ARGETING SAFETY. How State Attorneys General Can Act Now to Save Lives CENTER TO PREVENT HANDGUN VIOLENCE LEGAL ACTION PROJECT

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1 How State Attorneys General Can Act Now to Save Lives ARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE LEGAL ACTION PROJECT PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 1

2 Executive Summary TABLE OF CONTENTS EXECUTIVE SUMMARY i PART ONE Aiming for Gun Safety Introduction The Compelling Need for State Consumer Safety Regulations of Guns What States Can Do: Baby FTC Acts What They Are and How They Provide Attorneys General with the Power to Require Safer Guns How to Make Guns Safer: The Massachusetts Handgun Safety Regulations and Suggested Regulations What to Expect: The Gun Industry s Legal Challenges to the Massachusetts Regulations Constitutional Challenges: Why Gun Safety Standards Will Withstand Constitutional Scrutiny Conclusion Endnotes PART TWO Zeroing In On State Laws Alaska Florida Idaho Illinois Iowa Louisiana Maine Maryland Missouri Montana Nebraska New Jersey New Mexico Ohio Oregon Pennsylvania Rhode Island South Carolina Vermont West Virginia Appendices Despite progress in recent years, our nation still experiences rates of gun violence unimaginable in the rest of the industrialized world. The daily shootings in our streets and in our homes often children shooting other children and the horrific series of mass shootings in schools and workplaces serve as constant and grim reminders of this national tragedy. Although solutions to this tragic problem are varied and complicated, one central truth has emerged: the prevention of gun violence requires greater attention to the design of guns themselves. Safer guns can save lives, particularly young lives. The objective of safer guns, however, has been difficult to achieve. Due to the power of the gun lobby, guns made in America are subject to no federal consumer product safety standards whatsoever. An overwhelming majority of Americans favor federal legislation requiring certain gun safety devices. 1 These same Americans, however, do not expect Congress to pass such legislation. 2 One state Massachusetts, through its Attorney General has taken a bold step forward. It recently became the first state in the nation to implement far-reaching consumer product safety regulations for handguns under existing statutes prohibiting unfair and deceptive trade practices. In so doing, Massachusetts has become a model for the nation. This Special Report finds that in at least 20 other states, attorneys general or comparable officials have the legal authority right now to make guns safer and save lives. The Massachusetts statute, modeled after the TARGETING SAFETY Federal Trade Commission Act, authorized the attorney general to address unfair and deceptive trade practices. Arguing that design deficiencies that render guns susceptible to accidents or criminal misuse constitute unfair and deceptive trade practices, the Attorney General developed standards to address such deficiencies. For example, the Massachusetts gun safety regulations require pistols sold in the state to have either a magazine disconnect safety or a chamber loaded indicator. Either feature will help prevent unintentional shootings and can help save lives. Other regulations will also help protect gun owners from the unauthorized use of their firearms. These common sense gun safety measures met with staunch opposition from the gun industry. A leading gun industry trade group, the American Shooting Sports Council, joined with gun manufacturers and two Massachusetts gun dealers to challenge the Massachusetts regulations in court. The gun industry argued that the safety standards exceeded the Attorney General s authority under Massachusetts law. The Supreme Judicial Court of Massachusetts, however, determined that the Attorney General had the authority to address unfair and deceptive trade practices. Such authority properly extend[ed] to regulating the sale of a product as unfair or deceptive when the product is defective in ways which a purchaser would not anticipate. After the court recognized the Attorney General s power to promulgate gun safety standards, the gun industry backed away from its legal challenges. Now the state of Massachusetts has the most extensive gun safety standards in the country. The purpose of this report is not only to enhance public understanding of the dangers of unsafe guns, but also to galvanize state officials across the country to take action and address the nation s need for gun safety regulation.

