Mr. Russell C. Fericks, an attorney with the Salt Lake City law firm of Richards Brandt Miller & Nelson has decided to show the world his preference for absurd tort legal theory in an opinion piece on the Salt Lake Tribune web site. While the title he chose is laudable, “Stemming the tide of handgun violence in America”, a goal I think we can all agree on, it’s unfortunate the title is just about the only thing worth while in the whole piece.
He starts be recounting a “poignant” sob story, as if there is any other kind, about someone getting shot. It follows with Mr. Fericks, as the hero, suing the big bad gun company who made the firearm involved in the crime. Mr. Fericks must have realized that suing the actually party who committed the crime would not get his client or himself any money, and instead went after an uninvolved third party who had deeper pockets. He claims his “legal theory was simple”, that guns are “ultrahazardous” and the manufacturer was an “enabling element in most violent crime in the U.S.”. Of course this is an extreme extension of enabling theory in Tort law, typically the enabler (the gun maker) would have to be guilty of negligence, which seems to have been absent in the case that Mr. Fericks brought, considering the case was dismissed in a summary judgment.
He continues with the old anti-gun line that “the S&W .38 Special was the handgun of choice among criminals”, like I haven’t heard that one before. Well, the .38 also happens to be one of the most popular handguns ever made; in fact it is the only handgun that has been continuously produced since 1899. According to this report it also tops the list of handguns stolen by a margin of 2 to 1 over the next highest on the list. Hardly S&W’s fault. As one can see, Mr. Fericks’ un-sourced “statistic” is meaningless.
Next he goes on to complain that President Bush signed the Protection of Lawful Commerce in Arms Act, as it shields law abiding gun manufactures from the kind of frivolous lawsuit that Mr. Fericks filed against S&W. A self serving complaint if I have ever heard one. He cites the litany of our sins, unsafe cars, tobacco, etc. and states “we will eventually come to grips with the catastrophic costs of handguns”. Well I am sorry Mr. Fericks, but I remain unimpressed. Dramatic phrases are not persuasive any more, you have to back up your claims with facts, and if you are only looking at the costs in your analysis you are not seeing the whole picture.
Finally he states that there are parts of the Constitution he does respect, the forth and fifth amendments apparently. But he seems to imply that the phrase “the people” used in the forth and fifth amendments somehow magically mean something else when used in the second. I recommend that Mr. Fericks needs to spend some time learning his history, and read what the founding fathers said in other documents of the time period relating to the second amendment. He needs to understand what was meant by those words, as perplexing as they must seem to Mr. Fericks. For anyone with intellectual honesty will admit, after some time in the documents, that the second amendment means what it says about a right of the people. And it is Mr. Fericks’ collective-militia muddling argument that does not stand up to scrutiny in the end.
However, there is hope for Mr. Fericks on some level. He seems to realize the futility of banning guns, as evidenced by his recognition of the disaster of prohibition in the 1920’s. If that is the case, I recommend that our writer take a look across the pond to England, and see what a mess they have made for themselves when they banned handguns. They have left their law abiding subjects utterly defenseless against an increasing criminal element seizing on their newfound advantage. I am sorry Mr. Fericks, but I do not want what they are dealing with here, perhaps you could practice law over there, instead of importing their mess to us.