When 'thoughts and prayers' become policy

At last Wednesday's mass shooting press conference, a reporter asked the Minneapolis Police Chief: "What can we do to stop this from happening again?" Reminiscent of the adage that fools give you reasons, wise men never try, the chief wisely responded: "I don't know how to answer that." He did say his officers were traumatized by what they saw at the church, where so many elementary school children were killed or wounded during their first week in school. Parents of deceased and wounded youngsters, and the entire community of Minneapolis, instantly became mass victims of this senseless act. As the mayor pleaded with viewers, our nation should respond as if these children belong to each of us.

Politicians often remark that our national espirit de corps is aptly characterized via monikers like American Exceptionalism. Perhaps one example would be the Minneapolis fifth grader's courageous friend who saved him, by jumping on top of him to take a bullet. YouTube video, (Aug. 27, 2025) (https://www.youtube.com/watch?v=XwZ7lrOEsGY). The U.S. is exceptional, but not in ways we always like to admit. One of them is that the number one cause of childhood death is gun violence. John Hopkins Bloomberg Scholl of Public Health, "New Report Highlights U.S. 2022 Gun-Related Deaths" (Aug. 12, 2024).

There must be better answers to the above reporter's question about stopping gun violence. Arming teachers, active shooter drills, more good guys with guns and countless other "answers" are the proverbial band-aid solutions to the gun violence epidemic with which we are becoming anesthetized.

There is no single answer. But there is a proximate cause. As that concept is legally defined: "A substantial factor in causing harm is a factor that ... contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm." Cal. Civil Jury Instruction No. 430 (2024). Congress fell silent when the national assault weapons ban expired in 2004. Ron Elving, "The U.S. Once Had a Ban on Assault Weapons‒Why Did it Expire?", NPR (Aug. 13, 2019). Its members spoke volumes, however, when they enacted the 2005 Protection of Lawful Commerce in Arms Act (hereafter Arms Act). Pursuant to its introductory findings: "Lawsuits have been [wrongly] commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals." Section 2, Public Law 109-92, 119 Stat. 2095 (109th Congress, Oct. 26, 2005) (italics added). 

This statute insulates the gun industry from most lawsuits alleging that its products, advertising and distribution practices contribute to the scourge of gun violence we've endured or witnessed in the interim decades. The Arms Act shot down industry responsibility for conduct that is predictable, not remote or trivial, including downstream sales practices the industry allegedly promotes. As vividly illustrated in the Sandy Hook Elementary School case, Soto v. Bushmaster Firearms Int'l, LLC, 331 Conn. 53, 202 A.3d 262 (2019), cert. den'd, 140 S. Ct. 513 (2019): The defendants "promoted use of the XM15-E2S [assault rifle] for offensive, assaultive purposes‒specifically, for 'waging war and killing human beings'‒and not solely for self-defense, hunting, target practice, collection, or other legitimate civilian firearm uses ... extolled the militaristic qualities of the [rifle; and] . . . advertised the [rifle] as a weapon that allows a single individual to force his multiple opponents to 'bow down.' " Soto, 86-87, 284.

The routine charging allegations include straw purchases, hundreds of thousands of illegal gun transfers each year, and other predictable bad apple behavior. One can Google the quintessential case that charges the industry with such conduct: Estados Unidos Mexicanos v. Smith & Wesson, 605 U.S. 280 (2025). The U.S. Supreme Court, by reversing and remanding Mexico's pleadings for any further proceedings, held that "Mexico's plausible allegations are of 'indifferen[ce],' rather than assistance. They are of the manufacturers' merely allowing some unidentified 'bad actors' to make illegal use of their wares." ... ⁋ [Thus,] "a 'failure to stop' independent retailers downstream from making unlawful sales...[i.e.,] 'omissions' and 'inactions,' ... are rarely the stuff of aiding-and-abetting liability. ⁋ Finally, ... the failure to improve gun design ... cannot in the end show that the manufacturers have 'join[ed] both mind and hand' with lawbreakers in the way needed to aid and abet." Smith & Wesson, 297-298. The court had no other option, given the congressional bullseye on industry accountability.