3 Founded in 1983, The Center to Prevent Handgun Violence is a national non-profit organization working to reduce the tragic toll of handgun violence in America through education, research, and legal advocacy. The Center and its sister organization, Handgun Control, Inc., are leading national organizations committed to stopping gun violence in our communities. Both organizations are chaired by Sarah Brady. The Center s Legal Action Project provides free legal representation for victims in lawsuits against reckless gun manufacturers, dealers, and owners. The Project is also engaged in the defense of gun control laws challenged in courts. This report was written by Rachana Bhowmik, Staff Attorney for the Legal Action Project. Megan Dolan, Jessica Driscoll, Rachel Hoover, and Shawn Pearson provided extensive research assistance and helped draft portions of Part Two of the report. Dawn Canady also provided significant editorial assistance with research and final editing. Dennis Henigan provided editorial assistance. This report represents the views of the Center to Prevent Handgun Violence on the matters discussed, and should not be regarded as legal advice, nor should it be treated as a substitute for the independent advice of counsel. This material is provided for general discussion and reference purposes only. All material herein is protected by copyright law and may not be reproduced without express written permission of the Center to Prevent Handgun Violence. PART ONE Aiming for Gun Safety This report examines the hows and whys of gun safety regulation how gun safety regulations can be implemented and why they are needed. After an examination of the many costs guns exact from our society, the report focuses on the Massachusetts attorney general s gun safety regulations the law used to implement those gun safety standards, how those standards make guns safer, and how the standards withstood legal challenges by the gun industry. Copyright 2001 Center to Prevent Handgun Violence PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 1

4 Since the Consumer Product Safety Introduction For years, the manufacturers of some of the most lethal products on the market have enjoyed a free ride. These manufacturers have remained exempt from the most basic consumer product safety standards, while their products have caused the unnecessary deaths and injuries of tens of thousands of innocent people, costing the nation billions of dollars. That free ride is about to end. One state Massachusetts is treating gun manufacturers like other manufacturers of dangerous products. In so doing, Massachusetts has created a model for the nation. On April 3, 2000, the Attorney General of Massachusetts announced the enforcement of the most far-reaching gun safety initiative in the country. Using a state statute modeled on the Federal Trade Commission Act, the Attorney General exercised his power to address unfair and deceptive business practices, and implemented gun safety regulations that provide the people of Massachusetts with the strongest safety standards in the country. This report examines the statute the Massachusetts Attorney General used to enact gun safety standards, how this statute works, and how other state attorneys general, or in some cases, state commissions, can use similar existing state statutes to reduce deaths and injuries from unsafe guns. Indeed, at least 20 other states similarly empower attorneys general or state agencies to protect their states from unfair trade practices through baby FTC laws. These state attorneys general and other officials across the country can model firearm safety regulations on the Massachusetts regulations and thereby impose basic firearm safety standards without the need to pass additional federal or state legislation. 4 It s time for the gun industry to stop making excuses for the senseless tragedy their products cause each day; most handguns don t meet even the most basic safety requirements. We wouldn t accept that from any other product and we won t accept it from a product that leads to 30,000 deaths a year in this country. These are common sense regulations that will be enforced and will save lives. 3 Massachusetts Attorney General Tom Reilly The Compelling Need for State Consumer Safety Regulation of Guns The statistics are astounding: in 1998, 30,708 people in the United States died from firearm-related deaths 12,102 (39 percent) of those were murdered; 17,424 (57 percent) were suicides; 866 (3 percent) were accidents; and in 316 (1 percent) the intent was unknown. 5 Handguns constitute a minority of guns sold yet account for a vast majority of all firearm deaths. 6 For each handgun death, three people are injured. 7 As a household consumer product, guns pose significant risks. A gun in the home increases the risk of homicide in the home by threefold 8 and the risk of suicide by fivefold. 9 Indeed, a gun in the home is 22 times more likely to be used in an unintentional shooting, a criminal assault or homicide, or an attempted or completed suicide than to be used to injure or kill in self-defense. 10 In 1997, gunshot wounds were the second leading cause of injury death for men and women years of age second only to motor vehicle accidents 11 while the firearm injury death rate among males years of age was 42 percent higher than the motor vehicle traffic injury death rate. 12 Gunshot wounds cost Americans billions each year. Annual estimates of direct medical costs for firearm injuries range from $2.3 billion to $4 billion, 13 and additional indirect costs, such as lost potential earnings, were estimated at $19 billion in Our nation s children pay a high price for unsafe guns Easy access to guns, combined with unsafe gun design, has exacted a particularly tragic toll on our nation s children. The rate of firearm deaths among children 14 years old and younger is nearly 12 times higher in the United States than in 25 other industrialized countries combined. 