Shotgun News, January 1, 2005, pp. 22-23

I'm trying to get over the shock of it all--the Illinois Supreme Court and the Illinois legislature both took steps in November that protected the rights of gun owners. Perhaps the influence of Chicago on all matters involving guns is beginning to wane.

The first taste of good news (although with a sour aftertaste) was a pair of decisions by the Illinois Supreme Court. The cases were Chicago v. Beretta¹ and Young v. Bryco Arms.² In the first suit, Chicago and Cook County (in which Chicago is located) filed suit against "18 manufacturers, 4 distributors, and 11 dealers of handguns that have been illegally possessed and used in the city.... The theory of liability is public nuisance." Chicago and Cook County wanted money to pay for emergency medical care, the cost of prosecuting criminals who misused guns, and the cost of defending criminals who misused guns.³

In the second suit, the suit was filed by next of kin "of individuals who were killed in the City of Chicago in crimes involving illegal firearms. In each case, the killer was either a minor or a young adult who had obtained the weapon from a minor.... Plaintiffs' theories of liability included negligence and public nuisance." This suit was filed against gun manufacturers, distributors, and gun stores that manufactured or distributed three guns used in the crimes in question. The suit also included sixteen manufacturers, distributors, or retailers who did not have guns that were involved in these crimes--but are "irresponsible businesses that significantly contribute to the creation and maintenance of the alleged public nuisance."⁴ It seems a bit odd to me that if these other businesses are really this irresponsible, that the lawyers couldn't find a crime committed with guns that these "irresponsible businesses" made or sold. It would almost seem as though the lawyers were working on the "collective guilt" theory of firearms--anyone that is in the business, is responsible for everyone else in the business. Perhaps we should apply this principle a bit more broadly; as a sign here in Boise says, "99% of lawyers give the rest a bad name."

I've written in the past about the enormous number of lawsuits like this that have been fought out in the courts--and how terribly unsuccessful these suits have been, even in fiercely anti-gun places like California and New York. These two suits aren't fundamentally any different: they allege that the manufacturers intentionally oversupply their guns in the areas around Chicago, "knowing that persons will illegally bring them into jurisdictions where they are illegal and then possess or illegally resell them." They claim that makers build guns that they know have no lawful purpose (small handguns and assault pistols) and fail to adequately police federally licensed gun distributors and retailers.

Much of the decision is pretty boring disputes about the way in which the claims should have been presented to the court. The big news, however, is that in Chicago v. Beretta, the Illinois Supreme Court pointed out that the allegations of improper behavior by the gun makers and distributors "are sparse," and only the allegations against the gun dealers have any real meat to them. Most importantly, the Illinois Supreme Court pointed out that a lawfully sold, non-defective good is not a public nuisance--no matter how it might be misused by a later owner. The Court pointed out that, "cell phones, DVD players, and other lawful products may be misused by drivers, creating a risk of harm to others" but that this did not allow lawsuits against makers of these devices, simply because they might be misused.

The most important point of the decision was that "it is possible to create a public nuisance by conducting a lawful enterprise in an unreasonable manner. If, however, as in the present case, the enterprise is highly regulated by state or federal law" then the plaintiffs would have to prove violation of the law, negligence, or that the law regulating the business was defective.⁵

Now, what makes this decision so astonishing is that in the related suit, Young v. Bryco Arms, the justices came to the same conclusion--but five of the seven justices wrote a "special concurrence" in which they expressed their belief that the gun makers and distributors were actually intentionally oversupplying the market in the Chicago suburbs, and intentionally making guns especially intended for criminal use. In particular, the "fingerprint-resistant finish" of the TEC9 was mentioned.⁶

More troubling, at least some gun stores in the suburbs of Chicago have sold guns in strawman sales, even when undercover police officers indicated that the gun was for a gang member who could not lawfully purchase it.⁷ I'm sure that most gun stores in the Chicago area are conforming to the law, but the ones that do not are both making Chicago unnecessarily dangerous, and putting honest gun stores at risk.

The plus side of this special concurrence is that it shows that five of the seven justices are anti-gun, or at least were swayed by these misleading claims--and yet still decided to follow the law, instead of coming down on the side of the plaintiffs. The down side is that the special concurrence suggests that there is a serious need for more gun control laws but "it is a matter best left for legislative, as opposed to judicial, action. Given the disturbing statistical data that I noted at the outset of this separate opinion, it is my sincere hope that our General Assembly will turn its attention to the problems this case brings to light."⁸

The real problem isn't that Illinois doesn't have tough enough gun control laws, but that Chicago is deeply and seriously broken. As much as it would be nice to blame Chicago's murder problem on its gun control laws, I don't think that is the major problem. Chicago has a seriously screwed up social structure--problems so severe that I doubt that they can be fixed in less than a generation. If a lack of gun control laws was the major problem, Chicago would be safer than its suburbs--and that's not the case.

Citizens of Illinois should be aware that this "special concurrence" is going to be used as a lobbying tool by gun control activists this coming year--be ready for it. Even better, lobby your legislators to start looking at the core problems of why Chicago is so violent: the lack of fathers; preventing child abuse; encouraging stable families; locking up violent predators early in their careers; making use of the existing very serious penalties for convicted felons in possession of a firearm.

The other good news from Illinois this month is that the legislature not only passed a law overriding local gun control measures, but overrode the governor's veto of that bill as well. Almost a year ago, a guy named Hale DeMar who lives in Wilmette, Illinois, shot a burglar who had broken into his home. Mr. DeMar was, of course, charged with violating Wilmette's local handgun ban, and failing to have his Illinois Firearms Owner Identification card up to date.⁹

Unsurprisingly, an Illinois legislator introduced a bill to correct this injustice. Now, I wish that I could tell you that the bill struck down local handgun bans (of which there are several examples in Illinois), but the bill that the legislature finally passed is at least a step in the right direction. "It is an affirmative defense to a violation of a municipal ordinance that prohibits, regulates, or restricts the private ownership of firearms if the individual who is charged with the violation used the firearm in an act of self-defense or defense of another as defined in Sections 7-1 and 7-2 of this Code when on his or her land or in his or her abode or fixed place of business."¹⁰ In other words, if you break a local gun control measure, but you are otherwise engaged in a lawful act of self-defense at home or in your place of business, the city can't prosecute you. It looks like even Chicago would be unable to prosecute someone who was otherwise within the law, but had violated the city's impossible to satisfy handgun registration ban. This isn't perfect, but it is at least progress.

Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is http://www.claytoncramer.com.