By Karen MacNutt,
Contributing Editor

"Vigilante. One who takes or who advocates the taking of law enforcement into one's own hands."
The American Heritage High School Dictionary

A person who exercises the right of self-defense is not a vigilante. She, or he, only uses enough force to stop an unlawful aggression. The goal is to protect, not to punish.

The vigilante, in contrast, seeks out people whom she or he believes may have violated the law or the beliefs of the vigilante. The vigilante punishes others without lawful authority. The vigilante's victim is not given a lawful trial to determine guilt or innocence. Vigilantes do not follow the Constitution. Sometimes the "crimes" they attempt to punish others for are not even crimes. They set themselves above the rule of law. Without law, anarchy rules and no person's life, liberty or property is secure.

Last April, the world saw the face of anarchy in Baghdad. Looters sacked the city while Iraqi mobs attacked people they disliked.

In the midst of the Iraqi War news, my attention was caught by the TV program "Bill Moyer's Journal." The program featured a story about Bob Ricker, the former gun company representative who now supports lawsuits against gun manufacturers. Ricker, it was said, was going to testify that the gun manufacturers knew that their guns were being sold to criminals but that they, the manufacturers, chose to do nothing about it. Anti-gun groups heralded Ricker as their breakthrough witness. Up to this point, suits against the manufacturers had not been very successful, at least in terms of legal findings. But the purpose of the suits seemed to be to drive the manufacturers into bankruptcy by choking them with legal costs, and there was some success there.

A major claim made against the gun manufacturers was that the manufacturers marketed their guns to criminals. Therefore, they should be liable to the cities for the cost of law enforcement. The suits did not allege that the manufacturers violated current laws.

I was curious to see what Ricker would say in the interview. Putting aside some dubious statistics relating to the number of guns used in crime, a number of interesting things came out of the interview.

It was said that the manufacturers knew there were "bad" dealers and distributors. These dealers sold a disproportionate number of guns used in crime. In fact, some 36 dealers, according to the story, accounted for most of the guns used in crime. Industry, it was alleged, knew their guns were used by criminals. Industry knew the majority of guns ending up in the hands of criminals were being sold by a small number of dealers. Industry knew how to curb sales to these dealers but had failed to do so. Ricker stated that he had been present when these facts were discussed by the manufacturers and their lawyers.

How did the manufacturers know that 36 dealers had sold the vast majority of guns used in crime? According to the story, they knew, or should have known, who these dealers were by looking at information published by the federal Bureau of Alcohol, Tobacco and Firearms, (ATF) on the Internet. The ATF had compiled a list of all guns they had traced. They identified the dealer who sold the gun and then placed the information on the Internet. (The ATF has since stopped publishing the list of all guns traced.) In short, the manufacturers had no knowledge about the illegal sale of guns beyond that which was collected by the government and made available to the general public. Anyone looking at the list could see how many guns sold by a particular federally licensed dealer had ended up being traced through the ATF.

Highly Regulated
The gun industry is highly regulated. Dealers need to be licensed by the federal government. They are required to keep extensive records. Federal law provides for categories of people who are disqualified from having guns. If someone knowingly and willfully provides a gun to be used in a crime, or gives a gun to a person prohibited by law from having a gun, he or she is guilty of a crime. Such a person should be prosecuted and sent to jail.

When Ricker decided to leave the employ of the manufacturers, he did not take his story of dealer misconduct to law enforcement. He took it to the lawyers suing the manufacturers for money.

Why did Ricker not go to law enforcement? According to the commentator, there were two reasons.

The first excuse was that the ATF, the federal agency that enforces gun laws, was overworked. It had too few people to regulate the thousands of dealers who sold guns. It was unable to investigate or prosecute all those dealers.

This did not make much sense because the anti-gun lawyers had just stated that only 36 dealers accounted for the majority of guns being recovered by the police. Thiry-six dealers would not seem to be an excessive number of businesses for the Federal government to investigate. Since many dealers also have state licenses, the ATF could have asked for help from local governments.

The second excuse was that the ATF was apparently not interested in prosecuting these dealers. This is not surprising if the only evidence ATF had was a statistical ranking. A statistical ranking may be enough to start an investigation but it is not enough to obtain a conviction. If the rule of thumb was to arrest anyone who was at the top of the list of dealers who most often were the subject of gun traces, then within a short time everyone on the list would be arrested. The top ranking dealer on the list would change with each arrest.

Many issues must be addressed before a fair inference could be made that a dealer is engaged in an illegal act.

