Academic journal article Vanderbilt Law Review

The Disappearing Settlement: The Contractual Regulation of Smith & Wesson Firearms

Academic journal article Vanderbilt Law Review

The Disappearing Settlement: The Contractual Regulation of Smith & Wesson Firearms

Article excerpt


Consider three transactions: (1) federal legislation passed by Congress; (2) an order of judgment in a private lawsuit; and (3) a contractual arrangement between private parties. If one were asked to rank those transactions in order of the potential impact they should have on public and social policy, they would probably appear in the order that they are listed. Intuition, experience, and plain common sense might likely lead to the conclusion that legislation has the greatest impact on public policy, private agreements the least,1 and final judgments in litigation somewhere in between.2 Democratic principles provide very good reasons for this ordering. On matters of public policy lawmaking, the legislative process is supposed to provide citizens with the participatory and representative clout guaranteed by the Constitution.3 Slightly farther down the continuum, the outcome of litigation, while still a matter between private parties, is governed by laws publicly enacted and by judges who are bound to use and interpret those laws. Alternatively, private agreements have none of these restrictions. Although principles of contract law prevent agreements that baldly subvert existing laws or mores,4 beyond the scope of that restriction, they represent a free-for-all. Parties will (and according to efficiency principles, should) bargain for the most advantageous agreement and tend to think little about the costs to society at large.5

If we are willing to use these assumptions as a starting point, gun control policy might help animate them. The discourse surrounding the way we use and regulate firearms is nothing if not IMAGE FORMULA5

public. Argued about by presidential candidates,6 debated by scholars,7 and trumpeted by a million marching moms,8 there is little room to dispute the fact that gun control is an issue that concerns and affects many Americans. Moreover, the target of that discourse-- violence allegedly caused by a lack of gun control restrictions-is not just public, but a public tragedy.9 Accordingly, using the assumptions set forth above, Congress might be the best place to address public concern about gun control, the courtroom less preferable, and the bargaining table least preferable.

Given the magnitude of public concern about the problem, as well as the magnitude of the problem itself, the legislature would appear at first blush to be a good institution for resolving some of the most troubling aspects of gun control. And, despite public perception to the contrary, there has been interstitial progress on gun control legislation in Congress the last ten years.10 The rhetoric might suggest otherwise, but federal legislative gun control efforts have made considerable progress11 when compared with the period of virtually IMAGE FORMULA7

nonexistent restrictions, and even some anti-restrictions,12 in the 1970s and 1980s. Thorny federalism questions notwithstanding,13 federal legislative efforts towards gun control experienced something of a renaissance in the middle of the past decade.14 Nevertheless, legislative efforts also remained characterized by intense lobbying, led by the National Rifle Association ("NRA").15 One of the few political lobbies that is truly a household name, the NRA wields considerable power and influence on Capitol Hill and continues to be successful in blocking gun control legislation.16 Countervailing lobbying efforts have emerged to challenge the NRA's supremacy, however, with increasing success.17 Whether blame is placed at the doorstep of the NRA or the members of Congress themselves, public sentiment favoring firearm control cannot be completely squared with the actual output of legislation.18 But, as explained in detail in Part II below, the last ten IMAGE FORMULA9

years have shown promise for gun control advocates, particularly when contrasted with earlier efforts. …

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