There is a much litigated "predicate exception" to the Arms Act. A complaint can trigger an exception-violation "when a plaintiff makes a plausible allegation that a gun manufacturer 'participate[d] in' a firearms violation 'as in something that [it] wishe[d] to bring about' and sought to make succeed. Because Mexico's complaint fails to do so, the defendant manufacturers retain their PLCAA-granted immunity." Smith & Wesson, 299. But see Slomanson, "Iron River Case: Blueprint for Gun Trafficking Analytics," 56 Suffolk University Law Review 1, 11-15 Analyzing the Debate (2023) (available online).

As of this writing, Mexico has not refiled an amended complaint. But it has sued some downstream gun industry members in other courts. See, e.g., Estados Unidos Mexicanos v. Diamondback Shooting Sports Incorporated, 2024 WL 1256038 (D. AZ, 2024). The plaintiff therein alleged negligence, public nuisance, negligent entrustment, negligence per se, gross negligence, unjust enrichment, violation of Arizona's Consumer Fraud Act and violations of the Racketeer Influenced and Corrupt Organizations Act. As of this writing, three of Mexico's counts were dismissed, with nine surviving the defense motion to dismiss the complaint.    

One could knock out your child's eye with a Nerf play gun. The deep-pocket manufacturer could be a co-defendant, via a personal injury products liability suit. If the same person shot your child with an assault rifle, however, it would be nearly impossible to sue the gun manufacturer for a product defect, or for nefarious advertising and distribution practices resulting in such serious harm. Antidotes for such immunization should not be injected into this political shootout in terms of gun rights versus gun control, right versus left or competing political persuasions. We all bleed red, white and blue. 

Motivational speakers often ask: "Where do you see yourself in 10 years?" George Eliot's 1848 adage cautions that "history, we know, is apt to repeat itself." Fred. Shapiro, "The New Yale Book of Quotations," p. 658 (Yale Univ. Press, 2021). We must vote for inspirational leadership that offers more than thoughts and prayers in response to the disgraceful carnage in Minneapolis. The president cannot bring about a significant change in gun violence with an executive order. But Congress has the bipartisan ability to spectacularly reduce today's level of gun violence. It must first scale down the chorus that meekly chants only thoughts and prayers. A more thoughtful approach would trump political leaders who invoke hackneyed responses like "If it ain't broke, don't fix it," a 1997 saying attributed to Tom Lance, President Jimmy Carter's Director of the Office of Management and Budget. Gary Martin, Phrase Finder, (https://www.phrases.org.uk/meanings/if-it-aint-broke-dont-fix-it.html).

The Arms Act is working for the congressional majority. It is not working for the country's majority. Congress must revisit and revise the Arms Act to limit its oceanic protection of the gun industry. It is arguably the largest of the stumbling blocks to protecting our churches, schools, neighborhoods and business venues from the continuing assaults that will otherwise usher in a hail of bullets during these next 10 years. U.S. representatives and senators whose children have not yet been murdered or wounded should listen to their constituents. About six in 10 U.S. adults (58%) favor stricter gun laws. The majority of Americans (61%) say it is too easy to legally obtain a gun in this country. More than half of U.S. adults say an increase in the number of guns in the country is bad for society. There is broad partisan agreement on some gun policy proposals, but most are politically divisive. These statistics are available at Katherine Schaeffer, Pew Research Center, Key facts about Americans and guns (July 24, 2024)(https://www.pewresearch.org/short-reads/2024/07/24/key-facts-about-americans-and-guns).

Members of Congress: Your constituents deal daily with the fallout triggered by the Protection of Lawful Commerce in Arms Act. They want common-sense answers to the national gun violence nightmare that demands more than just thoughts and prayers. President Harry Truman's buck stops with you, on Capitol Hill, where a sizeable slice of accountability lies for the gun violence venom that has poisoned America's streets for the last two decades.