Case Western Reserve Law Review
Note, 47 (1997): 979.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
ON LEMON SQUEEZERS AND LOCKING DEVICES: CONSUMER PRODUCT SAFETY AND FIREARMS, A MODEST PROPOSAL
INTRODUCTION
A. Why Buy a Firearm? Intended Uses, Unintended Consequences
In 1971 officials at Detroit General Hospital noticed that the number of children admitted to their care with firearm injuries had increased.[1] In an attempt to find a reason for that increase the hospital began an investigation. They discovered that both gunshot wounds and accidental firearm fatalities among children had increased along with the number of firearm permits. Immediately following the Detroit Riots of 1967 law enforcement officials in Detroit had issued three times as many firearm permits as before.
The term firearm encompasses "weapon(s) from which a shot is discharged by gunpowder."[2] The United States Code broadly defines a firearm as a shotgun, rifle, machine gun, destructive device, or concealable weapon from which a shot can be discharged through the energy of an explosive.[3] Outside of the military and law enforcement, these weapons serve three legitimate purposes: sport, collection, and self-defense.[4] Variations of use [Page 980] within these general categories provide insight into the place firearms occupy in Ameri can culture:
Hunters . . . view their guns as a way to escape the "stoplight and concrete jungle." Target shooters emphasize the calmness, the discipline, the self-control involved in shooting. Devotees of much reviled assault rifles are drawn to the technology and the brute impact of these weapons. Collectors see beauty and craftsmanship. . . . (M)illions of Americans . . . keep guns for self-protection. . . . Some gun owners see their weapons as foils to government tyranny.[5]
The need served by a particular firearm, however, does not limit the potential uses of that firearm. The design of a shotgun is useful for both hunting and homicide.[6] The brute impact delivered by an assault weapon on the shooting range translates into broken bodies and lost lives in the hands of a troubled adolescent.[7] The handgun kept in the dresser drawer that brings a sense of security to home and family can destroy that family when discovered by a curious child or a depressed teen.[8][Page 981]
B. Issue
This Note argues for the improvement of firearm safety through the implementation of a federally mandated performance standard requiring that all firearms are personalized and child-resistant. This argument is founded on four premises. First, firearms are unsafe as currently manufactured and designed. Second, greater safety can be achieved by implementing performance standards. Third, mandatory performance standards are most effective when implemented at the federal level. Fourth, personalization and child-resistance are feasible performance standards that will improve firearm safety.
Part I.A supports these claims by detailing the presence of firearms in American society. The market for firearms is analyzed in terms of supply, distribution, and demand. Part I.B argues that firearms are unsafe as currently designed, and details the extent of the unintended use of firearms by unintended users: children, adolescents, and criminals. Part I.C describes the regulatory environment of firearms, outlining existing regulations at all levels of government, and discusses common law remedies available within the products liability scheme. Industry efforts to increase firearm safety are also highlighted. Part I.D provides an analysis of federal product safety regulation via a description of the Consumer Product Safety Act ("CPSA") and the authority it grants to the Consumer Product Safety Commission ("Commission").
The analysis begins in Part II.A with an introduction to the context and method of the argument. Part II.B describes the specific details of the child- resistance and personalization proposal and suggests two possible means of implementation. Part II.C analyzes this proposal within the framework of the findings required by the CPSA. Part II.D gives further consideration to the major challenges facing such a proposal.
This Note concludes that child-resistance and personalization should be required functions of each and every firearm, that those functions should be mandated within the existing federal regulatory scheme, and that if those functions were implemented they would begin to reduce the excessive costs associated with unintended firearm misuse.[Page 982]
I. BACKGROUND: FIREARMS AND AMERICAN SOCIETY
A. The Quantity of Firearms in American Society
1. Production: The Supply of Firearms
It is generally asserted that there are 200 million firearms circulating within the United States. [9] This number, however, is extremely difficult to verify.[10] One reason for this is that the federal regulatory system does not include a uniform system of firearm registration.[11] Another difficulty is that the usable life of a firearm is extremely long. Senator Daniel Patrick Moynihan of New York has noted that "the life of a handgun seems to be measured in decades, generations, and even centuries."[12] Because of these problems it is necessary to study a half-century of firearm production, imports, and exports to get a realistic perspective of the number in circulation.
There are about 1,200 firearm manufacturers in the United States.[13] Most firearm production occurs in Massachusetts or Connecticut in an area known as "Gun Valley."[14] Reliable records of [Page 983] the annual production of these companies were not compiled until 1973, when the Bureau of Alcohol, Tobacco, and Firearms ("BATF") began to monitor production.[15] There were estimates of the size of the existing firearm market before BATF began to keep its records. In a 1968 study conducted by the National Commission on the Causes and Prevention of Violence, it was estimated that there were 90 million firearms in circulation.[16]
Approximately 4.5 million firearms were produced each year between 1973 and 1994.[17] During these years, the average annual export rate was eight percent of domestic production, while imports totaled almost 19 million.[18] These figures reveal that for that twenty-one year period, a total of over 109 million firearms were introduced into the domestic market.[19] Substituting average numbers for unreported years,[20] and adding these to the tabulated numbers and the 1968 study's numbers reveal that there are approximately 230 million firearms circulating in the domestic market.[21]
2. Distribution
The firearm distribution network has undergone significant change since 1993. In 1994, one source reported that there were 284,000 licensed firearm retailers.[22] Only 20,000 of those had legitimate stores, and half of those were pawn brokers.[23] The re-[Page 984] maining dealers sold "guns out of car[s] . . . over the kitchen table, or at gun shows and flea markets." [24]
Because of stricter licensing requirements, the number of federally licensed firearm distributors has decreased dramatically since 1993.[25] By December of 1995 the number of licensed dealers had shrunk to 120,000.[26] That number is expected to continue to shrink to between 20,000 and 24,000 by early 1997.[27]
The BATF estimates that 7.5 million new and used firearms are sold at retail outlets each year.[28] A good percentage of the nation's firearm supply is in circulation.[29] A 1993 Department of Justice survey revealed that one-half of American homes own a firearm.[30] The average number of firearms in these homes is reported to be 4.1.[31] This percentage has remained relatively constant since 1959.[32]
Firearms can be expensive. A Cleveland-area gun and tackle shop listed the Smith & Wesson 640, a .357 Magnum revolver, at $449.95.[33] The Colt .45 ACP, a forty-five caliber semiautomatic handgun, sells for $744.95, while the Taurus 85, a thirty-eight caliber revolver, sells for $284.95.[34] The Remington 870 Express,[Page 985] a popular shotgun, lists for $259.00.[35] Most rifles sell for around $500.00.[36]
3. The Demand for Firearms
The demand for sporting-use firearms may be decreasing. In 1994, adults in twenty percent of American households identified themselves as hunters, down from twenty-nine percent in 1977.[37] Even with this decrease approximately seventeen million hunters spent nearly ten billion dollars in 1992.[38]
The euphoria within the firearm manufacturing industry in 1994 turned to jitters in 1995.[39] Industry experts reported that "[d]uring 1993 and '94, the threat of gun bans drove the market as consumers bought at a frenzied rate. With the November elections, consumers no longer felt threatened and their buying motivation disappeared."[40]
There may be truth to the assertion that the actions of the federal government influence firearm sales. With the passage of the Violent Crime Control and Law Enforcement Act of 1994,[41] firearms loosely defined as assault weapons were banned from production if they possessed certain physical characteristics.[42] Rather than stigmatizing the assault weapons already in circulation, the ban succeeded in increasing demand. One gun dealer noted that the "act did more to put more firearms out there on the streets, as far as in the hands of citizens. . . . It was the best advertising campaign you could imagine."[43][Page 986]
Fear for personal safety at home and on the streets is a significant factor influencing firearm demand.[44] That concern is intensified during and after periods of civil unrest. Gun sales surged following the 1965 Watts riots and the 1967 Detroit riots.[45] In the aftermath of the 1992 Los Angeles riots the buying behavior of Californians reflected the mood nationwide as sales in that state reached the highest rate in twenty years.[46] Advertisements placed by gun dealers and the NRA following the riots used that fear to promote sales.[47]
Fear for personal safety is also a key factor in the emerging concealed-carry movement.[48] Several states have enacted statutes permitting individuals to carry a concealed firearm.[49] These statutes usually provide that an individual must demonstrate a need and that they do not have a criminal record or history of mental illness.[50] Individuals within the firearms industry have stated that the concealed-carry movement is likely to enlarge the market for firearms, particularly handguns.[51] This movement proceeds despite [Page 987] the lack of definitive statistics on an armed citizenry's effect on crime[52] and the ability of handgun owners to effectively fire their weapons in defensive situations.[53]
B. Unintended Uses by Unintended Users
1. Children
Dr. Katherine Christoffel, a Chicago pediatrician and an advocate of improved firearm safety, believes she can tell from the age of a child admitted with a gunshot wound the general circumstances through which that wound was acquired.[54] Dr. Christoffel's experience shows that if a child is under the age of five, he ("[I]t is almost always a he."[55]) will have found a gun at home or at [Page 988] the home of a friend and begun to explore, thinking it may be a toy.[56] If he is over age five "the story will be similar, except that the handling of the gun will have been fantasy play . . . just like on TV."[57]
Dr. Christoffel's experience reflects the norm, as the majority of these accidental shootings occur when a child plays with a loaded gun.[58] From 1985 to 1990, between 87 and 128 children under the age of ten died each year from accidental shootings.[59] For the same years, an average of thirty-six children between the ages of one and four died each year from unintentional firearm discharges.[60] For children ages five through nine, the average number of fatalities per year was fifty-eight.[61]
2. Adolescents
Dr. Christoffel's experience also indicates that if an adolescent is admitted to her care with a firearm injury, the injury is likely to be a suicide attempt or an assault. [62] As children mature the types of unintended uses of firearms broaden to encompass suicide and violent crime as well as accidental shootings.
