility they don’t have.
So now to make his hate Turley point Eb is willing to deny the documented stats on Hockey goalies. Well we do all know how important EB’s point is. Eb could have just pointed out the success of Coumo’s gun policy but he had to throw in his little analysis of Professor Turley’s comment on which way goalies lean. EB’s reach with his hockey stick is greater than his grasp.
Gun homicide rates declined about 50% between 1993 until a couple of years ago.
https://www.pewresearch.org/social-trends/2013/05/07/gun-homicide-rate-down-49-since-1993-peak-public-unaware/
During that time, gun sales soared. During that time, many states liberalized gun rights in that they made it easier for law abiding citizens to carry, both concealed and open. Those are the facts.
Then two years ago George Floyd died while he was resisting arrest. In addition to looting, rioting and arson,l your side decided to demonize the police. Crackpots decided to push a campaign to “defund the police”.
The police were in the crosshairs of Democrats and activists. The police knew it. They responded with less pro active policing in high crime neighborhoods. As a result, gun homicide rates have spiked. Most of the gains made in decreasing gun homicide rates the last two decades have been reversed. Because your side decided to demonize the police.
The actions of Democrats and activists likely are the indirect cause for the recent spike in gun homicide rates. Now you want the same people who caused it to “do something” to fix the mess they created.
“Not a good look to try to outsmart athletes about their own game”
The old questions, brains vs brawn.
As a former New Yorker who still owns a home in midtown I am not afraid of legal guns. It is the illegal one’s that are scary along with the people behind them whether or not they hold a gun in their hand. People like Cuomo and DeBlasio are the scary one’s as they do not promote civil order. They do the opposite.
” A 2007 study showed the same bias among soccer goaltenders…”
Steve Levitt wrote about this in one of his Freakonomics books and in a 2002 study, “Testing Mixed-Strategy Equilibria When Players Are Heterogeneous: The Case of Penalty Kicks in Soccer “.
http://pricetheory.uchicago.edu/levitt/Papers/ChiapporiGrosecloseLevitt2002.pdf
“The point is the appearance of action, not the ultimate result of such action.”
Cuomo also has to knock out the picture of him killing thousands of seniors.
THE JUDICIAL BRANCH HAS NO LEGISLATIVE OR EXECUTIVE POWER AND IS NOT A SECOND LEGISLATIVE BRANCH
The judicial branch and Supreme Court must immediately strike down this unconstitutional legislation for violating the letter and spirit, the “manifest tenor,” of fundamental law.
That Cuomo and his ilk are power-hungry communists (liberals, progressives, socialists, democrats, RINOs) does not provide them authority to violate clear and prevailing fundamental law.
The singular American failure has been and continues to be the judicial branch, with emphasis on the Supreme Court, most of the Justices of which should have been impeached and convicted long ago and subsequently “as needed,” for abuse of power, usurpation of power, legislating and modifying legislation and fundamental law through “interpretation,” and “legislating from the bench” without any constitutional authority to do so.
____________________________________________________________________________________________________________________________________________________________________
ENOUGH!
“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
– Declaration of Independence, 1776
If you haven’t picked up on the Democratic spin yet your behind the curve. Blame guns for people leaving your city instead of failed policies. Blame racism for failed domestic policies that keep people in poverty. Blame crime on systemic hate by people of the wrong skin color. Blame tests for bad grades. What cities have the most murder, highest rate of homelessness, most shoplifting crimes, most electrical blackouts, and most black on black crime. Pull out your coloring book with the page depicting America, pick up your blue crayon and color in the answer to my questions presented above. While your at it take your blue crayon to the polls to fill in your ballot. You will receive a blue sucker in reward for your efforts.
To ThinkItThrough,
Spot on analysis.
Be advised, someone might call you racist for such critical thinking skills.
Thanks UpstateFarmer. Heart of the nation.
“The right to keep and bear arms shall not be infringed.
Allowing harassment of constitutionally protected acts, is an infringement. This should never make if past the first hearing in frount of any judge.
“…SHALL NOT BE INFRINGED.”
_________________________
2nd Amendment
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.
“It’s the [“manifest tenor”], stupid.”
– James Carville
_____________
Here’s all one needs to know:
“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what they forbid.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
It makes more sense to sue the governor and NY lawmakers for the crime rampant in the streets of NY.
Cuomo needs a distraction from his killing grandmaw in nursing homes, his book deal and all of those accusing him of sexual harassment (to include pictures, where is the #MeToo movement?).
Note no one mentions the increase in crime/violence might be related to new laws preventing known violent criminals being held on bail or the defund the police movement.
