Epilogue: Is There an Issue Here?

Lester H. Hunt

University of Wisconsin - Madison

One striking fact about this fascinating discussion of gun control is the extent to which the various sides of the discussion agree, or at least fail to disagree. Sam Wheeler and Lance Stell argue against banning guns, but Hugh LaFollette informs us that he is not really advocating a ban, but only the far more moderate measure of strict liability: that is, he recommends tort liability for gun owners, regardless of intent or negligence, for damage done by their guns. Stell and Wheeler hold that gun ownership is a right, but Cynthia Stark informs us that the idea that such ownership is a right is quite compatible with LaFollette's basic argument. Indeed, I should think it would be easy to flesh out that argument in such a way that it would require us to recognize such a right.

This suggests three questions almost immediately: 1.) Is there a major disagreement on matters of policy here? 2.) If there is, is it based on deeper disagreements on matters of principle? 3.) If it does, how deep does this disagreement go? What I would like to suggest in the next few pages is that we are in fact contemplating a very considerable disagreement on policy, and that it does seem to rest on differences of principle. Further, these differences, both of policy and principle, seem very large indeed.

To take the first point first, I would like to suggest that Prof. LaFollete's policy proposal is not as moderate as it appears, that it differs much more, and more deeply, than might at first seem to be the case, both from the alternative represented by Weaver and Stell and from the actual legal and political status quo. The appearance of moderation stems, as I have already suggested, from the fact that a strict liability rule seems intuitively to fall far short of a ban. The difference between them is at least as large as the difference between the criminal law, which punishes actions thought to be wrong, and tort law, which transfers the cost of an action from the victim of an action to the perpetrator. A tort rule merely increases the costs of the act to the one who does it. However, even in this respect the two approaches are not as different as they might seem. Threats of fines or prison terms for gun ownership also increase the cost of the act to which they are attached, and the threat of liability judgements would have to some extent the same effect on the rate at which the thing is done: it would make gun ownership less common. Indeed, legally imposed costs that are high enough can virtually eliminate the associated act, even if they fall short of criminal sanctions, as when the federal government virtually eliminated the Thompson machine gun in the early thirties by the simple expedient of imposing a tax of $200 per weapon. More importantly, the purely pecuniary costs imposed by a liability rule would tend to discourage gun ownership on the part of the poor, for whom the marginal value of money is higher than it is for the rich. Since the poor are more likely to live in high crime areas and consequently more likely to need handguns for self-defense, this would raise the likelihood that people who are persuaded by Prof. Wheeler's self-defense based argument would object to such a rule.

More importantly, a rule of the sort that Prof. LaFollette proposes would seem to require a radical change in our system of tort law. Strict liability as it presently exists, despite the fact that it is sometimes misleadingly called "absolute liability," is not unlimited in the manner of the LaFollette rule.⁽¹⁾ The strict liability that presently applies to blasting with high explosives would not hold me liable for the actions of, for instance, a group of terrorists who steal my dynamite and use it to blow up a building full of innocent people. Yet Prof. LaFollette suggests that I should be held liable in analogous circumstances if the item stolen from me is not stick of dynamite but a handgun. Against a claim of strict liability the law affords a number of potential defenses. Even if my blasting harms you or your property, I might successfully defend myself against liability by arguing that you would not have suffered the harm were it not for negligence on your part.⁽²⁾ I might also successfully defend by arguing that the harm would not have happened if it had it not been for the fact that an "act of God" which I could not have anticipated (such as a flood) intervened and contributed to the harm.⁽³⁾ Again, I might successfully argue that you would not have suffered the damage if were not for the fact that you or your property are abnormally prone to this sort of damage (that, for instance, that your livestock is abnormally sensitive to the vibrations from my blasting).⁽⁴⁾ On the other hand, the LaFollette approach would seem to be inconsistent with some or all of these defenses. Intuitively, that seems to involve a sharp departure from the law as it currently exists.⁽⁵⁾