From 1985 to 1990, an average of 421 adolescents and teens between the ages of ten and nineteen died each year from accidental firearm discharges.[63] Accidental deaths were most common within the fifteen through nineteen year-old age group, which averaged 261 per year.[64] The average for the ten to fourteen year-old age group was 161 per year.[65] It has been estimated that for each accidental firearm fatality there are nearly five injuries.[66][Page 989]
Since the enactment of The Gun Control Act of 1968, it has been illegal to sell or transfer a firearm to a minor.[67] Twenty-one states have provisions explicitly prohibiting the possession of firearms by juveniles.[68] During Senate testimony exploring the problem of children and weapons, Ronald Stephens, Executive Director of the National School Safety Center, stated that the "primary source of all weapons [is] the student's residence."[69] Mr. Stephens detailed other illegal sources through which adolescents acquire firearms, noting that in 1992 one student in Houston was running a gun rental service.[70]
Since 1992 the National School Safety Center has tracked 147 violent deaths in schools, 119 of them involving firearms.[71] The Center reported 46 violent deaths during the 1993-94 school year, 20 during the 1994-95 school year, and 26 at the mid-point of the 1995-96 school year.[72] Motives for possession may vary. One study noted that adolescents may desire to possess a firearm for status enhancement.[73] That study concluded, however, that as gun [Page 990] possession increases, more adolescents may wish to carry a firearm for protection.[74]
Student firearm possession may vary depending on the local environment for crime. In high crime areas, two in five students report having carried a weapon for protection, while one in eight have done so nationally.[75] One in three students in high crime areas reported cutting class because of fear, while one in nine did so nationally.[76]
FBI statistics reveal that arrests of juveniles for weapon law violations have increased dramatically since 1970.[77] The arrest figures for 1992 show a 151% increase since 1990, a 235% increase since 1980, and a 291% increase since 1970.[78] Over the same twelve year period there was a 116% rise in the number of violent crimes committed by juveniles.[79] In 1970, 54,860 juveniles were arrested for violent crimes.[80] By 1992 that number had grown to 118,334.[81] A growing percentage of homicides committed by juveniles involve firearms. Rates of adolescent arrest for murder when a firearm was involved increased seventy-nine percent through the 1980s.[82] From 1987 to 1991 the juvenile arrest rate for murders involving firearms increased by eighty-five percent.[83]
Suicide rates within the ten to nineteen year-old age group nearly doubled between 1970 and 1990.[84] Although the number of [Page 991] actual suicide attempts has not increased, the higher rates of completed suicides are due to the use of more lethal means.[85] When a firearm is the chosen method for a suicide attempt, there is a ninety-one percent chance that the attempt will result in death.[86]
3. Criminal Use of Stolen Firearms
The lack of a uniform registration system also makes it difficult to determine the extent of criminal use of stolen firearms. The FBI compiles national data from local law enforcement officials on the value, not the quantity, of stolen firearms.[87] By dividing the total value of all firearms reported as stolen by an average gun value, one report estimated that 458,475 firearms were stolen from households in 1992.[88] An estimated increase of eleven percent due to thefts from commercial operations was added to that figure, concluding that about 500,000 firearms were stolen in that year.[89]
Stolen firearms play a large role in criminal activity. In 1991 firearms were used in thirty-six percent of the more than two million attempted and completed violent crimes.[90] A sampling of homicide statistics reveals that sixty-four percent of all homicides involve a firearm.[91] Twenty-five percent of all firearms used in crime are stolen, many of them within less than six months.[92] In-[Page 992] terviews of prison inmates and juvenile detainees reveal that significant percentages of them stole their last firearm.[93]
4. Monetary Cost of Firearm Violence
The nature of the unintended uses detailed above makes a cost assessment difficult. For the purposes of this argument, an estimate of the cost of injuries resulting from unintended uses can be gauged based on previously assessed costs for firearm injuries. The cost of crimes committed by adolescents and the costs of the use of stolen firearms by criminals are too difficult to ascertain and will not be estimated. Thus, the figures estimated account for only a portion of the total cost to American society of unintended uses of firearms by unintended users.
A report prepared for the General Accounting Office estimated that 65,000 people are treated every year for injuries resulting from firearms.[94] That report noted that the average lifetime cost of a firearm injury is $53,831.[95] Injuries that do not require hospitalization cost $458, while injuries that do result in a hospital stay cost $33,159.[96] Fatalities cost $373,520. [97]
By comparing these costs with the numbers of deaths reported above, it is possible to estimate some of the monetary costs. For 1985, the monetary cost for accidental firearm deaths of children and adolescents was approximately $193 million.[98] If there were five times as many injuries that required hospitalization,[99] those costs would amount to nearly $85 million. For suicide among adolescents,[100] the cost in 1985 was nearly $470 million. Thus, in 1985, this limited range of unintended consequences amounted to nearly $750 million in monetary costs. These numbers, of course, [Page 993] do not reflect the emotional costs associated with accidental firearm deaths and violent crime.
C. Firearm Safety: The Current Environment
1. Industry Efforts: Existing Safety Measures
The idea of producing a child-proof firearm is more than a century old. In 1884, Smith & Wesson designed a gun that became known as "the lemon squeezer."[101] Its nickname is derived from the grip of the gun, which had to be squeezed before the trigger could be pulled. Young children were prevented from firing the weapon because their hands are too small and weak to perform both actions at once. Smith & Wesson continued to manufacture the lemon squeezer until the 1930s, when it was discontinued for lack of demand.[102]
Today, most firearms come equipped with a device called a "safety," while some come equipped with more than one.[103] Safeties are intended to reduce unintended discharges by providing a manual trigger lock that can be turned off and on by the user. Their design generally consists of a small lever or a button that can be shifted from "on" to "off" by the user's thumb or forefinger.
Firearm owners can purchase additional add-on or containment devices that contribute in varying degrees to the child-resistance, personalization, and theft prevention of their weapons. Trigger locks and gun safes are the primary devices sold by firearm retailers.[104] Industry experts report that a consumer generally wants to know "which safety device will allow her immediate access to her gun, and still keep the gun out of the hands of curious or criminal hands."[105]
Trigger locks are inexpensive, and when used will generally prevent accidental discharge but not theft.[106] One trigger lock [Page 994] prevents trigger movement while providing a motion-sensitive alarm. Another has two pieces that mount on either side of the trigger guard that are locked into place with a heavy assembly screw.[107]
Large gun safes usually offer greater security, but may be cost and size prohibitive.[108] For just under $1,000, the Cannon Model 23 weighs 450 pounds with space for more than a dozen long guns. It is operated by a combination lock and key with a spy-proof ring. Smaller lock boxes and trigger locks allow a more limited measure of security at a lesser cost.[109] The typical lock box offers a stainless steel exterior and a combination lock. Generally, small lock boxes "will not deter a burglar . . . or a determined child with tools. . . [They are] designed to keep basically good but curious kids from hurting themselves or others."[110]
Manufacturers have taken steps to increase safety awareness. In 1995, Remington committed one million dollars to several safety programs.[111] One program entailed placing safety-related advertisements in shooting magazines. Another involved production of a safety video shipped free with every Remington firearm.[112] The third project involved co-marketing a video entitled Shooting & Hunting Safety¾Play it Safe.[113]
2. The State and Local Level
It is estimated that there are more than 20,000 firearm control measures in existence at the state, local, and federal levels.[114] These regulations generally intend to distinguish between different types of weapons and different types of people.[115] Thus, some of [Page 995] the most dangerous weapons are banned from commerce while individuals considered to be dangerous are prohibited from possessing firearms.[116]
State measures generally include licensing or permit requirements[117] and possession restrictions,[118] in addition to increased criminal sanction for using a firearm in crime. Many municipalities have chosen to ban the possession of semi-automatic firearms within their boundaries,[119] or to impose liability on manufacturers of certain weapons misused within their bounds.[120] Some state's legislatures have chosen to impose criminal penalties for the negligent storage of firearms.[121]
3. Federal Regulations
Federal firearm regulation is a twentieth century phenomena. The Revenue Act of 1918 placed a ten percent federal excise tax on firearms and ammunition.[122] Congress banned the sale of handguns through the mail in 1927.[123] In 1934 the National Firearms Act made it difficult to acquire especially lethal types of firearms.[124] The Act granted regulatory power to the Secretary of the Treasury because of the link between these regulations and the federal government's taxing authority.[125] Within the Treasury Department, the BATF is responsible for enforcement of firearm regulations.[126][Page 996]
In 1938 the Federal Firearms Act required licensing of dealers, banned sales to felons, and criminalized the transport of stolen firearms.[127] Thirty years later Congress repealed the Federal Firearms Act, broadening its regulation of firearms under the Gun Control Act of 1968.[128]
The Gun Control Act of 1968 required that all distributors of firearms or ammunition be federally licensed, establishing more restrictive standards than those previously in place. The Act prohibited interstate sale of handguns and long guns except under certain conditions. It also set forth categories of persons to whom firearms or ammunition could not be sold. It prohibited the import of non-sporting firearms and established special penalties for the use of a firearm during the commission of a federal crime.[129]
Although hundreds of amendments to the Act have been proposed since 1968,[130] the first major change in federal firearm regulation was not enacted until November 30, 1993. That Act, The Brady Handgun Violence Prevention Act[131] ("Brady Bill"), was considered a sea-change by gun control activists.[132] The intent of the Brady Bill was to further restrict the ability of criminals and other prohibited individuals to purchase a handgun.[133] The Brady Bill instituted a five-day waiting period between the time the individual seeks to buy a firearm and the time the transaction is completed. During this time, law enforcement officials are required to complete a "reasonable background check" of the potential purchaser.[134]
