Pistol whipped

Nine years ago, when Rudy Giuliani was mayor, New York City politicians and bureaucrats grew frustrated that their gun control laws were being bypassed by New Yorkers going out of state to buy firearms.

If the nation as a whole couldn't be convinced to ban all handguns, maybe there was another way, the barristers schemed. New York City filed a lawsuit, designed to bankrupt gun makers and drive them out of business by holding them responsible for the actions of criminals who obtained their products -- sort of like allowing traffic accident victims to sue General Motors for the misuse of their cars by drunks.

The lawsuit worked its way through the courts until 2005, when Congress enacted the Protection of Lawful Commerce in Arms Act, designed precisely to block such legal actions.

But in 2005, federal Judge Jack B. Weinstein in Brooklyn ruled the lawsuit could proceed over the objections of gun makers including Beretta U.S.A., Browning Arms, Colt Manufacturing, Glock, and Smith & Wesson.

The act bans most lawsuits against the firearms industry, Judge Weinstein conceded. But a narrow exception allows lawsuits when a gun maker or dealer has knowingly violated state or federal statutes in sales and marketing practices -- by knowingly selling a weapon to someone who fails a criminal background check, for example.

The city contended the gun makers had made themselves liable under that narrow exception by failing to monitor firearms retailers closely enough and thus allowing guns to end up in the hands of criminals. Therefore, the city argued, the manufacturers had created a "condition that negatively affects the public health or safety," and were thus in violation of New York State's public nuisance law.

But their lawsuit has gone nowhere since. In April 2008, a three-judge panel of the 2nd U.S. Circuit Court of Appeals threw it out again, finding the new law to be constitutional. New York's final recourse was to appeal to the U.S. Supreme Court, which Monday refused to hear the case, quashing the city's last appeal.

Back-door gun prohibition seems to have fallen on hard times of late. Maybe the enemies of the Bill of Rights would be well-advised to pick a new target -- barring trial by jury, perhaps, or arguing that Congress should indeed "establish a religion," perhaps by creating a whole government department to prosecute people who disagree with those who hold it as a matter of religious faith that no weed or bug should ever again be allowed to go extinct, no matter what the cost.