By Brian Fahy & Garrett Fahy
In a June 23, 2013 New York Times article, “Make Gun Companies Pay Blood Money,” law school professors Lucinda Finley and John Culhane proposed that gun companies, those who import guns, or those who lawfully use guns should pay a sin tax based on the public threat of the particular gun. They further proposed a compensation system along the lines of the Vaccine Injury Compensation Program (VICP). These suggestions are misguided for a few reasons.
First, the vaccine analogy fails the lightest scrutiny. Under the VICP, those injured by a faulty vaccine are compensated from a fund financed by an excise tax on the sale of every dose of vaccine. However, logically applying this system to gun purchases would require payments by gun manufacturers to a fund that compensates only those injured by a gun’s malfunction. No one died in Newtown, Aurora or Virginia from the guns misfiring.
Further, such a system violates elemental legal principles of fault. The professors assert that those who derive benefits from guns should “shoulder some of the social costs of their choice,” but there are no social costs from lawful hunting, target practice, self-defense or collecting.
Thus, the professors proffer a proposal that violates a rule known to every first year torts student: the law holds individuals and companies responsible for the wrongs they commit. No rule imposes liability on individuals deriving lawful benefits from the safe use of a legal product.
Second, the professors assert that a sin tax would “exert at least some economic pressure on manufacturers to market especially lethal guns less aggressively.” Not likely. Any costs would simply injure the innocent by raising prices on law abiding gun purchasers. And this tax would have no impact on the two largest sources of deadly guns: the black market; and the unauthorized use of guns lawfully owned by others, as in Newtown.
Further, the professors’ approach is overly broad. They target “especially lethal” weapons but fail to define them. After the Newtown tragedy, national attention was focused on the AR-15. But most gun violence results from hand guns. Thus, the question is: which guns are the most lethal? Those that carry and shoot the most bullets; or those which cause the most crime?
Finally, and perhaps most disconcerting, no legal or constitutional authority is offered for the imposition of such a national tax on firearms. Currently, individual states determine sin taxes on soda, cigarettes, and unhealthy foods. By what authority may Congress set a national tax on products carefully regulated at the state level? None is suggested, and none likely exists.
A sin tax on guns sounds nice in theory, or in a law school discussion, but it is not legally supportable or feasible. In short, such a proposal misses the mark.