Since the Brady Bill two notable firearms regulations were presented in Congress. In addition to the proposal and passage of [Page 997] the Violent Crime Control and Law Enforcement Act of 1994 and its ban on assault weapons,[135] some members of Congress proposed a sweeping overhaul of the federal regulatory framework via The Gun Violence Prevention Act ("Brady II").[136]
Brady II was brought to the floor of the House and the Senate as the Brady Bill was taking effect.[137] It proposed the implementation of a handgun registration and licensing system, a limitation on the number of monthly purchases and the sizes of home arsenals, and the required storage of weapons away from juveniles.[138] It also proposed regulating safety in firearm design by mandating child-resistance and other safety standards.[139]
4. The Common Law: Products Liability
The arena of products liability is governed by "three distinct but overlapping theories of liability"¾negligence, warranty, and strict liability.[140] Negligence applies to products as it does in the usual tort law sense.[141] The Uniform Commercial Code establish-[Page 998] es three types of warranties: express warranties;[142] implied warranties of merchantability;[143] and implied warranties of fitness for a particular purpose.[144] Strict liability will apply to "[o]ne who sells any product in a defective condition unreasonably dangerous to the user."[145]
Variations within the strict liability theory occur depending on the type of defect alleged, be it a manufacturing defect, a design defect, or a marketing defect. Manufacturing defects "are inadvertent imperfections that cause products to fail to perform their intended functions."[146] Design defects "are shared by each unit in the product line, causing the products to be generally dangerous."[147] Marketing defects "include failures to instruct regarding proper product use and failures to warn of hidden dangers."[148]
Liability for firearm manufacturers and retailers has been found under all three theories.[149] However, three conceptual problems arise when a plaintiff seeks a remedy under strict liability. First, is there a defect when a firearm is performing as designed? Second, is the person pulling the trigger responsible for the injury, or is the manufacturer responsible? Third, is the victim protected, or only the user of the firearm?[150] These conceptual problems have [Page 999] served to limit the success of claims brought for firearm accidents involving a technically non-defective firearm.[151]
Advocates of more stringent requirements for firearms manufacturers have proposed a number of alternatives, including creating strict liability for manufacturers of certain firearms frequently used in crime,[152] and strict liability for ammunition manufacturers.[153][Page 1000]
D. The Consumer Product Safety Commission
1. Rationale and Authority
The CPSA was signed into law on October 27, 1972.[154] It was based primarily on the findings and recommendations of the National Commission on Product Safety ("NCPS").[155] The NCPS found that industry self- regulation was inadequate and that consumer exposure to unreasonable hazards was excessive.[156] It noted that "competitive marketing imperatives are eye appeal and cost as opposed to safety."[157]
Congress found it "self-evident that the public is entitled to purchase products without subjecting themselves to unreasonable risk of injury or death."[158] To mitigate this unreasonable risk, the CPSA created the Commission.[159] The Commission was designed to assist consumers in evaluating the comparative safety of consumer products, to develop uniform safety standards for consumer products, to minimize conflicting state and local regulations, and to promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries.[160]
The Commission was given the ability to set product standards,[161] ban hazardous substances,[162] and recall products in-[Page 1001] volving substantial hazards.[163] The CPSA gave Federal District Courts broad judicial powers.[164] Citizens could file suit if they were an injured party or were interested in enforcing a standard.[165] The Commission also has broad authority over imports and exports.[166] Because overlapping state, federal, and local regulations could be an impediment to the CPSA's effectiveness, Commission regulations have preemptive authority.[167]
The CPSA also provided the Commission with broad information gathering powers.[168] The Commission's primary data source is the National Electronic Injury Surveillance System ("NEISS").[169] NEISS is the foundation of the National Injury Information Clearinghouse created by section five of the CPSA.[170] The Clearinghouse is charged with conducting studies and investigations of the physical and economic effects of product- related injuries.[171][Page 1002]
2. Example: Cigarette Lighter Safety
In 1993 the Commission implemented a safety standard for cigarette lighters.[172] The process that led to this standard began in 1985, when Diane Denton, a registered nurse practicing in a Louisville, Kentucky children's hospital, petitioned the Commission requesting that disposable butane lighters be made child-resistant.[173] At the time of the petition the Commission had information indicating that 140 lives a year, 125 of those under age five, were lost to fires started by children playing with cigarette lighters.[174]
In 1986 and 1987 the Commission conducted field studies that determined that ninety-six percent of the lighters involved in fires were disposable butane lighters, and that most of the children starting the fires were under age five.[175] In 1987 the Commission conducted test studies to determine the child-resistance of existing disposable cigarette lighters.[176] On December 31, 1987, the Commission voted to grant the petition and posted an advanced notice of proposed rule-making.[177]
The Commission then began to gather relevant product information and coordinate a number of tests to determine baseline acceptability standards.[178] Pursuant to its research, the Commis-[Page 1003] sion published a proposed safety standard on February 16, 1993.[179] The safety standard was enacted on June 12, 1993, to take effect one year later.[180]
3. Why Not Firearms?
Firearms are excluded from the jurisdiction of the Commission by Section 3(1)(E) of the CPSA.[181] William Kimble provides one possible reason for this exclusion:
If the Commission had been unable to reduce the risk of injury by the establishment of a safety standard, it could have declared firearms to be banned hazardous products and excluded them from the market entirely. . . . [I]t was feared that including firearms . . . might run afoul of the Second Amendment.[182]
Michael Lemov notes that certain products, including firearms, were excluded "on the grounds that they were 'now subject to adequate Federal Safety regulation' [and that] Congress 'has yet to determine' if they should 'be subjected to safety regulation of the type envisioned in this bill."'[183]
The result of this distinct treatment for firearms is that the Commission, with its information gathering and performance regulating abilities, is without power to respond to the dangers presented by firearms as it does for other products. Meanwhile, the BATF, the one agency with direct supervision over firearms, is responsible only for the enforcement of existing regulations.[184][Page 1004]
II. ARGUMENT
A. The Context and the Method
1. Context: Addressing the Nature of the Product
As consumer products, firearms have a unique standing within the American marketplace. That standing is founded on the federal and state constitutional provision of a "right of the people to keep and bear Arms."[185] These provisions, interpreted as safeguards against government tyranny, are reinforced by the public's desire to possess weapons as a means of self-defense and to enjoy a way of life characterized by the sporting use of firearms.[186]
In a discussion of automobile safety regulation it was argued that "[t]he private motor car is more than just another 'consumer durable.' . . . That the automobile was, and should be, preeminently a 'freedom machine' [is] not a notion easily tossed aside."[187] To a similar extent a firearm is also valued as a "freedom machine." It is important, then, to be conscious of the values surrounding firearms when structuring a regulatory response aimed at reducing or eliminating the threat to public health that they present.
Gun control opponents tend to view any federal regulation as proceeding farther down a slippery slope toward total destruction of their rights.[188] By addressing only the specific nature of firearms as a consumer product the threat to the public health can be mitigated while respecting the constitutional and cultural values that [Page 1005] surround firearms. If the public need for firearms is considered while addressing the performance failures of the existing product the "right to bear" is not infringed while the quality of what is borne is enhanced.
In relation to the ability of unintended users to gain access to firearms and put them to unintended use, it is clear that firearms, as they are currently designed, are unsafe. Child-play becomes injury and death.[189] Adolescent immaturity, frustration, and dysfunction become arrest, assault, suicide, and homicide.[190] A firearm bought for protection or sport becomes a valued instrument for the commission of crime.[191]
Despite the proliferation of state, local, and federal firearms regulations, their focus on distinguishing between dangerous weapons and dangerous people[192] has failed to protect innocent members of society from ordinary firearms. Criminal sanction for the negligent storage of firearms[193] is effective only to the extent that it may convince other firearm owners to safely secure their weapons. Despite being market-wide in scope, industry efforts to prevent theft, to childproof, personalize, or to provide a safe firearm[194] have had limited success at preventing unintended misuse.
Various problems exist with the common law products liability scheme as it applies to firearms. Civil liability offers only post-injury remedies and enforces safety standards on manufacturers that vary in effectiveness because they are limited by jurisdictional bounds. The absence of federal standards may in fact weaken product liability standards.[195]
Should any state choose to enact mandatory performance standards, they would be limited in effectiveness by their narrow application. The potential for an illegal gun trade from states without such measures would also limit effectiveness. To force uniform industry compliance with such a measure, a large number of states, or a few very populous states, would have to implement similar regulations.[Page 1006]
The problems addressed above parallel the rationale for the enactment of the CPSA.[196] Furthermore, the regulatory model created by the CPSA and utilized on products such as cigarette lighters exemplifies regulation at the federal level that is successful at reducing risks associated with the nature of products as they are designed.[197] By applying the CPSA model to firearms it is possible to envision a federally mandated performance standard that addresses the unreasonable risk associated with firearms.
