Guns and Alcohol

Eugene Volokh· presents a hypothetical “alcohol manufacturers lawsuit”· in which alcohol manufacturers are accused of “knowingly participat[ing] in and facilitat[ing] the secondary market where persons who are illegal purchasers . . . . obtain their alcohol.” Volokh suggests that imposing a heavy burden on manufacturers to prevent retailers from selling alcohol to people who will pass it on to minors is absurd, but that this is nearly exactly the same logic used in a recent Ninth Circuit decision involving firearm manufacturers.

My immediate reaction is that guns and alcohol are sufficiently different sorts of things that the parallelism doesn’t hold. Volokh does note that alcohol “causes” three times more deaths than guns, but I don’t think raw numbers of fatalities is the issue here. I think it’s reasonable to impose substantial duties on the entire supply chain of firearms, from the manufacturers all the way to the final purchasers. That we impose less substantial duties on the alcohol supply chain is not inconsistent: it’s a policy judgment that takes place both in the legislature and in the courts. Even if alcohol is more “dangerous” in some sense, it might be the case that: (1) we, as a society, feel that there are also more benefits associated with alcohol than with guns, and thus are more willing to tolerate the costs; (2) alcohol might just be much more costly to police (e.g., the failure of prohibition); (3) firearms affect more “innocent” third-parties than does alcohol (this might be refuted statistically); (4) perhaps the only reason there are more fatalities associated with alcohol than with firearms is because we’ve imposed substantial regulations—there’s no possible “state of nature” possible comparison between firearms and alcohol.

It’s a common rhetorical device to show how this sort of substitution gives an absurd result, but I don’t think the argument is compelling in this example. I don’t believe there is a “slippery slope” argument that attaching these sorts of duties to gun manufacturers is likely to spill over to other industries. I think it’s enough to say that commonly held social values put firearms in a different place than other items, and argument that seems silly when applied to alcohol (or, for example, pencils, which also cause a certain number of injuries) is not absurd in the context of guns.