The first question that must be asked is:

What guns did the ATF include on its list? Were the guns on the ATF's list actually used in crime or were they guns that a ballistics trace was run on? Were they recovered stolen guns? Were they guns originally sold to government agencies?

Assuming that all the guns traced by the ATF were used in a crime, a second question would be:

How many guns of all descriptions did the so-called bad dealers sell in comparison to other dealers? A dealer with a high volume of sales will have a higher number of guns that might end up being traced by the police than would a dealer with a low volume. For example, if a dealer sold two guns per year and one was misused, he would have 50% misuse rate. If a dealer sold a 10,000 guns per year and 10 were used in crimes, he would have a .01% abuse rate. However, he sold ten misused guns in comparison to the other dealer who sold only one. Many federal firearms license holders are low volume dealers. The number of active, high volume dealers is not large in comparison to other commercial activities. Figures can be meaningless.

A third question would be:

How many times had the gun changed hands since it left the dealer? If the gun had been sold several times after leaving the dealer's control, there is no connection between the dealer and the misuse. A manufacturer would have no way of knowing how many times a gun had been transferred after leaving the dealer to whom it was originally sold. Guns are durable commodities. They will often go through a number of different owners and can remain safe to shoot for over a 100 years.

Other Questions
Other questions a careful investigator might ask would be: Did the dealer comply with all the laws governing transfers? The ATF, not the manufacturer, has the ability to answer that question. Did the dealer experience a break-in and theft of guns that was beyond his control? Has the dealer been cooperative with law enforcement? Has the dealer been the victim of employee misconduct? Only law enforcement, not the manufacturers, can address those questions.

All dealers must be licensed. It is fair to assume the ATF would not license a dealer if it had probable cause to believe the dealer was engaged in wrongful conduct. If there is a question as to whether or not the dealer's conduct was wrongful, the law provides a hearing or appeal process in which the question can be determined in accordance with the law. Indeed, the ATF and the local police are supposed to bring criminal charges against those they have probable cause to believe are violating the laws relating to the sale of guns. The ATF has not brought criminal charges against the so-called bad dealers because they do not have probable cause to believe the law is being broken.

The manufacturers have the right to rely upon the licenses granted to dealers by the ATF as proof that a dealer is in compliance with the law. Manufacturers have no legal authority to conduct such investigations.

An assumption of wrong doing from statistical figures without investigation of all relevant factors is not reliable. A number of years ago someone noted that 90% of all mass murderers ate bread within 24 hours of committing their crime. The statement, even if true, does not support the conclusion that eating bread causes crime nor, does it support the conclusion that by prohibiting people from eating bread we will reduce crime.

What is it that those who are suing the gun manufactures want? Bob Ricker is saying, in essence, that the gun manufacturers should do a statistical analysis and refuse to sell guns to dealers whose guns end up in the ATF records of traced guns. He is saying that it is wrong for the manufacturers to continue to sell guns to those dealers.

If the manufacturers refused to sell their produce to a properly licensed dealer, they would be assuming the dealer's guilt on facts that the government found inadequate. By refusing to sell to the dealer, the manufacturer would put the dealer out of business without giving the dealer a chance to present his side of the story. The dealer's only recourse would be to sue the manufacturer for a violation of the fair trade laws, for defamation and for unlawful interference with an advantageous business relationship. Federal law makes combinations in restraint of trade illegal. Any agreement by manufacturers not to sell to licensed dealers would seem to be a violation of those laws and would open the manufacturer to being sued. This seems to place the manufacturers in a no-win situation. No matter what they do, they face legal action.

Stripped of all the rhetoric, what the anti-gun forces want the manufacturers to do is to condemn dealers without the chance of trial and to subject them to economic death. They want the manufacturers to do this because there is insufficient probable cause for the government to take action through lawful channels.

Under our system of government, the legislative branch sets policy and passes laws. The function of the courts is to interpret the laws much as an umpire rules on the plays in a baseball game. It is not the court's duty to make up the rules. The anti-gun forces have rejected democratic principals. The same lack of faith they have in the common person's ability to have a gun apparently extends to the common person's ability to control the political process.

They have turned their back on due process and the procedural protections of the Constitution. They reject the concept that a person is innocent until proven guilty. They are unwilling to let law enforcement do its job. They want to take law enforcement into their own hands. They are in every sense of the word "vigilantes". The only "wrongful" conduct engaged in the by gun manufacturers would appear to be that they are unwilling to join the anti-gun lobby's lynch mob.