2. The Method: CPSA Scrutiny
The umbrella standard under which the Commission operates specifies that all of its rules must be "reasonably necessary to prevent or reduce an unreasonable risk of injury."[198] Prior to promulgating a standard the Commission must make "appropriate findings," which include:
(1) the degree and nature of the risk of injury the rule is designed to eliminate or reduce;
(2) the approximate number of consumer products, or types or classes of consumer products, subject to the rule;
(3) the need of the public for the consumer products subject to the rule, and the rule's probable effect on the utility, cost, or availability of such products to meet that need;
(4) any means of achieving the objective of the order while minimizing adverse effects on competition or disruption or dislocation of manufacturing and other commercial practices consistent with public health and safety;
(5) the rule's potential benefits and costs;
(6) any reasonable alternatives to the rule;
(7) significant issues raised by comments;
(8) that the rule (including its effective date) is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product;
(9) that the promulgation of the rule is in the public interest; [Page 1007]
(10) that no other standard would adequately protect the public if the rule declares that the product is a banned hazardous product;
(11) that if a voluntary safety standard has been adopted, compliance with the voluntary standard will not be adequate or there will not be substantial compliance with the voluntary standard;
(12) the benefits of the rule bear a reasonable relationship to its costs; and
(13) the rule imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the rule is being promulgated.[199]
These requirements create a thorough administrative procedure and a detailed framework for analysis of the proposed firearm standard.[200]
This analysis will introduce the requirements of the proposed standard and suggest options for regulatory implementation and enforcement within the federal framework. The proposed standard will then be analyzed against the findings required by the CPSA. Before concluding, the major challenges facing such a proposal will be discussed in detail. Throughout the analysis the recent development and implementation of the safety standard for cigarette lighters will be utilized as analogous administrative precedent for the development of a standard for firearms.
B. The Proposal: Command and Control
1. Detailing the Proposal
In stating the purpose and extent of application of the standard for cigarette lighters, the Commission stated that "[t]hese requirements are intended to make the lighters . . . resistant to successful [Page 1008] operation by children younger than 5 years of age. This standard applies to all disposable and novelty lighters."[201]
The proposed safety standard for firearms has a singular purpose that is achieved by linking two requirements. Its intent is to reduce unintended uses of firearms by unintended users. The proposed standard's requirements are intended to make all firearms resistant to successful operation by children under age five and by individuals who are not the legitimate owner or user.
To achieve these goals, it is necessary that the firearm safety standard contain several performance requirements similar to those created by the Commission for cigarette lighters.[202] The proposed standard would require that:
(a) The mechanism or system of a firearm that makes the product resist successful operation by children must:
i. reset itself automatically after each operation of the triggering mechanism of the firearm;
ii. not impair safe operation of the firearm when in normal use;
iii. be effective for the expected life of the firearm;
iv. not be easily overridden or deactivated by a child under the age of five; and
v. if tampered with, disable the firearm.
(b) The mechanism or system of a firearm that makes the product resist successful operation by anyone who is not the owner of the firearm must:
i. reset itself automatically when the firearm is reloaded;
ii. not impair safe operation of the firearm when in normal use;
iii. be effective for the expected life of the firearm;
iv. not be easily overridden or deactivated;
v. operate only one firearm;[Page 1009]
vi. not be easily discovered; and
i. if tampered with, disable the firearm.
An example of how a modified handgun would perform under this standard provides a mental image of what this proposal demands. Modifications similar to those included in the lemon squeezer may sufficiently childproof a handgun.[203] Added to these modifications, however, would be some form of personalization mechanism. This may consist of a simple key carried by the owner that unlocks the triggering mechanism of the firearm. Thus, to operate such a handgun the user would first have to unlock the personalization mechanism, then apply sufficient pressure to the child-resistance mechanism before pulling the trigger.
The necessity for each of the proposal's requirements deserves explanation. Section (a)(i) is the most important as it provides for a permanently child- resistant firearm. The mechanism must automatically reset after each shot to eliminate the risk that the mechanism can be left disengaged. Like the existing firearm "safeties,"[204] such a risk would reduce the potential benefits of child-resistance in that firearms would still be operable by children when the mechanism is either intentionally or unintentionally left disengaged.
The personalization mechanism, however, functions more like a "safety." Section (b)(i) allows for uninterrupted use of the firearm between reloading. Although this will result in a potential "off" period for the personalization device, it is necessary for the proper functioning of the firearm. The safest option is to require deactivation of the personalization device after every shot. This requires, however, the repeated deactivation of the personalization mechanism. Such a requirement would adversely affect the utility of a firearm.
At the other extreme, the personalization mechanism could be completely elective and only activated by the conscious decision of the user. Like existing safeties, then, personalization would be only an additional feature. Thus, by resetting at reloading or at the user's election, practicality is balanced with safety. The mechanism will allow the owner to keep a firearm for emergencies without having to worry about disengaging the personalization mechanism. If the firearm is stolen while the personalization mechanism is deactivated it could be used, but only until it needed more ammunition.
Sections (a)(ii) and (b)(ii) insure that the mechanisms do not interfere with the intended use of the firearm. This is necessary to insure that the modified firearms are safe for the user and still function as desired. Sections (a)(iii) and (b)(iii) insure that both mechanisms will last as long as the firearm. Sections (a)(iv) and (b)(iv) make certain that neither mechanism can be bypassed by its focus group. This is to prevent "hotwiring" of firearms, whereby the safety devices could be permanently disengaged without affecting the function of the firearm.
Section (b)(v) requires that the method for disengaging the personalization mechanism must be effective only for one firearm. This prevents the foreseeable circumstance in which the key for one type of firearm unlocks all firearms of that type. Like a padlock or the ignition of an automobile, this requirement mandates a combination or key-specific firearm. The child-resistance section does not have this requirement, as one method may be suited for many types of firearms.
Section (b)(vi) requires that the method for disengaging the personalization mechanism, be it a key or a combination, must be difficult to obtain in the event that a firearm is stolen. A receipt, registration, or some other proof of ownership are examples of what can be required before a key copy or combination is issued. Sections (a)(v) and (b)(vii) further guard against possible "hotwiring" of a firearm by requiring that the triggering mechanism be disabled if either mechanism is tampered with.[205]
2. Regulatory and Enforcement Alternatives
This proposal could be implemented in at least two ways. Firearms could be brought into the jurisdiction of the Commission with a proviso that they would not be labelled as barred hazardous substances. This alternative was presented to Congress in 1991 within the Gun Safety Act.[206] The Act was referred to the Com-[Page 1011] mittee on Commerce, Science, and Transportation, but was not enacted.[207]
The regulation of automobile safety provides another regulatory model. Although automobiles in a generic sense are consumer products, Congress regulates their safety through a distinct entity¾The National Highway and Traffic Safety Administration ("NHTSA"). Formed pursuant to the enactment of the National Traffic and Motor Vehicle Safety Act,[208] the NHTSA is a structural predecessor of the Commission.[209] The NHTSA was required to establish "appropriate federal motor vehicle safety standards." [210] It implemented a system of studying automobile accidents and made it an offense to offer for sale or introduce into interstate commerce any non-conforming vehicle.[211] NHTSA standards were also to be minimum performance standards.[212]
Thus, at least two regulatory alternatives are available. Firearms could be included in the multi-subject jurisdiction of the CPSA, with limitations on the Commission preventing it from banning firearms. On the other hand, a single- subject regulatory agency similar to the NHTSA could be empowered with oversight of firearm safety. The parallel structures of Commission and NHTSA authority serve as an effective federal regulatory model for the improvement of firearm safety.
C. CPSA: Required Findings
1. Degree and Nature of the Risk of Injury
The Commission noted that the cigarette lighter safety standard was "designed to reduce the risk of death and injury from acciden-[Page 1012] tal fires started by children playing with lighters."[213] The Commission cited the annual amount of property damage, the number of lives lost, and the number of injuries caused by these fires.[214] Injuries included thermal burns, anoxia, and others that were less serious.[215] The Commission concluded that "[f]ires started by young children (under age 5) are those which the standard would be most effective at reducing."[216]
The nature of the risk the proposed firearm safety standard intends to reduce is the risk of death and injury from accidental shootings caused by young children playing with firearms, the risk created by the availability of firearms for accidental misuse or for use in suicide and crime by adolescents, and the risk created by the availability of stolen firearms for use in crime.
Roughly 500 children and teenagers die each year from accidental firearm discharges, while perhaps five times that many are injured.[217] The annual suicide rate for adolescents is around 1,500, with the vast majority of these involving a firearm.[218] Adolescent possession of firearms has also resulted in violent death in schools, increased arrests for firearm possession, and increased juvenile firearm homicide.[219] Approximately 500,000 firearms a year are stolen in robberies of homes and commercial operations and many of these are used in crime.[220] These unintended uses by unintended users also result in hundreds of millions of dollars of costs each year.[221]
The degree to which these risks would be reduced will depend on many factors. Modified firearms would initially compose only a small percentage of the total firearm market.[222] Although the initial percentage of the total market occupied by the modified firearms would be small, it would still represent millions of firearms. Factored into this will be the effective success rate of the firearms [Page 1013] designed under the specifications of this standard. Even assuming that the child-resistant firearms, as with the cigarette lighters, would have an eighty-five percent child-resistance rate,[223] the yearly reduction of death and injury would increase along with the increasing percentage of safer firearms in the market. In time, when the vast majority of firearms in the market are child-resistant, the number of accidents involving children will begin to be reduced by up to eighty-five percent.