15 The unintentional firearm-related death rate for this age group is 9 times higher in the United States than in those 25 other countries combined. 16 While unintentional shootings account for over 1,000 deaths each year, approximately 35 percent of these deaths involve users of guns who were between the ages of 13 and Guns not only take the lives of children in accidents and homicides, they are the preferred method of suicide in the United States for both young and old. More people kill themselves with guns than by all other methods combined. 18 Guns in the home have a particularly strong correlation with teen suicides. 19 For children under the age of 15, the rate of suicide in the United States is twice the rate of other countries. For suicides involving firearms, the rate is almost 11 times the rate for other countries combined. 20 In fact, studies show that guns in the home are the primary source for the firearms that teenagers use to kill themselves. 21 Domestically manufactured firearms are subject to no federal safety or health regulation Despite significant costs in both dollars and lives domestically manufactured firearms are not subject to any federal health or safety oversight. While the gun lobby is fond of demanding better enforcement of gun laws rather than the enactment of new ones, 22 the unfortunate truth is that there are no federal laws subjecting the domestic manufacture of firearms to health or safety standards. Imported firearms, however, are subject to certain federal gun safety standards. The Gun Control Act prohibits the importation of firearms unless they are particularly suitable for or readily adaptable to sporting purposes. 18 U.S.C. 925(d)(3). The ATF has determined that sporting purposes should be given a narrow reading, incorporating only the traditional sports of hunting and organized competitive target shooting. 23 In implementing this provision as to handguns, the ATF evaluates certain Commission s inception in 1972, nearly 50,000 people have been killed in unintentional shootings. factoring criteria, including minimum-size standards, safety features and other design features that must be considered when determining whether a handgun may be imported. 24 Although the sporting purposes test has been used to ban the importation of small, low quality Saturday Night Special handguns, as well as semiautomatic assault rifles, 25 it applies to no domestically produced guns. Not only are domestically produced firearms held to a lower standard than imports, they are specifically excluded from the United States Consumer Product Safety Commission s oversight. Congress created the Consumer Product Safety Commission ( CPSC ) in 1972 with the mandate to protect the public against unreasonable risks of injuries and deaths associated with consumer products. The CPSC has jurisdiction over close to 15,000 types of consumer products from automatic drip coffee makers to toys to lawn mowers. 26 Thanks to the gun lobby s efforts, however, domestically manufactured firearms and ammunition are not subject to oversight by the CPSC or any other federal health or safety com- 2 PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 3

5 mission. When the Senate passed the CPSC enabling legislation, it included firearms and ammunition within the CPSC s purview. 27 When Congress created the CPSC in 1972, however, Representative John Dingell, then a National Rifle Association ( NRA ) board member, successfully offered an amendment excluding firearms and ammunition from the supervision of the Commission. See 15 U.S.C. 2052(a)(1)(E). When asked why a bill to incorporate guns under the CPSC had failed in Congress, Senator Howard Metzenbaum said, The NRA s position is consistent. They re opposed to any legislation that has the word gun anywhere in it. 28 When asked what would happen if the NRA dropped its opposition to the bill, Metzenbaum replied, We would pass the bill overnight. 29 The CPSC has available a variety of methods to achieve its mandate. It develops voluntary standards with industries, issues and enforces mandatory standards, and works with industries to obtain the recall of products or arrange for the repair of defective products. The CPSC regularly issues recalls of products deemed unsafe from baby toys to cold medicine. 30 In stark contrast, despite statistics showing that since 1972, the year of the CPSC s inception, nearly 50,000 people have been killed in unintentional shootings, 31 and even though children as young as three years old can fire a gun and injure someone, 32 there is no federal agency to regulate the safety of guns. Given the tremendous risks guns pose to American families, particularly children, it is imperative that gun manufacturers be held to some standard of safety. Polls demonstrate that the American public supports such initiatives: 68 percent of Americans favor government safety regulations for guns. 33 As the federal government has failed to impose any consumer safety standards on firearms, the Massachusetts gun regulations provide an important model for other state attorneys general to enact commonsense safety regulations for a dangerous product. What States Can Do: Baby FTC Acts What They Are and How They Provide Attorneys General with the Power to Require Safer Guns Many states have laws granting consumers private rights of action against parties who commit unfair or deceptive trade practices. Modeled after a number of different sources, these laws are often called baby FTC or little