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Because of the Second Amendment guarantee of the right to bear arms, removing a defective firearm from the market is deliberately difficult.
The Remington class-action settlement — in which the company maintains the guns are safe — comes 44 years after the first lawsuit over the popular Model 700 rifle was filed in Pennsylvania in 1971. The following year, when Congress passed the law establishing the Consumer Product Safety Commission "to protect the public against unreasonable risks of injury associated with consumer products," it barred the new agency from regulating firearms.
To gun rights advocates, it stands to reason. Allowing the federal government to order a recall of guns would fly in the face of that Second Amendment guarantee. Even Richard Barber, who blames an allegedly defective Remington Model 700 rifle for the death of his 9-year-old son in 2000, says the government has no place in the debate.
"If you give the government the power to regulate, they could use that to destroy an industry — any industry that exists today," Barber says. "We've seen it time and time again."
Besides, the gun industry will readily note, guns are already heavily regulated by state and local laws, and by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. But none of the regulations cover product safety, leaving it to gun manufacturers to police themselves. All of them — Remington included — have issued recalls in the past. But under the system, only the courts and customers themselves can hold manufacturers accountable for defective guns. Barber says that is exactly what he has been doing in his 15-year crusade against Remington.
"I'm protecting people's rights to bear arms because what I'm showing is we don't need government regulation," he says. "This isn't a gun rights issue. This is a gun safety issue, period, the end."
Public Justice Chairman Arthur Bryant, who secured the release of hundreds of thousands of pages of Remington internal documents about the rifles, agrees.
"I think Second Amendment rights are critically important and need to be protected," he says. "But so do First Amendment rights, Fourth Amendment rights, Fifth Amendment rights, all of our constitutional rights. So do our rights to life, liberty and happiness, and if your gun fires when no one pulls the trigger you can kiss all the rest of those rights goodbye."
Even so, there have been plenty of unsuccessful attempts over the years to expand the CPSC's authority to include firearms, including a bill introduced in the House of Representatives in January by Illinois Democrat Robin Kelly, who wanted to allow the CPSC to regulate firearms "in the same manner as other potentially harmful consumer products like fireworks, bicycles, car safety seats and cribs." The bill died in committee.
In many cases, the efforts have been aimed at curbing gun violence, but some have also involved product safety. After all, proponents have argued, the agency is already regulating similar products such as air rifles and pellet guns.
In October 2012, for example, the CPSC announced a voluntary recall of Striker air rifles produced in 2011 and 2012 by Bentonville, Arkansas-based Hatsan USA, after a report that the guns could fire unexpectedly when closing the action. The complaint is similar to one of the malfunctions reported in some of the Remington rifles.
The CPSC said the Hatsan recall followed a single reported incident. There have been no injuries, and the recall involves approximately 2,400 guns.
By contrast, there have been thousands of customer complaints involving the Remington rifles spanning decades, allegations of at least two dozen related deaths, and some 7.5 million guns involved.