This impression of a sharp departure is further reenforced by a brief look at a representative sampling of the actions for which existing tort law has actually imposed strict liability. Such a list might include, in addition to the well-known cases of blasting with high explosives, such actions as the following: keeping a chimpanzee (which injured an invited guest), keeping a horse known to be vicious (which kicked an unoffending neighbor), impounding a large reservoir of water (which leaked and damaged a neighbor's coal mine), and pile driving (which produced vibrations that damaged neighboring property). Other instances, drawn from actual cases, include using hydrocyanic acid gas to kill cockroaches in a building with other tenants, launching rockets to test rocket fuels, crop dusting, and transporting gasoline in tanker trucks on public highways. Could this list of examples, which includes all that I could find in a standard torts text,⁽⁶⁾ easily accommodate an additional item, "owning a gun (which was subsequently stolen and used to injure an innocent third party)"? I don't think so. This is not a miscellaneous collection. The items in it do have certain things in common. As the relevant legal decisions have stated many times, all are instances of actions that 1) are not commonly done, 2) necessarily involve a substantial risk of serious harm to others, and 3) cannot be made safe even with the exercise of the utmost care. Activities that have all three of these characteristics are commonly described in the law, somewhat misleadingly I think, as "ultra-hazardous."⁽⁷⁾

I would argue that gun ownership fails to clearly possess any of the three characteristics of ultra-hazardous activities. That it fails to have (1) is, at least in this country, obvious. Almost half of the households in the United States have firearms, and many possess several. This fact certainly distinguishes gun ownership as a thing that is commonly done. More importantly, it is at least arguable that gun ownership fails to have (2). The overwhelming majority of these weapons never hurt a human being, though they tend to inflict gruesome violence on deer, grouse, and jackrabbits. Given the enormous number of guns that exist in this country, the odds that any one gun will hurt a human being is extremely small.

Though LaFollette would no doubt contest this are argue that guns are per se substantially hazardous, it would seem impossible to effectively challenge the claim that guns are radically different from the items on my list with respect to characteristic (3). Each of the listed actions involves, in some sense, the unleashing of natural forces - the pressure of many tons of water contained by layers of soil, the whims of a vicious horse, drifting clouds of crop duster poison - which cannot be controlled with precision by human effort. Though gun ownership can also be regarded as in a sense hazardous conduct, it represents a very different, in fact virtually the opposite, sort of hazard from actions like these. While there is no way to control precisely which way the rocks will fly when a charge of dynamite is detonated, the precise control of the flight of a bullet is in a sense the entire purpose of a gun. Unlike automobiles, fireworks, and most other dangerous objects, guns are precision instruments. In fact marksmanship, one of the hobbies based on guns, consists very simply in the perfecting and enjoying this precision as an end in itself. Virtually all accidental injuries from firearms are due to the violation of some simple safety rule that is well known to responsible users everywhere. The same thing cannot be said of injuries caused by sticks of dynamite or clouds of poisonous dust.

Of course, these facts, supposing I am right, have only a limited interest and importance in themselves. The real issue is whether there is some principled way add Prof. LaFollette's proposal to our tort system without profoundly altering the system. I suspect that there is not, mainly because the differences I have cited, both those having to do with the nature of the hazard involved and those having to do with available defenses against strict liability, are probably based in part on deeply rooted ethical notions which the LaFollette rule would probably require us to abandon or radically restrict.

A full discussion of this issue is obviously beyond the scope of what I can do here, but perhaps a brief consideration of possible grounds for the current state of the law will serve to motivate my concern. One factor that can readily be used to explain the defenses I have mentioned has to do with foreseeability. One appealing reason to refrain from holding people responsible for the consequences that their actions will only have in the context of an "act of God" such as freakishly severe weather is that we are averse to holding people responsible for things that they cannot anticipate and avoid. The same can be said of the abnormally sensitive victim and even, to some extent, of the negligent victim. By nature abnormalities are surprising and so, in another way, is the behavior of the negligent: I can predict the behavior of careful people because I know what care requires; those who are not careful are not predictable in this way.

There is also a readily available way to explain why we tend to avoid holding people responsible for unforeseeable consequences: to do so seems to us to be unfair. The aversion toward extending responsibility beyond the foreseeable, according to this explanation, rests on an ethical principle, something to the effect that it is unfair to hold people responsible for consequences of their behavior that they cannot anticipate.

However, the particular hazards to which strict liability applies raise a problem for those who share this ethical principle. These hazards are paradigm cases of the unpredictable: whatever a drifting cloud of poison dust might do, it will certainly be something that no one could have known beforehand. Yet it does not seem fair to let those who choose to engage in such activities completely off the hook as far as liability is concern: for in that case the cost of damage done will fall on innocent people who did not choose to be exposed to peril. On this point, the ethical principle I have just vaguely adumbrated seems at first glance to conflict with other well-grounded ethical assumptions.

