To: Sen. Amy Klobuchar
Sen. Al Franken
Your offices have sent out Thanksgiving cheer to your constituents. Thanksgiving is a uniquely American holiday. The traditional story is that Thanksgiving was first celebrated in 1621 by the Pilgrims, fresh off the Mayflower, with members of the Wampanoag tribe. These are the Native Americans who taught the Pilgrims how to cultivate corn, draw sap from maple trees and catch fish in the local rivers. The whole Mayflower trip was a voyage financed by the Company of Merchant Adventurers of London, a joint stock corporation. Lawyers thus had a hand in the very beginning of one of our country’s favorite holiday stories. And while the Mayflower had no lawyers aboard, they did require that men have 20 pounds of powder and 60 pounds of shot. Guns, too, are an important part of our holiday story.
Unfortunately, guns are part of almost every day’s news in this country. Roseburg and Umpqua Community College in rural Oregon was the scene of a mass killing of nine in early October. Two weeks before, there was a mass killing in Platte, S.D. Later in the month, there were mass shootings on ZombiCon in Fort Myers, Fla. Certainly by the time of our actual Thanksgiving feast, most of these weekly occurrences will have passed into our numbed subconscious to be replaced by new mass shootings.
A timeline of U.S. mass killings, including many not reported by the FBI, is maintained by USA Today and can be found at masskillings.usatoday.com. Another chilling site is shootingtracker.com, which claims to provide the raw data for all mass shootings in the United States for the years 2013-15. There have been massacres in Wisconsin and at the Accent Signage Company here in Minneapolis. There have been mass killings using firearms in almost every state of the union since those Pilgrims came ashore. This country has an extensive history with the use of firearms.
As senators, you are no doubt aware of the inconsistent hodgepodge of ineffective and intentionally unenforceable gun laws. The Second Amendment of the United States Constitution is often cited for the proposition that anybody can buy any kind of gun, any time he or she wants. This is clearly not good jurisprudence. The size of magazines could be controlled—as they currently are for shotguns used to hunt waterfowl.
Registration of guns in an accurate and complete database is no more unconstitutional than the claim that the registration of motor vehicles is prohibited by the right of citizens to move freely about the country. The Second Amendment does not require individuals to own “metal-penetrating bullets,” which are illegal both federally and in Minnesota. No Second Amendment argument exists to prohibit people under the age of 21 from carrying semiautomatic military-style assault weapons (a felony in Minnesota). Nor does the Second Amendment prohibit the banning of a wide variety of currently existing weapons: machine guns, “street sweepers” and other fully automatic military-style assault weapons.
There would be a number of citizens who regarded this Thanksgiving with thankfulness, indeed, if sensible registration, permit and background-check legislation were to be adopted. Instead, in 2005, Congress passed the Protection of Lawful Commerce in Arms Act, a federal statute that provides broad immunity to gun manufacturers and dealers in federal and state courts—Thanksgiving for the gun industry. Since the PLCAA was passed, efforts to sue gun manufacturers or dealers under public nuisance law, general negligence law or strict liability law have been unsuccessful.
Just as the Pilgrims brought ashore their desire for religious liberty and their storehouse of powder and shot, they also brought ashore an English system of law and government. Our unique common law system is predicated on the idea that any person can sue the king and have the case heard before a jury of peers who will determine the outcome of the case based on the facts presented. Public nuisance and negligence are legal concepts that have grown up in our common law system.
The PLCAA creates unprecedented immunity that no other industry in America enjoys. International oil companies can be held accountable for negligence in our courts of law. Huge telecommunication giants can be required to stand before a jury of American citizens for violation of the law. Speakers of the House, even senators, governors, the high and the low in society can be judged by a jury in this country. But not gun manufacturers and their dealers. This Thanksgiving, why don’t you two senators move to repeal this law?
After all, it was the common law system that greatly improved the safety of automobiles in this country. Cars no longer explode because their gas tanks rupture easily. Veterans exposed to Agent Orange had their claims adjudicated by a jury. Tobacco companies too powerful to be legislated against could not withstand the glare of our jury system, and an American compromise on the use of tobacco has emerged. The same thing would happen if we allowed lawyers to bring claims of public nuisance and negligence against gun manufacturers and gun dealers. The American jury system would impose its judgment on this industry, as it can with almost anyone else.
So I ask, as you contemplate the American holiday of Thanksgiving, to reflect upon the rightful place of firearms in our Second Amendment and the role of the American jury system. Over time, we could have fewer horrific news stories and more real Thanksgivings.
Vance K. Opperman
Gun Owner and Lawyer
Vance K. Opperman (firstname.lastname@example.org) is owner and CEO of MSP Communications, which publishes Twin Cities Business.