Regulating Guns as Products

92 Pages Posted: 27 Apr 2023 Last revised: 28 Feb 2024

See all articles by Benjamin L. Cavataro

Benjamin L. Cavataro

Villanova University - Charles Widger School of Law

Date Written: March 9, 2023

Abstract

Toy guns are subject to federal product safety regulation. Real guns are not. If a defect in an air rifle causes it to discharge without warning, the manufacturer would be required to promptly notify a safety regulator (the Consumer Product Safety Commission); to recall the air rifle; and to provide a repair, replacement, or refund to consumers. Yet when such defects occur in real guns, the firearms industry has no such obligation. This unique immunity from product safety regulation allows gun defects to go unremedied for far too long. The result is tragic: needless deaths and injuries of police officers, ordinary gun owners, children, and bystanders.

This article argues that the status quo is unacceptable, and proposes a clear, workable solution. Congress should empower the Commission to regulate the safety of guns as products, without granting the Commission authority over "gun control" as traditionally understood. This approach resolves the inadequacies of industry self-regulation, tort, and state consumer law; appropriately leverages the existing Consumer Product Safety Act framework; and is consistent with the Commission’s longstanding oversight of holsters, gun locks, and gun safes. Under this approach, the firearms industry would be obligated to report safety defects, recall dangerously defective firearms, and offer remedies to consumers. The Commission could also consider adopting common-sense product safety standards (such as regulations to ensure that new firearms have functional safety devices, and do not discharge without a trigger pull), just as the Commission adopts safety standards for many other consumer products. But the Commission would be precluded from regulating guns to curtail gun violence or suicide, or to reduce guns’ prevalence.

This approach is fully compatible with the Second Amendment in light of New York State Rifle and Pistol Association v. Bruen (2022). And lifting the firearms industry’s immunity from product safety law—thereby regulating guns as products—has helpful implications for broader debates on gun law and policy. By establishing that Commission regulation could simultaneously protect the public from harm and facilitate the right to lawful self-defense, this Article’s proposal demonstrates that some gun regulations can concurrently respect gun rights, uphold consumers’ rights, and protect lives—and, in doing so, reveals fissures between the interests of the gun industry and gun owners.

Keywords: Second Amendment, regulation, firearms law, administrative law, product safety, Consumer Product Safety Commission

Suggested Citation

Cavataro, Benjamin, Regulating Guns as Products (March 9, 2023). 92 Geo. Wash. L. Rev. 87 (2024), Available at SSRN: https://ssrn.com/abstract=4418326

Benjamin Cavataro (Contact Author)

Villanova University - Charles Widger School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
159
Abstract Views
918
Rank
350,267
PlumX Metrics