Are guns a public nuisance?

You may have heard that a state judge in Oklahoma found Johnson & Johnson and its subsidiaries legally liable for their role in Oklahoma’s so-called “opioid crisis.” In brief, the case against Johnson & Johnson was brought by the Attorney General of the State of Oklahoma, Mike Hunter, who alleged that Johnson & Johnson had created a “public nuisance” by launching a misleading marketing campaign that overstated the benefits of their opioid products and understated the risk of addiction.

This theory of liability is thus based on tort law (but see Merrill, 2011)–specifically, the tort of public nuisance. According to the Restatement of Torts, for example, a public nuisance is an “unreasonable interference with a [legal] right common to the general public.” (See Restatement (Second) of Torts, §821B.)  In general, public nuisances are harms that threaten a community’s health, safety, or overall welfare. Common types of public nuisance include pollution, drug activity, explosives storage, and possession of dangerous animals. But here’s the legal rub: the number of people harmed by an activity doesn’t transform a private nuisance into a public one–rather, the public must be harmed in a manner specifically prohibited by state of federal law.

So, why hasn’t any state attorney general asked a court to declare guns a public nuisance? They have, but Congress enacted a controversial law in 2005 called the Protection of Lawful Commerce in Arms Act, which is codified at 15 US Code §§7901-7903 and is available here for your reading pleasure. This little law is a textbook example of special-interest legislation, for it shields manufacturers and dealers of firearms from legal liability for any crimes committed with their products. (By the way, the supposedly “liberal” Bernie Sanders voted in favor of that law; see what happens when Hillary Clinton called him out on his hypocrisy in the video below.)

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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