Litigation as Education: The Role of Public Health to Prevent Weaponizing Second Amendment Rights

Abstract

Tobacco litigation was unquestionably successful, but it is dangerous to expect that it can be easily duplicated. An unrealistic reliance on litigation as a regulatory measure can blind public health advocates to other mechanisms of change. And that includes litigation as a means of enabling actual regulation. Firearms and the gun violence epidemic provides a useful case study. The Protection of Lawful Commerce in Arms Act (PLCAA) essentially bars litigation as a regulatory tool for firearms. This legislation means every time someone pulls the trigger, they become the party to blame. Soto v. Bushmaster Firearms presents a rare exception based on wrongful marketing, yet, even this case holds most of its promise in the potential for discovery.

But public health litigation for firearms is by no means a lost cause. Rather than focusing on litigation liability, public health can play an essential role in litigation around constitutionality of regulations. There are Second Amendment challenges at every level of the judiciary. And how those cases are evaluated will have a dramatic impact on the available options for tackling gun violence moving forward. Yet, public health’s role in the constitutional interpretation of firearm regulations has been relatively minor. The judiciary's ability to understand public health principles, public health law, and gun violence as a public health problem could have a significant influence over what direction these cases go. Consequently, the public health community must play a larger role in these cases for any chance at successfully stemming growing tide of gun violence.

Keywords: Second Amendment, gun violence, public health, constitutional law, rights, public safety, litigation, judiciary, amicus briefs, education