FTC acts because they mirror rights provided by the Federal Trade Commission Act. In addition to granting rights to consumers, many of these laws provide attorneys general with the power to implement rules to enforce unfair and deceptive practice laws. See, e.g., Fla. Stat. ch ; Idaho Code ; 815 Ill. Comp. Stat. 505/4. The Attorney General of Massachusetts relied on such a statute when enacting the state s safety regulations. In Part Two of this Special Report, we provide brief overviews of the 20 state laws providing attorneys general or state agencies with powers similar to those used by the Massachusetts Attorney General to issue the Massachusetts gun safety regulations. Specifically, the Massachusetts General Laws, chapter 93A, entitled The Regulation of Business Practices for Consumers Protection, authorizes the regulation of any trade or commerce directly or indirectly affect[ing] the people. The Massachusetts law makes it unlawful to engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Mass. Gen. Laws Ann. Ch. 93A, 2(a) (1997). Section 2(c) authorizes the attorney general to make rules and regulations interpreting the provisions of section 2(a), thereby allowing him to define what constitutes an unfair or deceptive act. The attorney general also may identify particular business practices that should be considered unfair and deceptive. Accordingly, it is within the attorney general s statutory authority to promulgate regulations prohibiting the sale of handguns that fail to meet minimum safety and performance criteria. The only limitation on the attorney general s Chapter 93A authority is that the regulations promulgated cannot be inconsistent with Federal Trade Commission and federal court decisions. 34 Pursuant to the Federal Trade Commission Act, the Commission has the authority to enforce laws against unfair acts or deceptive practices. 15 U.S.C. 45(n). According to the FTC, the fundamental thrust in the unfairness doctrine is unjustified consumer injury. The three factors identified by the FTC for consideration in determining the fairness of a business practice are: 1. whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; 2. whether it is immoral, unethical, oppressive, or unscrupulous; 3. whether it causes substantial injury to consumers or competitors or other businessmen. Statement of Basis and Purpose of Trade Regulation Rule 408 [Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking] ( cigarette rule ), 29 Fed. Reg. 8324, 8355 (1964). The FTC elaborated on the unfairness standards and determined that an act is unfair if it is likely to cause substantial injury that cannot be reasonably avoided or the risks of the act are not outweighed by countervailing benefits. 35 Congress later amended the operative statutory language to codify these standards in 1994, which now provide: The Commission shall have no authority under this section or section 57a of this title to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination. 15 U.S.C. 45(n) (1997). FTC case law indicates that an injury is substantial if it involves major harms to even a relatively small group of people or small harms to a large group of people; 36 further, unwarranted health and safety risks constitute substantial injury. 37 Pursuant to FTC case law, deception is a particularly harmful form of conduct. The FTC requires a showing of only three elements to prove deception: 1. there must be a representation, practice, or omission likely to mislead consumers; 2. the consumers must be interpreting the message reasonably under the circumstances; and, 3. the misleading effect must be material, i.e. likely to affect the consumer s conduct or decision with regard to a product. 38 Applying these standards, the gun industry s commercial behavior is both deceptive and unfair. Not only is some of the gun industry s advertising arguably deceptive (see Page 9, Given the tremendous risks guns pose to American families, particularly children, it is imperative that gun manufacturers be held to some standard of safety. 4 PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 5

6 Trigger locks and other child safety devices infra), but under the FTC s threeprong cigarette rule and case law, the practice of marketing unreasonably dangerous firearms is unfair as it clearly increases unwarranted health and safety risks and causes substantial injury to consumers. Most state baby FTC acts require any regulation promulgated by an attorney general to look for guidance from FTC precedent. Importantly, however, many states have unfair and deceptive standards that are not as rigid as the FTC s and may provide much lower thresholds for any attorney generalpromulgated regulation. 39 Furthermore, the FTC does not address specifically consumer product safety and accordingly, any state gun safety regulations should not be preempted by FTC standards. How to Make Guns Safer: The Massachusetts Handgun Safety Regulations and Suggested Regulations In October of 1997, Scott Harshbarger, then Attorney General of Massachusetts, promulgated state consumer protection regulations of firearms pursuant to the powers granted to him by the state s baby FTC act in order to address the total lack of safety standards for domestically produced guns. The regulations prohibit the commercial sale or transfer of handguns that fail to satisfy prescribed safety and performance requirements as unfair or deceptive practices. The regulations target handguns due to the risks handguns can pose in the home. 40 The regulations, in part, provide: Handguns made from inferior materials must meet a rigorous performance test. Any handguns prone to accidental discharge or drop firing, explosion, repeated firing, or other failures are