With the personalization mechanism the degree of reduction is more difficult to estimate. If the mechanism were completely resistant to use by anyone who does not possess the means for disengaging it, then success will depend on such factors as the number of times the device is activated between reloading, the difficulty of acquiring the method for deactivation, in addition to the percentage of the market held by the safer weapons. Again, the initial reduction would be small. It would increase over time, however, with the introduction of the safe firearms.
2. Number and Type of Consumer Products to be Regulated
The Commission noted that the cigarette lighter standard covers "certain flame-producing devices . . . primarily intended for use in lighting cigarettes and other smoking materials."[224] Lighters subject to the rule are gas-or liquid-fueled, mechanical or electric, and of various physical configurations.[225] Six hundred million are sold each year, with 100 million in use at any given time. Ninety-five percent are pocket-sized disposable butane lighters, while the other five percent are mostly pocket- sized refillable butane lighters.[226] Thirty million households have at least one, while ownership of more than one is typical in most households, especially those with smokers.[227]
All types and classes of firearms produced after the implementation of the proposal would be subject to the performance standard. Depending on the market, anywhere from 3 to 5.7 million firearms are produced each year, with an annual industry average since 1973 of 4.5 million.[228] In 1994, the most recent year with [Page 1014] comprehensive production figures, domestic firearm manufacturers produced almost 2.6 million handguns and approximately 2.5 million rifles and shotguns.[229] Half of all American households own a firearm, with an average of 4.1 firearms in each of these homes.[230]
3. Public Need for the Product
In analyzing the public need for cigarette lighters, the Commission noted that "[c]onsumers use lighters primarily to light smoking materials."[231] It was also noted that lighters fulfill the same need filled by matches, and that disposable butane lighters are the closest substitute for matches because of their convenience and low price.[232] The Commission found that since the 1960s lighters have steadily replaced matches as the product preferred by American consumers.[233]
Legitimate consumer needs served by firearms include sport, collection, and self-defense. For members of the public who own firearms as a safeguard against government tyranny, there is no substitute. Some sporting needs could be met by cross-bows or non-powder firearms. It is unlikely, however, that the consumer demand for firearms used in sport would be totally replaced. Similarly, it is unlikely that consumers who choose firearms for self-defense would choose to protect themselves instead with stun-guns, pepper mace, or any other similar products. Firearms produced under the proposed standard may be valued as much as collectibles as those currently in production, thus that need will likely be unaffected.
4. Effects of Proposed Standard
In addressing the effects of its standard on the utility of cigarette lighters, the Commission noted that performance modifications would require "additional-action switches, levers, or buttons, thereby increasing the difficulty of product activation."[234] The Commission noted that, depending on the method chosen by the manu-[Page 1015] facturer, the result may be increased difficulty of use by adults.[235] This, it was noted, would reduce effectiveness of the standard because some users would rely on matches instead.[236] It was also recognized that some types of lighters would be discontinued.[237]
The Commission recognized that in order to implement the mandated modifications, cigarette lighter manufacturers would be faced with expenses in areas such as "research and development, product redesign, tooling and assembly process changes, certification and testing, and other administrative activities."[238] It was estimated that "[t]otal per unit cost/production costs for the various lighter types may increase by . . . an average of less than 20 percent."[239] The Commission noted that these costs would be borne by the manufacturer and passed off to the consumer in the form of higher retail prices.[240]
Despite these problems, the Commission determined that the cost increase would be well offset by the benefits, that a wide range of lighters would still be available, and that those models that were discontinued would not have a significant impact on what is available to serve the consumer need.[241]
The relative sophistication of the technology used to achieve the proposed standard for firearms would have varying effects on the utility that is necessary to meet the consumer need. The challenge for manufacturers will be to present a product that satisfies the requirements of the proposed standard in a low-cost manner and with as little effect on the utility of the weapon as possible.
Suggestions for low-tech personalization mechanisms include combination or push-button locking devices,[242] automatic locks,[243] or locks with keys. Low-tech child-resistance measures [Page 1016] may include dual-action requirements such as those of the lemon squeezer, built-in trigger guards suited for adult hands, or trigger-pull requirements beyond the strength of children.[244]
Suggestions for high-tech personalization devices have included palm-print activation devices[245] and computer chips or voice recognition devices.[246] Similar measures could be implemented to make the product child- resistant. Low-tech modifications would certainly make the use of the firearm more cumbersome. High-tech alterations may also decrease ease of use, but potentially to a lesser extent.
The ease of use of firearms, however, is exactly the problem that results in the unintended misuses documented above. If firearms are made more cumbersome it is a sacrifice that must be made to increase safety. This added difficulty should only be considered to the extent that it may render the firearm completely unusable for its intended use. Leaving the design to the manufacturer will likely ensure that ease of use is a primary consideration in the modification.
Regardless of the specific design modification chosen by manufacturers, the cost of producing firearms subject to this proposal will be higher than those produced now. High-tech alternatives may be simpler to use, but may prove to be too expensive for some consumers.[247] As with cigarette lighters, manufacturers' costs would be passed on to consumers in the form of higher retail prices. These increased per unit costs should be viewed as an internalization of the costs of lives lost and health care dollars spent because of unintended consequences¾albeit at a lesser rate. [248][Page 1017]
It is also likely that some firearms unable to incorporate these modifications would be discontinued. Some handguns are dangerous as manufactured because of delicate triggering mechanisms.[249] Nonetheless, a large variety of firearms will likely remain available under the proposed safety standard.
5. Reasonable Necessity of the Standard
The Commission noted that research on cigarette lighters "demonstrate[d] that lighters covered by the standard pose an unreasonable risk of death and injury to consumers."[250] The Commission allowed cigarette lighter manufacturers one year before the new standard became effective. It did so to "provide manufacturers and importers . . . adequate time to design, produce, and market safer lighters."[251] Fearing that manufacturers would increase production of cigarette lighters before the standard's effective date, the Commission also provided a safeguard against stockpiling.[252]
It would also be necessary to include such measures and safeguards within the proposed firearm safety standard. Design modifications and testing procedures of the magnitude required by the proposed standard would certainly take time, as would refitting the production process and marketing the safer firearms. Firearm manufacturers should be given sufficient time to carefully develop the necessary modifications, implement the production changes, and market the redesigned products to the public. This process could be supplemented by cooperation in testing and design by the regulatory body overseeing the standard's implementation. One year may be adequate, but further study of the manufacturing process and the needs of producers would be necessary to determine the effective date.
Stockpiling should be guarded against in this proposal as well. Firearm production statistics show production increases of approxi-[Page 1018] mately two million firearms between 1992 and 1993.[253] Thus, the potential exists for substantial increases in production in response to a regulation such as this that would significantly alter the product. If a comfortable baseline for production was established, perhaps at industry average over the previous five or ten years, it would prevent manufacturers from overproducing the more dangerous and less expensive firearms and adding these to the existing supply.
The research conducted into the unintended uses of firearms by unintended users documents the extent of the unreasonable risk posed by firearms as they are currently designed. This risk parallels that presented by other products before the enactment of the CPSA.[254] It is reasonable to assume that consumers are aware of the risks associated with firearm ownership. These risks rise to the level of unreasonableness as consumers may not be able to comprehend the damage done to society by the frequency and severity of unintended misuses of firearms. Although the firearms industry provides methods to cope with this risk in the form of add-on trigger locks or gun safes,[255] these methods are not employed to the extent needed to avoid significant costs to society. Consumers may be willing to pay the price that would be associated with reducing or eliminating the risk by adding child- resistance and personalization features to firearms.
When a loaded firearm is left within reach of children, whether or not its safety is engaged, there is little that stands in the way of the risk being realized. If a firearm is not kept in a lock box or guarded by a trigger lock, there is nothing in the design of a firearm that prevents an adolescent or a thief from taking possession of the weapon and putting it to ill use. These risks make it apparent that it is reasonably necessary that firearms should have greater safety included in their design.[Page 1019]
6. Cost-Benefit
The Commission concluded that the benefit derived from the cigarette lighter standard "strikes the most reasonable balance between risk reduction benefits and potential costs."[256] The Commission estimated that the $385 million annual loss in lives, injuries, and property would be reduced by $205-270 million, evidencing a net gain of between $115-180 after factoring in the increased consumer cost.[257] The Commission estimated that there would be a fifteen to twenty percent per unit price increase for cigarette lighters. [258] At that rate, it was estimated that the total annual increase in cost to consumers would be $90 million, for less than a $1 million cost per life saved.[259]
It should be noted that the cost of creating that savings would be born substantially by the consumers of cigarette lighters, those benefitting from their ease of use. The same can be said of the costs of the proposed firearm safety standard. Those bearing the burden of the increased cost will be those benefitting from the use of the product. In this way the regulation shifts the burden from those affected by unintended use to those whose needs are served by the product.
A cost-benefit analysis of a standard requiring personalization and child- resistance of firearms is hindered by several variables. These variables form a complex equation that defies any simple explanation of costs and benefits. On the cost side, it is difficult to determine how much the retail price of firearms would be increased. It can be assumed that firearm manufacturers will likely pass the increased prices of research, development, manufacture, and marketing along to the consumer in the form of higher retail prices. However, without further research into these costs, the best that can be managed is only an estimate of the per unit percentage increase.