But this conflict is only apparent, and is in fact resolved by the law as it presently exists. The particular sort of hazards that are presently at issue represent cases in which one does know something about the effect of one's actions on the future: one knows that one is subjecting others to a significant level of risk of harm. More importantly, one knows that this hazard is one that one cannot guard against: this significant level of risk is simply not eliminable. Given that these activities are also ones that one can avoid doing - they are chosen - we can conform to the ethical principle regarding forseeability and at the same time to innocent victims by imposing liability for the significant risks that are known by the agent when the activity is first undertaken, because they are essential to the activity itself, while blocking liability for the consequences of extremely rare natural catastrophes as well as the consequences of the behavior on the part of others which the agent cannot anticipate. This would mean imposing strict liability which is limited in more or less the ways that I have described.

As I have said, my point here is not that this is this is the correct theory of strict liability as it exists in our legal system. It is that the status quo in this area is a response to factors of this general sort: it is an attempt to do justice to both to legitimate ethical concerns to compensate the innocent for harm done to them on the one hand and at the same time to be fair to those who contribute in some way to that harm on the other, and to do so in a context where full justice to both sides is very easily obtained. The LaFollette approach departs sharply from this tradition by responding to only one side of this delicate balance. It offers abundant compensation to victims, but at the price of imposing on those who contribute to their injury a liability that is not merely strict but unlimited.

To put the matter in more intuitive terms: the LaFollette rule imposes on a single woman who sleeps with a handgun in her nightstand a liability that goes far beyond that which the law imposes on people who drop clouds of poisonous dust from airplanes or drive tons of highly flammable fluids down the highway in trucks. I am not saying that his rule is wrong and the actual legal one is right, only that they are very different. However, it does seem that, if LaFollette is to be right, then there is at least one thing that would have to be true: owning a handgun would have to be in some sense a worse activity than transporting gasoline in trucks.

The empirical evidence he discusses, regarding the damage done by guns, does not directly address this issue. It reflects on the issue of whether gun ownership is hazardous, but not on the issue of whether it differs relevantly from other hazardous actions. To his credit, LaFollette does make a case that guns do represent a special sort of hazard, but the argument he gives is more conceptual than empirical. I am referring of course to his argument that gun ownership is special because guns are "inherently dangerous." Though his use of the idea of inherent dangerousness does serve to lend logical support to his policy recommendations, I would urge that it also marks an additional and deeper difference between his own position on the one hand and both the Wheeler position and the legal status quo on the other.

The notion of inherent danger is clearly a very different sort of idea from the legal notion of an "ultra-hazardous activity." As LaFollette defines his idea, things are inherently dangerous if their "nature or design is sufficient to justify our prediction that they will cause harm independent of any empirical evidence." He comments that "we are more prone to control inherently dangerous objects than objects that merely have harm as an unwanted side effect."⁽⁸⁾ At the very first glance, the difference between LaFollette's idea and the seemingly correlative legal notion seems both enormous and puzzling. The legal idea of an ultra-hazardous activity picks out, as relevant to the issue of imposing strict liability, the degree of risk imposed by the activity involved, the degree to which the agent is able to control that risk, and the degree to which it is commonly done. LaFollette's notion, on the other hand, appears to pick out, as having the same sort of relevance, the way we know guns are dangerous: mainly, that we can know this without empirical study beyond what we can infer from that nature of guns themselves. Rather obviously, this way of viewing the matter is quite alien to the existing legal standard. It also, upon reflection, appears rather odd from the point of view of ordinary common sense as well: why should how we know that something is hazardous be relevant to the question of how stringently the law should control it? Why would someone think that this is what matters, rather than the hazardousness itself?

As a matter of fact, there is another way to understand what LaFollette is saying, one that does represent a recognizable, though not universally shared, moral principle. In the above-quoted passage, he contrasts "inherently dangerous objects" with ones that "merely have harm as an unwantedside effect." The word I have italicized suggests a possible interpretation that is in fact borne out by another comment he offers to elucidate the notion of "inherent" danger: "Guns, unlike autos, are inherently dangerous. Guns were invented for the military; they were designed to cause (and threaten) harm."⁽⁹⁾ The suggested interpretation I have in mind would imply that, like the legal term "ultra-hazardous," LaFollette's word choice in speaking of "inherent" danger is actually somewhat misleading. Just as the legal term can create the false impression that it imputes to its object a high degree of dangerousness, so the LaFollette principle seems to imply (falsely) that what he is concerned with, ultimately, is the inherence of the danger in the object itself or with the aprioricity of our knowledge about it. Contrary to this impression what LaFollette does seem to think is relevant to the proper legal status of guns is not the fact that we can know they are dangerous without doing empirical fieldwork, but the reason why we can know this: we are able to predict that guns are able to cause injury and death because they are in fact designed and intended to do so.⁽¹⁰⁾

LaFollette can say that, just as automobiles are not designed to harm people, neither are crop-duster airplanes or gasoline tanker trucks. This fact makes guns deeply problematic from a moral point of view, placing them in an entirely different category from such other hazardous objects. To own a handgun is to implicate oneself in the intention that lies behind the very existence such implements: the intention to kill or maim human beings, or at least to threaten to do so. Even if we do not prohibit such objects altogether, we are doing no injustice if we place on such ownership legal liabilities that go far beyond those involved in the ownership of innocent objects.

