A public health approach to regulating firearms as consumer products.

• Author: Vernick, Jon S.

INTRODUCTION

It is indisputable that firearms are consumer products. In the United States, there are an estimated 192 million firearms in private hands.(1) Broadly speaking, firearms can be divided into two categories: handguns and long guns. About sixty-five million of all civilian-owned firearms are handguns.(2) More than one in three households have at least one firearm, and about one in four U.S. adults personally own one.(3) In rural areas and certain regions of the country, ownership rates are still higher. Like other consumer products, firearms are manufactured by foreign and domestic corporations, then sold to consumers through a system of distributors and dealers. In 1998, about 1.2 million handguns were produced in the United States; 582,000 more were imported.(4) Also like most consumer products, firearms are advertised in both specialized publications and mainstream media.(5)

There are also important differences between firearms and other consumer products. Unlike nearly all other products commonly found in households, firearms are specifically designed to injure or kill. As a result, there were more than 32,000 firearm-related deaths in the United States in 1997,(6) and approximately another 64,000 serious nonfatal injuries.(7) In addition, more than 670,000 violent crimes were committed with firearms in 1998.(8)

This special deadliness increases the need to regulate firearms. In the United States, however, we have failed to regulate firearms in the manner we regulate even less deadly consumer products. In particular, we have not implemented comprehensive product-based regulation of firearms, as we have effectively done for other consumer products, in order to reduce the incidence of firearm-related injuries.

As public health researchers and teachers, our reasons for arguing that consumer-product regulation of firearms is needed are neither philosophical nor ideological. Rather, they are based on our understanding of the potential benefits of gun regulation for the public's health.

This Article will (1) briefly summarize how firearms are currently regulated and highlight the gaps in that regulation; (2) discuss the elements of a comprehensive system to regulate firearms as consumer products; (3) present several regulatory alternatives for implementing and maintaining such a system; (4) explain what is known about the likely benefits of such a system; and (5) anticipate and respond to several arguments that may be raised to oppose consumer-product regulation.

1. HOW FIREARMS ARE CURRENTLY REGULATED: AN OVERVIEW

   In the United States, there are laws governing firearms at the federal, state, and local levels. One way to think about the structure of these laws is to imagine the history of a given gun as including its (1) design, manufacture, and marketing; (2) sale; (3) possession; and (4) use.(9) Although some argue that there are already numerous laws governing firearms, the majority of these are criminal laws proscribing certain uses of firearms, such as harming someone or committing a crime. Most of these are promulgated at the state or local level.

   A number of laws also govern the possession of firearms. Under both federal and state laws, convicted felons,(10) among other categories of persons,(11) may not possess firearms. Juveniles may not possess handguns,(12) but they may possess long guns. Firearm possession is also proscribed in certain places, such as school zones(13) and courthouses, subject to limited exceptions. State laws also establish rules defining who may carry a concealed firearm.(14)

   Regarding the sale of guns, under the federal Gun Control Act of 1968, a person engaged in the business of selling firearms must obtain a dealer's license.(15) Some states also require gun dealers to obtain a license. Licensed dealers may not sell handguns to persons younger than age twenty-one, or long guns to those younger than eighteen.(16) In addition, licensed dealers must collect information from prospective purchasers so that state or federal authorities can perform a criminal history background check.(17) In some states, the background check includes a waiting period; in others, the check is performed immediately over the telephone.

   Noticeably absent in the United States, however, are laws governing the design, manufacture, and marketing of firearms. The Consumer Product Safety Commission ("CPSC") has federal regulatory authority over most consumer products,(18) although other federal agencies oversee the design of some products, like motor vehicles, boats, and medical devices. Virtually alone among consumer products,(19) for firearms, no federal agency has the authority to establish standards for their safe design. In fact, Congress has expressly forbidden the CPSC from exerting regulatory authority over firearms and ammunition.(20) Although the Bureau of Alcohol, Tobacco, and Firearms ("ATF") has the authority to implement specific gun laws, such as portions of the Gun Control Act, it has no broad regulatory authority over firearms.