Between 1973 and 1994 an average of 4.5 million firearms were introduced into the market each year.[260] Using a price of $500.00 per unit, which represents the median price of the hand-[Page 1020] gun, rifle, and shotgun prices cited above, [261] and an assumed price increase of twenty percent, [262] the increased cost to consumers would be $430 million in an average year.
There are even more variables on the benefit side of the analysis. The annual benefit to society will be measured by the effective rate at which the design improvements reduce unintended misuses, and the percentage of the market composed of these safer firearms. This effective rate is the combined actual rates of reduction for the child-proofing and personalization mechanisms. As noted, the actual rate of reduction for the child-proofing mechanism may be fixed (for example, at complete resistance to eighty-five percent of a child test panel;[263] while the actual rate of reduction for the personalization mechanism will largely depend on consumer behavior (for example, modified firearms may be personalized forty percent of the time). The percentage of the market occupied by the safer firearms will depend on their annual sales and the amount of older weapons removed from the supply.
The market percentage may be an unreliable variable as overall benefit may be more accurately gauged by the percentage of households with safer weapons. If the fifty percent ownership rate remains constant, as it has over the last forty years,[264] then the safer firearms will likely result in a growing percentage of safer households. Some households, however, will be adding a safer firearm to an arsenal of unsafe weapons. The new households that choose as their first firearm a personalized and child-resistant firearm, however, will have only safe firearms. Thus, the risk reduction in some households will be closer to the effective rate of the safer firearms, while the risk reduction in others will be less significant.
The benefits to society would be measured by reducing the annual cost to society of firearm violence, estimated in 1985 at $750 million for some unintended uses,[265] by the overall reduction rate. In an average year the increased consumer cost of $430 [Page 1021] million would be subtracted from the monetary benefit achieved by the effective reduction rate to determine the net gain to society.
7. Alternatives
The Commission considered the merits of many alternative solutions to the cigarette lighter problem throughout its decision making process. It decided against allowing for a voluntary standard, worked to insure that the standard was the least burdensome requirement on industry and consumers, studied different performance and test requirements, considered different definitions for the scope of the standard, and worked to minimize effects on competition and business practices.[266] The Commission incorporated some alternatives into its standard and concluded that none of the other alternatives "would have higher expected net benefits than the [final] standard."[267]
This analysis of alternatives to the personalization and child-resistance standard will consist of a discussion of any reasonable alternatives, and any alternative means of implementing the standard that minimizes effects on competition, manufacture, and commercial practices. The analysis will also consider whether the rule imposes the least burdensome requirement that adequately reduces the risk.
One alternative to this proposal relates to scope. As presented, this proposal covers all firearm makes, models, and classes. It is necessary for this standard to cover all types of firearms in order to achieve maximum effectiveness. While one type of firearm may be less frequently misused in a particular manner, it may be more frequently misused in another fashion. For example, the primary weapon used in crime and suicide is the handgun.[268] Nonetheless, shotguns and rifles still account for a significant percentage of these misuses. Thus, the highest possible effective reduction rate of unintended uses is achieved by including all types of firearms.
Another alternative in scope would be to require only one of the safety features. Minimizing the effect of the proposed standard to include only childproofing would certainly begin to reduce the number of lost lives every year, but a vast number of unintended uses would persist. By just personalizing firearms, many unintended uses would be avoided, but the danger would still remain for children who may gain access to firearms with the personalization mechanism deactivated.
Additional features could be added to the standard to further improve firearm safety. Requiring a load indicator would be another method of reducing accidental deaths and injuries in adults. A load indicator would make it clearly visible to the handler of the firearm that the firearm is loaded. This alternative requirement was presented to Congress as part of Brady II.[269] The study conducted for that act determined that load indicators may avert up to two-thirds of all accidental firearm injuries and deaths, as many of them occur when the user is not aware that the weapon is loaded.[270]
The proposed standard sets the child-resistance limit at five years of age.[271] This age was chosen in part because accidents involving children that age or younger are a result of children playing with weapons.[272] In a recent study comparing the hand strength of children to their mothers, it was found that at age five children begin to develop more substantial strength.[273] The study noted that the average handgun requires less than ten pounds of pressure to pull its trigger.[274] With children using two fingers and their mothers using one, it was found that twenty-five percent of three to four year-olds, seventy percent of five to six year-olds, and ninety percent of seven to eight year-olds could operate a trigger with ten pounds of resistance, while ninety five percent of the mothers could do the same.[275]
Another factor in setting the five-year-old limit was the experience of the Commission in establishing the standard for cigarette lighters. In doing so, they realized that the older the child is the [Page 1023] more difficult it is to create an effective child-resistance standard.[276] Raising that age limit would necessarily increase the burdens on manufacturers by requiring that the child-resistant devices be more complicated. Conversely, lowering that standard would likely fail to create significant benefits. [277]
Should the child-resistance and personalization aspects of this proposal be left to firearm manufacturers to conform with via a voluntary standard, it is likely that the problems identified would be similar to those noted by the Commission in relation to cigarette lighter manufacturers. The Commission was primarily concerned that the level of conformance with a voluntary standard would be unacceptable.[278] Even allowing for generous estimates of industry compliance, the Commission noted that reliance on a voluntary standard would not "adequately reduce the unreasonable risk associated with lighters."[279]
It is important to consider the effects that a mandatory standard would have on competition, manufacturing, and existing commercial practices of firearm manufacturers. With a particular focus on small businesses that would be affected by the cigarette lighter standard,[280] the Commission "adopted (alternatives) if they would not reduce the expected annual net benefits of the rule."[281] The proposed standard for firearms would have a significant impact on the existing manufacturing process, commercial practices, and competitive nature of the industry. By creating the performance standards detailed above, but leaving the details of the modification to the manufacturers, the incentive will be in place for manufacturers to solve the problem at the least cost to themselves, and extending that least-cost solution to consumers in the way of the minimum increase in retail price. Different manufacturers could then develop different solutions to the same problem, allowing for retail sales competition to define what is the most desired modification by the consumer.[Page 1024]
However, some manufacturers, especially the smaller firms, would likely fall behind in such an open race. Because of this, the implementation of the proposed standard should be conducted in such a way so as to minimize the impact on the more sensitive elements of the industry. Be it managed by the Commission or a similar regulatory body, the transition would best be accomplished by industry-administration cooperation. When it developed the standard for cigarette lighters, the Commission conducted all of the testing needed to establish the standards. If one solution is found that best satisfies the requirements of the standard, government licensing of the successful design patent would minimize the impact on small firearm manufacturers.
D. Addressing the Challenges
Several problems with the proposal remain that were not discussed in sufficient detail above. Primary among these is the problem of the approximately 230 million unsafe firearms already in circulation. One commentator noted that "[i]mplicitly, any curb on the production of weapons likely would prove fruitless as a short-term solution to the supply of guns on the street."[282] Similarly, any improvement in the performance of firearms would be faced by the challenge presented by the existing supply of firearms that do not perform as safely. Assuming that obsolescence would have a minimal effect on the existing supply of firearms, and that the amount of firearms produced would reflect the recent industry average, this proposal would result in a market composed of only small percentage of safer firearms. With 230 million unsafe weapons, less than two percent of the market would be composed of safer firearms provided that the first year's production reflected the industry average of 4.3 million.
One solution to this problem that is within the power of both the Commission and the NTHSA is the product recall option. Such an option creates problems like those faced by the drafters of the CPSA when choosing to exempt firearms. Declaring all existing firearms defective and subjecting them to a recall order would result in enormous political and logistical problems. These problems would likely prove so significant as to make such an option completely impracticable.[Page 1025]
It would be better to provide for retro-fitting or destruction of unsafe firearms at the election of the owner. Federal, state, or local governments could provide for destruction of the more dangerous weapons. Some municipalities have used gun buy-back programs, with varying success, to remove weapons from circulation in an effort to decrease crime.[283] Additionally, manufacturers and gun-smiths could provide for the permanent addition of child-resistance and personalization devices to previously manufactured weapons. These approaches may hasten the removal of unsafe weapons from the market.
The most practicable and workable long-term solution is to create safer firearms and be patient. Considering the usable life of a firearm,[284] it is likely that relying on obsolescence alone would take anywhere from twenty to fifty years to reach a substantial reduction of the volume of the more dangerous weapons. Consumer behavior and incentive programs could accelerate this decrease. Because an average of 4.3 million new firearms are produced every year, the immediate impact of the introduction of safer firearms would still be substantial. With the proposed standard in place, time would be on the side of the safer firearms.
As mentioned above, there is the possibility that the safer firearms would have a greater impact than is measured by their market percentage. Because half of American households own a firearm, and because that number has remained relatively constant, some households would be adding a safer firearm to a collection of unsafe firearms, while other households would possess only a safer firearm. Potentially, then, the number of households owning an unsafe firearm would remain the same, while the number of households owning safer firearms would increase over time.
Certainly, there are foreseeable problems with the consumer reaction to firearms produced under the proposed standard. Dr. Christoffel has noted that a sense of safety may breed carelessness.[285] Thus, the effective reduction rate of the safer firearms [Page 1026] may be reduced by a greater number of consumers choosing to leave their weapons loaded or otherwise relaxing their guard around firearms. Consumers may also want to disengage both protective measures if they felt they were unnecessary.[286] Thus, the requirement that the mechanisms be difficult or impossible to disengage is essential.