This, at any rate, seems to be the logic behind LaFollette's handling of the notion of inherent danger. Clearly, it is a sort of reasoning that would have considerable appeal for many people, partly because it rests on a recognizable moral principle that has a considerable number of adherents. Precisely how this principle should be formulated is an issue that I cannot explore here, but it is clear enough that it would have to be something to this effect: that the act of doing or threatening to do violence to other human beings has some sort of ethical disvalue that is intrinsic to (in that it is inseparable from) the act itself. Though this principle is a familiar one it is, as I have already suggested, less than universally held. It is at least arguable that the law itself, as it presently exists, represents an alternative point of view, according to which the threat of violence and even violence itself can be justified. The most obviously relevant justification is, of course, that of self-defense. As I understand it, the law holds that a violent act is reasonably necessary for self-defense then it ordinarily does not involve any breach of legal duty. It may still be that the shedding of human blood, even the blood of the guilty, is regrettable, but that is no longer relevant to the legal status of the act. The self-defense justification of violence plays a major role in Wheeler's discussions of this topic, as does an additional justification, according to which gun ownership (which in this context would constitute the threat of force) can be justified by the fact that it deters the depredations of tyrants. On this view, if the violence or threat of violence achieves the specified ends and does not violate relevant moral constraints, it is not bad at all but good. This would seem to imply that if someone who participates in such actions then so far no moral disvalue attaches to what they are doing and the state has no reason to interfere.

The LaFollette position seems to be based on a principle that represents violent action as morally repugnant, and it seems to represent this repugnance as to some extent independent of the context, purpose, consequences and other such factors extraneous to the act. This principle is very different from those embodied in the law and in Wheeler's position, which seem to depict the status of violent acts as depending on precisely such extraneous factors. Regardless of one's sympathies with one approach or the other, it seems clear that they lie worlds apart.

1. I am indebted to Lance Stell for alerting me to this dimension of the issue, and for supplying the quotation in fn. 5 infra..

2. Sandy v. Bushey 124 Me. 320, 128 A. 513 (Me. 1925).

3. Golden v. Amory 329 Mass.484, 109 N. E. 2d 131 (Mass. 1952).

4. Foster v. Preston Mill Co. 44 Wash. 2d 440, 268 P. 2d 645 (Wash. 1954).

5. "It is widely agreed that strict liability does not mean absolutely unlimited liability." Charles O. Gregory and Harry Kalven, Jr., CASES AND MATERIALS ON TORTS, 579 (2d ed. 1969).

6. Prosser, Wade, and Schwartz, TORTS: CASES AND MATERIALS (1976).

7. Luthringer v. Moore 31 Cal. 2d 489, 190 p.2d 1 (Cal. 1948). I say this term seems misleading because the prefix "ultra," added to the adjective "hazardous," clearly suggests (at least to me) that what distinguishes this class of action is the fact that it subjects other people to a high degree of probability that they will be harmed. However, a glance at the three conditions I have just listed shows that this is not essential to an act's being "ultra-hazardous" at all. "Ultra-hazardous," one might say, does not mean "high risk."

8. Hugh LaFollette, Gun Control 110 Ethics 268 (2000).

9. LaFollette, supra at 269.

10. It would have been more appropriate if LaFollette had defined "inherently dangerous objects" (or some more perspicuous phrase) in terms of the intent with which they are designed and not in terms of the fact that we can know they are dangerous without doing empirical studies. Defining the phrase as he does makes some of his claims false, and needlessly so. For instance, his claim that cars are not inherently dangerous is obviously not true, if this means that the automobile's "nature and design" are not enough to justify a prediction that they will cause harm. Surely, the basic facts about the nature of cars - mainly, that they are very heavy, very fast, and are steering stopped using road-to-wheel friction - will justify the prediction that they will injure people. On the other hand, if the claim means that cars are not designed to cause harm, it is obviously true.