When Products Can Kill

Imagine a durable product that is implicated in the deaths of thousands of Americans each year, by homicide, suicide and accident. These objects are sometimes stolen and used in the commission of felonies. And there are more of them in circulation than there are people in the country.

By law and tradition, however, private ownership of such products cannot be infringed upon. They also have a number of legitimate uses. Police officers need them, and life on farms and in sparsely populated areas would be more difficult without them. They are also used for recreational purposes and are popular with collectors.

These products are the subject of cultural divides — in general, liberals prefer that their use be curtailed while conservatives see no harm in their proliferation.

We are talking, of course, about motor vehicles.

But every statement above also applies to guns. It is true that cars are much larger and harder to conceal than arms, and there is no constitutional right to keep and bear them. Nevertheless, the many similarities suggest that one can learn something about the regulation of guns by looking at the manner in which motor vehicles are regulated in the United States.

There is no limit on the number of cars or trucks an individual may own. However, each of them must be registered, inspected periodically and driven only by those with a valid license. The responsibility for registration and licensing lies with the states, and there is a fair amount of uniformity in practices across jurisdictions. Short-term movements across state lines are easily accommodated, as documents issued by one state are recognized by the others. Relocation to a different state does require a new license and registration to be issued, but the process is relatively seamless and there is a grace period.

Driving while intoxicated is a serious crime in most states because alcohol impairs judgment and reflexes. It is a crime even if an intoxicated driver causes no harm to persons or damage to property. Measures to reduce drunk driving have been shown to reduce traffic fatalities without reducing the number of vehicles in operation. Such measures could be expanded to include weapon possession while clearly impaired.

A bar or liquor store that sells alcohol to a person who is intoxicated and likely to drive is responsible for any damage that person causes. Similar liability could extend to selling a weapon or ammunition. Dram shop liability could also extend to selling weapons or ammunition to a person who appears or is known to be suicidal or homicidal.

Standard tort law may also be relevant here. If one person injures another, tort law generally requires that the former compensate the latter, regardless of whether the injury was inflicted by a Buick, a bullet or a baseball bat. The instrument of harm, however, may affect the standards under which tort law operates — whether, for instance, the plaintiff has to prove negligence or the defendant can countersue. Most motor vehicle matters are handled under a weak standard, comparative negligence, and gun issues would probably fall under that standard too.

The general ineffectiveness of tort law as a check on gun carelessness and error is due mainly to judgment proofness: Defendants may not be able to pay the full amount of the damages they cause. Judgment proofness discourages plaintiffs from filing suit, and blunts incentives for gun owners to exercise caution. With motor vehicles, judgment proofness is usually avoided by mandatory liability insurance. Mandatory insurance would also give insurers a stake in reducing gun violence through research and lobbying.

Health insurance companies might also play a role. Insurers could be permitted to collect information on gun ownership and to adjust the premiums they charge based on that information. A priori, it is unclear whether they would charge higher or lower rates to gun owners, but they would have good information on which to base that decision and an incentive to make the decision correctly. They would also have incentives to research health-promoting practices for gun owners and to encourage their customers to follow those practices.

Cars are subject to federal standards that most buyers find unobjectionable. You can’t buy a car without headlights or windshield wipers, for example, even if you have no plans to drive in the dark or in the rain. Some agreement on minimal design and safety standards for firearms should be possible at the federal level, perhaps building on regulation that already exists in a few states.

A significant proportion of crime guns originate in straw purchases or as lost and stolen weapons. Tens of thousands of guns are stolen from parked cars annually, with vehicles advertising support for gun rights being especially attractive to thieves. Gun dealers are required to file reports when they face theft or loss; such reporting requirements could be extended to owners more broadly. If individuals faced civil liability when a lost or stolen weapon is used to injure or kill, incentives for safe storage would be significantly amplified. Smart guns (which can only be operated by authorized users) would start to appear more attractive, and accidental discharges would become less frequent.

If civil liability for injury or death caused by one’s weapon appears far-fetched, consider the fact that people have already been found criminally liable for the same. In March 2024, a Michigan couple (Jennifer and James Crumbley) were found guilty on four counts of involuntary manslaughter for a school shooting perpetrated by their teenage son. Prosecutors argued successfully the parents could have prevented the crime by taking their son out of school when the risks became apparent and by keeping their firearms secure.

In 2023, after the shooting but before sentencing, Michigan enacted a law that makes adults criminally liable if a minor gains access to their unsecured firearms and brandishes them in public or in a threatening manner. This law is enforceable because a gun can easily be traced from a child to a parent or other source. Universal registration of firearms by states would allow crime guns to be traced more easily to their original owners more generally.

Following the Port Arthur massacre of 35 people in 1996, Australia made significant changes to its national gun laws. Ownership of automatic and semiautomatic assault rifles was restricted, a 28-day waiting period for purchases was imposed, a national gun registry was established, licensing requirements were strengthened, and a large-scale gun buyback program was initiated. The result was a very sharp decline in gun suicides, as much as 75% by one estimate, and a smaller but still significant fall in gun homicides. There was no evidence of displacement in the form of increased nonfirearm deaths.

A policy shift of this kind is unimaginable in the United States; judicial rulings and political realities simply would not allow it. If the supply of crime guns is to be curtailed, it will have to be along lines that do not infringe on legal ownership. Licensing, liability and mandatory insurance would be highly effective in curtailing straw purchases, encouraging safe storage and interrupting the flow of lost and stolen guns from legal owners to people who are more likely to use them in the commission of felonies. With regulation under the control of states, such initiatives would not run afoul of federal law, which explicitly prohibits the creation of a national gun registry.

At present, however, there are just a handful of states in which registration and licensing is required. Safe storage laws and reporting requirements for loss or theft are also rare. For a policy built on regulation by states to work effectively, there would need to be much more harmonization and coordination than we have seen evidence of to date.

One obstacle to coordination across states is the extraordinary level of polarization that contaminates debate on such issues. Gun rights advocates fear that even modest regulations will put us on a slippery slope to confiscation, and this is fueled in part by claims by some gun control advocates that the Second Amendment does not grant an individual right of ownership. This chasm has to be narrowed if there is to be any hope of progress.

But motor vehicle regulation was also haphazard and highly decentralized once. New York began to mandate license plates in 1901, but it took two decades for this to become a nationwide standard. Rhode Island started to require a driver’s exam and license in 1919, but the mandate did not become universal for another four decades. It is possible that we will see this pattern repeated with guns.