   In the absence of a comprehensive federal regulatory scheme for gun design, only a few individual federal and state laws address this issue. Under the Gun Control Act, no handgun may be imported unless it is "particularly suitable for or readily adaptable to sporting purposes."(21) To implement the sporting-purposes test, ATF has established what are called "factoring criteria" to be applied to each imported handgun. The factoring criteria establish minimum-size standards and consider a handgun's safety features and other design factors to determine whether a handgun may be imported.(22) No comparable federal laws apply to domestically manufactured handguns, although some states do ban domestically-made Saturday night specials.(23) A recent federal law also banned so-called "assault weapons," originally civilian versions of military firearms.(24) Nineteen such weapons are banned by name, and numerous others are also outlawed if they possess some combination of design features such as a detachable magazine, barrel shroud, or bayonet mount. Finally, federal law prohibits the possession and sale of new ammunition magazines that hold more than ten rounds of ammunition.(25)

2. HOW TO REGULATE FIREARMS AS CONSUMER PRODUCTS

   A comprehensive consumer product-based regulatory scheme for firearms would include the following: (1) standards for safe design; (2) closer regulation of firearm models that are particularly dangerous or attractive to criminals; (8) surveillance and recall authority; (4) improved manufacturer and government oversight of firearm dealers and distributors; (5) requirements for responsible advertising practices; and (6) no immunity from litigation for firearm manufacturers.

   Design standards are at the heart of regulating firearms in the same manner as other consumer products. Unfortunately, left to themselves, firearm manufacturers have not uniformly incorporated feasible safety technologies into the design of handguns. In fact, the general trend in handgun design has been to increase lethality rather than safety.(26) Recently, for example, there has been a shift among manufacturers toward the production of semiautomatic pistols rather than revolvers.(27) Most pistols can hold more ammunition in their magazine or clip than revolvers hold in their rotating cylinder, thereby increasing the opportunity for multiple wounds.(28) In addition, there has been a trend toward higher caliber handguns. Other things being equal, higher caliber ammunition can produce more serious injuries than lower caliber ammunition. Other factors, such as the widespread availability of and media attention given to laser sighting devices, may also increase the overall lethality of handguns.(29)

   This trend toward increased firearm lethality can be reversed. There are design changes to firearms that can actually reduce the risks they pose to both individuals and society. For example, a personalized gun is designed to be operable only by an authorized user. Sometimes also called "smart guns," these firearms have been patented, though generally not manufactured, for many years. Recently, however, SigArms has developed a new gun that uses personalization technology, which the company expects to market in the near future. The new gun has a built-in key pad requiring the authorized user to enter a personalized identification number. The gun can be set so that it will not operate unless the user enters the correct code, and includes a timer that can be programmed to relock the gun after a certain period of time has elapsed. Additional ways to personalize guns are also being developed, including guns that will identify the fingerprints of their authorized user(s).(30)

   Personalized guns might prevent several different kinds of firearm-related deaths and injuries. Such technology can prevent firearm suicides or unintentional deaths in which the person pulling the trigger, for example a juvenile, is not the gun's owner or authorized user. In addition, if personalized guns are not readily operable by criminals who might steal them, even some homicides may be prevented.

   Other design features intended to prevent certain unintentional shootings are included on some, but not all, handguns. A loaded-chamber indicator is a device designed to indicate to a user or observer if the gun contains ammunition ready to be fired. Because semiautomatic pistols may retain one ammunition round in the firing chamber after the ammunition magazine has been removed, this device can prevent accidental shootings where the shooter mistakenly believes that the gun is not loaded. A magazine safety, sometimes called a magazine disconnect safety, is also designed to prevent some of these shootings by automatically preventing the pistol from firing when its ammunition magazine has been removed, even if one round remains in the firing chamber. Despite the lifesaving potential of these devices, they are...