The standard also provides that the personalization mechanism can be left disengaged between reloading. While this is necessary to allow for necessary functioning of the firearm during use, it presents some problems. Although the child-resistant mechanism should remain engaged after every use, children able to circumvent the childproofing feature would then have access to a firearm able to discharge. Adolescents and criminals would certainly be able to operate a weapon with the personalization feature left disengaged and be able to use it until the ammunition runs out. Thus, the proposed standard still requires consumers to use firearms in a responsible fashion.
CONCLUSION
The place firearms occupy within the American marketplace, in quantity, function, and mystique, has created a tragic and violent conundrum. Any solution is likely to be complicated and problematic. This proposed solution is no different. Firearms are a peculiar consumer good in that they are specifically mentioned in the Constitution, meet certain consumer needs for which they alone are suitable, yet remain available for use by any individual for any purpose. This peculiar nature results in a substantial and unreasonable risk to the public health. A significant measure of this unreasonable risk can be reduced by requiring that all firearms are child-resistant and personalized. Mandatory performance requirements may be a workable approach to improving firearm safety. By respecting the cultural values that surround firearms and the consumer needs satisfied by firearms, the CPSA approach allows consumers to use firearms for their intended purpose albeit with potentially greater difficulty. This approach, however, begins to eliminate the numerous tragic deaths and injuries that result from firearm misuse by children, adolescents and criminals. Obvious problems remain, [Page 1027] but the nature and gravity of the tragedy that unfolds in our society on a daily basis must be addressed. If not, we can expect more of the same: child-play becomes death; adolescent depression and dysfunction become suicide, homicide, and violent crime; easy access becomes criminal use. The problem-solving model utilized to great effect by the Commission presents one method of reducing that damage.
JAMES T. DIXON
[Page 1028]
Sources: See Ann Y. Smith, Shooting Industry Market Trend Analysis,
TABLE 1: DOMESTIC FIREARM MARKET ANALYSIS
Year
Handguns
Rifles
Shotguns
Total Produced
Export #
Export %
Import
Total
1973
1,734,154
1,836,730
1,271,428
4,842,312
287,920
5.8%
859,000
5,422,392
1974
1,714,989
2,104,650
1,803,240
5,622,879
336,685
6.0%
1,113,000
6,399,194
1975
2,023,601
2,126,470
1,595,053
5,745,124
421,510
7.3%
793,000
6,116,614
1976
1,832,785
2,112,022
1,336,858
5,281,665
482,608
9.1%
918,000
5,717,057
1977
1,879,645
1,932,773
1,225,043
5,037,461
555,480
11.0%
751,000
5,232,981
1978
1,877,077
1,787,591
1,195,876
4,860,554
514,422
11.1%
1,040,000
5,359,132
1979
2,124,280
1,876,470
1,319,510
5,320,260
515,009
9.7%
886,000
5,691,251
1980
2,369,643
1,936,078
1,339,410
5,645,131
517,374
9.2%
754,000
5,882,757
1981
2,537,299
1,680,945
1,155,567
5,373,741
588,703
11.0%
690,000
5,475,038
1982
2,628,623
1,622,890
878,568
5,130,081
445,621
8.7%
665,000
5,349,460
1983
1,966,836
1,109,830
959,663
4,036,329
793,106
19.6%
838,000
4,081,223
1984
1,580,551
957,518
772,993
3,311,062
265,750
8.0%
774,000
3,819,312
1985
1,550,071
1,140,669
769,505
3,460,245
183,461
5.3%
697,000
3,973,784
1986
1,427,627
970,541
641,482
3,039,650
216,714
7.1%
701,000
3,523,936
1987
1,658,832
1,006,100
857,949
3,522,881
241,958
6.9%
1,064,000
4,344,923
1988
1,745,722
1,144,707
928,070
3,818,499
254,454
6.7%
1,277,000
4,841,045
1989
2,031,425
1,407,317
935,541
4,374,283
259,303
5.9%
1,007,000
5,121,980
1990
1,838,895
1,156,213
848,948
3,844,056
353,927
9.2%
845,000
4,335,129
1991
1,838,266
883,482
828,426
3,550,174
398,432
11.2%
1,009,000
4,160,742
1992
1,525,218
676,808
805,761
3,007,787
295,370
9.8%
583,000
3,295,417
1993
2,655,478
1,171,872
1,148,939
4,976,844
412,942
8.3%
*863,200
5,427,102
1994
2,581,961
1,324,240
1,254,926
5,161,127
401,253
7.8%
*863,200
5,626,291
Total
43,122,908
31,965,916
23,872,756
98,961,580
8,756,785
8.8%
18,990,400
109,330,254
Avg,
1,960,132
1,452,996
1,085,125
4,498,254
398,036
8.8%
863,200
4,969,557
SHOOTING INDUSTRY, Dec. 1993 at 144; Russ Thurman, Firearms
Business Analysis, SHOOTING INDUSTRY, June 1996 at 54.[Page 1029]
Source: Lois A. Fingerhut, U.S. DEP'S OF HEALTH AND HUMAN
TABLE 2: UNINTENTIONAL FIREARM FATALITIES
Age
1985
1986
1987
1988
1989
1990
1-4
41
31
36
41
38
31
5-9
58
97
66
51
59
56
10-14
177
143
144
185
172
146
15-19
241
238
220
266
294
305
Totals
517
509
466
543
563
538
SERVICES, FIREARM MORTALITY AMONG CHILDREN, YOUTH, AND
YOUNG ADULTS 1-34 YEARS OF AGE, TRENDS AND CURRENT STATUS:
UNITED STATES, 1985-1990, 13-14 (Mar. 23, 1993).[Page 1030]
Source: 1994 DATA BOOK, supra note 77, at 205, no. 316.
TABLE 3: JUVENILE WEAPONS LAW VIOLATIONS
Annual Violations
Percent Increase from Prior Reading
Year
Number
1970
1980
1990
1970
17,111
--
--
--
1980
21,203
124%
--
--
1990
33,123
194%
156%
--
1992
49,907
291%
235%
151%
Source: LOIS A FINGERHUT & JOEL C. HEINMAN, U.S DEP'T OF
TABLE 4. UNITED STATES POPULATION, IN THOUSANDS
Age
1970
1980
1985
All Ages
203,212
226,545
238,741
1-19
73,484
68,925
66,743
1-4
13,669
12,815
14,268
5-9
19,956
16,700
16,822
10-14
20,789
18,242
17,101
15-19
19,070
21,168
18,552
HEALTH AND HUMAN SERVICES, TRENDS AND CURRENT STATUS IN
CHILDHOOD MORTALITY, UNITED STATES 1990-1985, 1, (1989).
1. See Carl T. Bogus, Race, Riots, and Guns, 66 S. CAL. L. REV. 1365, 1386-87 (1993).2. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 854 (1986).
3. See 26 U.S.C. § 5845(a)-(f) (1994). For more detailed definitions of these types of firearms, see 18 U.S.C. § 921 (1994).
4. This is not to minimize the fact that firearms may be purchased for misuse (i.e., suicide, murder, and other crimes). As these potential misuses are defined by the intent of the owner of the firearm, they are not likely to be avoided by child-resistant or personalized firearms. Thus, strategies for preventing these misuses are beyond the scope of this Note.
5. Donald Baer et al., Guns, U.S. NEWS & WORLD REP., May 8, 1989, at 20, 22. For an insight into the thinking of individuals and groups who possess weapons primarily out of fear of government, see Daniel Voll, The Right to Bear Sorrow; Gun Control Opponents and Accidental Shootings, ESQUIRE, Mar. 1995, at 79, 79-82 (interviewing members of Florida and Montana militia groups).
6. See, e.g., David Beard, Death of a Secret, FORT LAUDERDALE SUN-SENTINEL, Oct. 20, 1995, at A1 (detailing the story of a man who confessed after 15 years to using a shotgun to kill his parents in order to claim his inheritance).
7. See, e.g., ERIK LARSON, LETHAL PASSAGE: HOW THE TRAVELS OF A SINGLE HANDGUN EXPOSE THEROOTS OF AMERICA'S GUN CRISIS (1994) (telling the story of a 16-year-old Virginia boy who acquired a semi-automatic handgun and used it to kill one of his teachers and gravely wound another).
8. See Steve Jensen, Charges Dropped in Fatal Shooting, HARTFORD COURANT, Jan. 31, 1996, at B5 (reporting why charges were dropped against the mother of an eight-year-old who shot his six-year-old brother. The boys were looking for candy in their mother's room when they found a loaded .38-caliber revolver on the dresser); Ira Berkow, An Athlete Is Dead at 17 and No One Can Say Why, N.Y. TIMES, Oct. 1, 1995, § 8 at 1 (reporting on the suicide of a seemingly untroubled high school athlete in Lewiston, Maine, who shot himself with his father's .22 caliber handgun).
9. See Wayne H. Wink, Jr., Biting the Bullet: Two Proposals to Stem the Tide of Gun Violence, 10 St. JOHN'S J. LEGAL JOURNAL. 235, 238 n.20 (1994); Jonathan I. Groner, Does the Violence Stop This Way? PLAIN DEALER (Cleveland), Dec. 11, 1995, at 9B; Linnet Myers, Swiss Live with Guns, But We Can't: Murder Rates in U.S. Far Exceed Europe's, CHI. TRIB., Nov. 22, 1995, at A14; Dan Walters, Attacking the Wrong Factor, SACRAMENTO BEE, Aug. 22, 1995, at A3.