Planned Parent/hood is socially justified exercise of liberal license to deny a woman and man’s dignity and agency, and reduce life to property from conception to grave. A forward-looking wicked solution with “burden” reduction.
When Trump declared a politically motivated emergency at the southern border you were just peachy with it. So please stop the fake outrage.
Emigration reform to mitigate [catastrophic] [anthropogenic] immigration reform and collateral damage at both ends of the bridge and throughout. The leaders of central and south American nations acknowledged that mass immigration was evidence of domestic failures, and that ostensibly well-intentioned sanctuary policies distort assessments and sustain dysfunctional choices.
It was, and is, an actual emergency. There is NO political driver to it.
A porous southern border is a national security emergency. A president has a constitutional duty to take positive action and enforce the law. If you see that as politically motivated, then that reflects rather poorly on the Democratic party and your understanding of what the executive branch should be doing. That would explain your not-so-fake outrage.
MollyG, 180,000 people crossing the boarder illegally in one month is in your book an inconsequential inconvenience. I get it. If you say it’s just a small matter we must consider your wisdom to be the truth.
“The centerpiece of Cuomo’s plan is a new law to allow victims of gun violence to sue” politicians who defund the police, pundits who demoralize the police, (Soros) DA’s who are criminal-huggers, and judges whose courtroom is a revolving door.
That would be a welcome dose of reality.
Speaking of the 2nd amendment, this was pretty interesting.
https://www.msn.com/en-us/news/us/scholar-carol-anderson-on-the-anti-blackness-coded-into-the-second-amendment/ar-AAM3iPg
“ In her new book, Anderson, the chair of African American studies at Emory University, shares a history of the Second Amendment that few of us ever heard, arguing that it was included in the U.S. Constitution after demands by slave states for a constitutional right to form militias to put down slave revolts. Anderson details how Virginia’s Patrick Henry and George Mason expressed fears that the federal government would not help them defeat slave uprisings, and demanded that the Second Amendment be included so they could deal with such revolts themselves — an acute concern in the slave-owning oligarchy of that time.”
That’s certainly an entirely new perspective.
The discovery of gun powder changed the world but there has never been one gun that fired itself…a spark is always required…so you either light a fuse or pull a trigger…law enforcement folks are trained to stop not to kill…this is such a ridiculous debate…it’s like saying the knife, fork, spoon and plate makes people fat or that smoking or vaping or chewing tobacco improves your health or that cancer is good for you or that drinking 2-3 big bottles of vodka a day will stop dehydration…or that jumping out of a plane at 15,000 feet without a parachute proves you are some kind of bird…the government will never take my guns away and they will never force me to get vaccinated either…if the government comes knocking on my door they better have a search warrant and a very good reason the enter my home.
Yes, violence is Pro-Choice and requires affirmative action. They are playing with a double-edged scalpel.
That said, can they abort the baby, cannibalize her profitable parts, sequester her carbon pollutants, and have her, too?
Militias were there to defeat the Indian tribes, the Spanish, the French and the Redcoats.
This turleydog article is BS.
Her book should be in the fiction section.
That’s certainly an entirely new perspective.
If by new you mean made up, I guess so. The link to a msn story was a vehicle for propaganda. Conclusion unsupported by documentation.
I put this in the same catagory historian Michael A. Bellesiles History of guns that for some reason nobody could find the documents he cited.
But the larger examination of scholarship is not finding a few musings by some as the motivating factor of the larger majority. Yes there are racists. No the Nations founding was not predicated on system racism.
This prof looks like a person that saw a small window to make some money by fanning the flames lit by socialist at BLM
Svelaz, the inclusion of the second amendment in the constitution was not to preserve slavery. Guns were being confiscated by the British in the colonies in order to quash any resistance. Confiscation of guns is one of the first acts of any dictatorship. https://www.independent.org/publications/article.asp?id=1422. You find it an interesting take on history through a twisting of history to support an unfounded narrative. You could have researched the history of the reason for the 2nd Amendment in three minutes of time but you didn’t.
Think it through : “Svelaz, the inclusion of the second amendment in the constitution was not to preserve slavery.”
***
The slavery and 2nd Amendment notion was always silly. Our Bill of Rights and 2nd Amendment drew in part on the English Bill of Rights of 1689 which had nothing at all to do with slavery.
TiT,
“ You find it an interesting take on history through a twisting of history to support an unfounded narrative. You could have researched the history of the reason for the 2nd Amendment in three minutes of time but you didn’t”
Actually I did research on the history of the 2nd amendment and it’s far more fascinating than what we think it is now.
For example I didn’t know that the version we know now as the 2nd amendment was not what it’s author James Madison intended. There were two drafts before the final one, the one we are most familiar with, was changed by committee.
The first draft of the second amendment stated,
“ The right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
The prospect of a slave rebellion was very much an issue for slave holding states and the idea of a federal government regulating state militias was seen as an impediment to dealing with slave rebellions.
Madison was a slave holder himself and his own state had free slaves who could join militias, but only as drummers and buglers.
It’s not twisting history. It’s digging into the details that makes it interesting and the notion that the 2nd amendment was ratified as an appeasement to southern states need to keep their slaves in check has merit given the facts surrounding the creation of this nation.
It’s NOT the sole reason mind you, but if was an important one.
Svelaz, the founders put their ideas in writing at the penalty of hanging. They were profuse in their writings on many subjects. The did not hold back. Please provide one example of their connection of the right to bare arms related to control of slavery. The historical documents have been meticulously maintained. Please provide one such document in which they proclaimed the right to bare arms was for the purpose of controlling slavery. Just one. Is this to much to ask?
1)The right to bear arms is ancient. Aristotle said true citizens need to bear arms.
2) Correlation is not causation
SM
“The Illusion of Action: Cuomo’s New Gun Manufacturer Liability Law…”
Cuomo is beyond illusion. Should read, “The Delusion of Cuomo’s New Gan Manufacturing Law.” Anybody of average intellectual aptitude should be able to recognize his rampant narcissism and the ploy to secure reelection. Too bad the awakened of NY fled for other states and won’t be there to vote him out of office. We can pray that those remaining open their eyes.
Make that “Gun”
This is another attempt by craven politicians to appear to be doing something while they refuse to address the real causes of gun crimes. They are counting on the fact that their delusional base hates corporations, so makiing corporations the target is a no-brainer. Meanwhile, plans in Democratic cities to defund and disband the police proceed. As crime continues to rise in those cities, politicians can point to the gun makers, rather than the gun users, as the problem, and we can all rest easy that “racist” cops are off the streets.
You know what won’t help, Professor, doing nothing! Will the law suits help? Who knows but I do think manufacturers should be required to bear the costs of doing business including their support of unregulated gun ownership. It’s time.
So support of a political issue should leave one open to civil liability?
Manufacturers already bear the costs of doing business. Behavior of the consumer is not related to that business. Make the case that car manufacturers should be liable for the behavior of drunk drivers.
They already bear the costs of doing business.
You know what won’t help, Professor, doing nothing!”
Czar Kamala cackles at that suggestion. Going after the gun manufacturers would be as effective as doing a dog and pony root cause analysis of our border crisis by studying central American governance. By the way, which corporations support no regulations of gun ownership?
“Czar Kamala”
Did you see her latest, mind-boggling insight?
Voter ID laws are racist because blacks do not have easy access to copy machines.
I used to think that her cackle was intended as mockery. Now I think it’s a defense mechanism to hide her utter stupidity. Maybe both.
I used to think that her cackle was intended as mockery. Now I think it’s a defense mechanism to hide her utter stupidity. Maybe both.
Absolutely. Add in the demonstrative hand gestures when she is trying to “articulate” some condescending point, and that is her tell that she is completely out of her depth. There’s a reason she was dumped early in the primaries.
Maybe you need to read that linked article on action bias. The “something is better than nothing” action bias would benefit you.
For centuries doctors followed the action bias. If you were sick you got bled. Losing blood isn’t exactly the path to health and surely not a few of these doctors quietly questioned the wisdom, but the practice continued on into the early 20th century.
There is a theory that George Washington was bled to death. He kept getting worse and they kept bleeding him. It’s probably a good thing to have oxygen carrying capacity in your blood when you’re having trouble greathing.
The story goes like this. The french police were chasing a criminal suspect who ran into a large building. The police, low on man power, surrounded a smaller building next door!
LOL!
I am married to an Italian with a huge family here in the US and in Italy…we are 99.99% Catholic conservatives and think evil politicians like Cuomo, DiBlasio,Pelosi,Biden just need to get out of politics,retire and go to confession everyday but since they all support abortion I doubt confession will do any good.
I’m sure that this Act will not interfere with his public/private security, will not stem the import of firearms across state or international borders, will not reduce the number of gang-related deaths, will not reduce violence toward Asians or the elderly, and will not have any meaningful impact on the lives of ordinary New Yorkers. It may help to put his problems with sexual harassment in the rear window
Cuomo is a liar.
Speaks volumes about the Left that they keep welcoming him back after every revelation (see the impeachment farce).
Mendacity is becoming imprinted in the Lefty culture.
Now watch the posts (“But Trump…”; “Turley – Fox News…”).