10. See Kurt F. Kluin, Note, Gun Control: Is it a Legal and Effective Means of Controlling Firearms in the United States? 21 WASHBURN L.J., 254, 255 n.92 (1982) (citing a 1975 study reporting 90 to 200 million firearms in circulation, a 1976 study reporting 136 million, and a 1979 study reporting 210 to 220 million).
11. See infra notes 122-39 and accompanying text (discussing the federal regulatory framework).
12. 139 CONG. REC. S16,931 (daily ed. Nov. 3, 1993). Senator Moynihan recalled that as a Naval officer in the 1940s, he was issued a Colt .45 caliber sidearm made in 1911. See id. He has since noted that "[u]se of weapons 35 or even 50 years old has been common in our Armed Forces." 141 CONG. REC. S3905 (daily ed. Mar. 14, 1995); see also, GEORGE D. NEWTON, JR. & FRANKLIN E. ZIMRING, FIREARMS AND VIOLENCE IN AMERICAN LIFE 3, 5 (1970) (noting that the usable life of a firearm is best measured by the number of rounds it is able to fire, which for some is near 10,000).
13. See Guns in America; Home on the Range, ECONOMIST, Mar. 26, 1994, at 23, 23.
14. See Brooks Egerton, In Connecticut's "Gun Valley", Industry Becomes the Focus of Anti-Crime Debate, DALLAS MORNING NEWS, Feb. 6, 1994, at B4 (noting that Colt, Winchester, Mossberg, Marlin, and Smith & Wesson manufacture within a short distance of Hartford).
15. See Ann Y. Smith, Industry in Review, SHOOTING INDUSTRY, Dec. 1992, at 102 (noting the BATF record keeping and the one-year delay in reporting these statistics); see also Alcohol, Tobacco Products and Firearms, 27 C.F.R. S 178.123 (1996) (containing the current monitoring regulation).
16. See NEWTON & ZIMRING, supra note 12, at 6. Those researchers could do no better than average an estimate of firearm ownership from opinion polls with a calculation of firearms produced since 1899. They did take into account an estimation of military issue firearms then in civilian hands and the likelihood of unreported imports. See id. at 6.
17. See Table 1. Domestic Firearm Market Analysis, infra p. 1024 (hereinafter Market Analysis).
18. See id.
19. See id.
20. Thus, 4,750,000 for the years 1969-1972, 1995-1996, for a total of 28,500,000. See id.
21. See id. Again, this is only an estimate, as it relies on estimates for a number of years and prior unsophisticated samplings. It also does not accurately account for obsolescence, among other factors.
22. See Guns in America, supra note 13, at 23.
23. See id.
24. See id.
25. Three changes served to alter the landscape of firearms distribution: (1) President Clinton's Executive Order of August 11, 1993, requiring additional paper-work, fingerprints, and photographs to obtain a license; (2) implementation of the Brady Bill on November 29, 1993, with a $200 fee for a three-year license and a $90 fee for a three-year extension; and (3) passage of the crime bill in September of 1994, which codified the earlier executive order. See FFLs Plummet to 10-Year Low: Federal Firearm License, SHOOTING INDUSTRY, Mar. 1995, at 10.
26. See id.
27. See id. (noting that for over 25 years there have been only 20,000 to 24,000 legitimate dealers, and that renewals have been averaging only 10%).
28. See Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. REV. 57, 59 n.4 (1995). This figure represents a 10 year average of production (adjusted for imports and exports) plus used gun sales (estimated at 50% of all sales); see also 58 FED. REG. 43,524 (1990).
29. See id., at 59.
30. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CRIMINAL VICTIMIZATION IN THE UNITED STATES (1993).
31. See Philip J. Cook et al., Regulating Gun Markets, 86 J. CRIM. L. 59, 81 (1995).
32. See Kluin, supra note 10, at 255 n.96 (citing a 1959 Gallup Poll reporting that 49% of American households owned one or more firearms and a 1973 National Opinion Research Center Poll reporting that 47% owned one or more).
33. Prices as listed on March 14, 1996 at Atlantic Gun & Tackle, 5425 Northfield Road, Bedford, Ohio.
34. See id.
35. See id.
36. See id.; see also GUN DIGEST 1996 (Ken Warner ed., 1996) (listing prices for various makes and models of firearms).
37. See Lori Montgomery, NRA Alters Aim, and its Targets, in a Slow Revolt, SEATTLE TIMES, May 21, 1995, at A3.
38. See Alan Farnham, A Bang That's Worth Ten Billion Bucks, FORTUNE, Mar. 9, 1992, at 80 (providing a general description of the hunting industry).
39. See Russ Thurman, Industry Suffers Sales Slump, SHOOTING INDUSTRY, May 1995, at 62 (reporting sales 25% to 35% below projection).
40. Id.
41. Pub. L. No. 103-322, 108 Stat. 1796 (1994) (codified in relevant part at 18 U.S.C SS 921(a)(30)(A)-(D), 922(v) (1994)).
42. See 18 U.S.C S 921(a).
43. 60 Minutes: What Assault Weapons Ban? (CBS television broadcast, Feb. 5, 1995); see also David A. Markiewicz, Gun Ban Triggers Higher Prices, DETROIT NEWS, Oct. 6, 1994, at E1, E1 (quoting a gun retailer who noted that "people have been buying . . . (assault weapons) up ever since it looked like the (crime) bill would pass").
44. See Mark Udulutch, Note, The Constitutional Implications of Gun Control and Several Realistic Gun Control Proposals, 17 AM. J. CRIM. L. 19, 21 n.14 (1989) (detailing three advertisements placed by the National Rifle Association ("NRA") capitalizing on fear of crime).
45. See Bogus, supra note 1, at 1365, 1386 n.148.
46. See Timothy Egan, After the Riots; Los Angeles Riots Spurring Big Rise in Sales of Guns, N.Y. TIMES, May 14, 1992, at A1 (noting the increased volume of sales in California and other states); see also Market Analysis, infra p. 1024 (citing increased production in the years following the riots).
47. See Erik Eckholm, The Riots Bring a Rush to Arm and New Debate, N.Y. TIMES, May 17, 1992, S 4 at 18 (detailing advertisements placed by firearm distributors); Bogus, supra note 1, at 1365 n.3 (detailing similar advertisements placed by the NRA).
48. See Thomas Hargrove, Focus on Stopping Violence, ATLANTA J. AND CONST., Nov. 22, 1995, at A4 (detailing the "right-to-carry reforms" movement led by the NRA and its success during the 1995 legislative season).
49. Between 1985 and 1995, 20 states liberalized their concealed-carry permit systems. See John C. Lenzen, Note, Liberalizing the Concealed Carry of Handguns by Qualified Civilians: The Case for "Carry Reform," 47 RUTGERS L. REV. 1503, 1504 n.4 (1995) (listing 27 concealed-carry laws by state).
50. See e.g., Sam Howe Verhovek, In Texas, Pistol Packers Must Know Psychology, N.Y. TIMES, Nov. 8, 1995, at A1 (noting that in Texas a person must pay a $140 application fee, have no history of a major crime or mental illness, demonstrate an understanding of use-of-force laws, pass a shooting proficiency test, and pass a test covering nonviolent, conflict resolution techniques).
51. See Thurman, supra note 39, at 62 (interviewing a gun wholesaler who notes that "[a]s more states pass concealed-carry legislation, we'll see an increase in hand-gun sales. In addition, the laws will make owning other types of guns more acceptable to a lot more people"). Women have increasingly been targeted as an untapped market for firearms. See Carrie Goerne, Gun Companies Target Women; Foes Call It "Marketing Fear," MARKETING NEWS, Aug. 31, 1992, at 1 (noting that in 1992 Ladies Home Journal was the first general-interest women's magazine to accept a firearm advertisement, detailing the LadySmith marketing campaign of Smith & Wesson, and the introduction of Women & Guns magazine in 1989, with a 1992 circulation of 25,000).
52. See Vernon Silver, Holes Found in Law on Carrying Hidden Guns, N.Y. TIMES, Nov. 2, 1995, at A16 (noting that gun homicide rates in several Florida metropolitan areas increased after its legislature passed a concealed carry law). Phillip J. Cook, a public policy professor at Duke University, has stated that:
We're having a good natural experiment now with about half the states changing their laws. This is a fascinating issue because predictions (concerning effects on crime) go in both directions. . . . [T]here is no firm evidence which allows people to speculate freely.
Id.; see also A.L. Kellerman & D.T. Reay, Protection or Peril? An Analysis of Firearm Related Deaths in the Home, 314 NEW. ENG. J. MED. 1557, 1557-1560 (1986) (finding that for every act of self-protection there are 1.3 fatal accidental shootings, 5 homicides, and 37 suicides).
53. Compare Kevin M. Cunningham, When Gun Control Meets the Constitution, 10 ST. JOHN'S LEGAL COMMENT. 59, 63 (1994) (citing 2.4 million defensive uses) with David McDowall & Brian Wiersema, The Incidence of Defensive Firearms Use by US Crime Victims, 1987-1990, AM. J. PUB. HEALTH, Dec. 1994, at 1983, 1984 (noting an annual mean of 64,615 defensive uses of firearms from 1987-1990, but concluding that "criminals face little threat from armed victims. The probability of firearm resistance is not zero. Yet, given that half of US households own a gun, armed self-defense is extremely uncom