prohibited. All handguns must include tamper-resistant serial numbers. All handguns must be equipped with trigger locks and integrated devices that render it impossible for a child under 6 to pull the trigger. All handguns must be accompanied by a specific written warning provided by the Attorney General that explicitly describes the dangers of handgun misuse, the need to reduce thefts and accidents, and the need for safe storage and how that can reduce gun accidents. Semi-automatic handguns must have a load indicator or a magazine disconnect safety. See Mass. Regs. Code tit In addition, gun suppliers must explain to retail customers how to safely load, unload, and store the handgun, and how to engage and disengage all safety devices, along with other information about the gun. Any material misrepresentation or false certification in transferring handguns also violates the Attorney General s regulations. These safety standards address serious firearm safety hazards and, by requiring basic childproofing devices, represent a significant step toward treating guns like any other consumer product. For example, the prohibition on guns made from inferior materials that fail to meet a rigorous performance test will prevent the sale of guns that have little utility and pose significant dangers to users. Furthermore, the prohibition of guns that are susceptible to drop firing (accidentally discharging if dropped or mishandled) will prevent accidents involving poorly made guns. A handgun is considered to be prone to drop firing if several handguns of the same make and model fail successive drop tests. 41 In a drop test, a handgun is dropped onto a solid slab of concrete at a height of one meter from six different positions if it fires, it fails. 42 The drop firing standard and performance test requirement for guns made from inferior materials also prohibits most, if not all, Saturday Night Specials, poorly made handguns that are favored by criminals due to their cheap price and small size. 43 In fact these palm-sized, low quality, inexpensive pistols are among the most frequently recovered by police and confiscated from youth. 44 Such guns are easily concealed, easily purchased, and easily disposed. The Federal Gun Control Act of 1968 prohibited the importation of guns of this type, but domestically manufactured handguns were deliberately exempted from these criteria. 45 The great majority of Saturday Night Specials are produced by the same few companies and firearms experts consider them to be poorly made, unreliable, and in many instances unsafe. 46 The Massachusetts regulations require all guns to include tamperresistant serial numbers, and, as a safe harbor, a second hidden serial number in order to prevent criminals from gaining access to guns with easily removable serial numbers and to assist police in expediting investigations in which guns must be traced. Serial numbers are the best way to trace a gun and determine its owner, but many can be removed by using a tool such as a hammer, drill or grinding wheel. 47 Indeed, criminals regularly destroy the serial numbers from weapons. 48 Data from 1998 revealed that the serial numbers had been tampered with in some fashion on between 9 percent and 20 percent (depending on locale) of all guns recovered by law enforcement agencies. 49 In 1999, a survey of 11 cities indicated that up to 9 percent of recovered crime guns had obliterated serial numbers. 50 Including a tamperresistant serial number on a gun will deter criminal use of that gun as most criminals do not want to use a traceable firearm. Trigger locks and other child safety devices will prevent young children who gain access to guns from being able to fire them and will serve to improve overall firearm safety. 51 It is not uncommon for a small child, as young as two or three, to gain access to loaded guns and easily pull the trigger. In a 1991 study, the General Accounting Office ( GAO ) found that nearly eight percent of unintentional shooting deaths occur because children younger than six years of age were able to pull the trigger of a gun. 52 Gun manufacturers recognize the risk of such accidents. In 1997, a group of major gun manufacturers joined with President Clinton to announce they would provide trigger locks with all of their handguns. 53 Unfortunately, the agreement was voluntary and there is no means to enforce it. 54 The Massachusetts regulations, however, are mandatory and enforceable by law. The trigger locks mandated by Massachusetts law require some type of unlocking mechanism in order for the gun to be able to fire. Trigger locks are after-market devices that can be attached by the owner and do not require special outfitting. 55 Common examples of trigger locks currently on the market include locks that come in two oval-shaped halves that are placed inside the trigger guard, preventing anyone from being able to pull the trigger. Cable locks are inserted through a gun s action, preventing it from being engaged. A gun cannot be fired if the action cannot close. 56 These will prevent young children who gain access to guns from being able to fire them and will serve to improve overall firearm safety. types of locks are inexpensive and make firing a gun virtually impossible for a young child and thus effectively prevent children from harming themselves or others with a gun. 57 The Massachusetts regulations further require all semi-automatic handguns be equipped with a magazine disconnect safety or a loaded chamber indicator. 58 A magazine disconnect device stops a pistol from firing when the ammunition magazine is removed from the gun, even if there is one round left in the chamber; it is functionally similar to the device on automobiles that does not allow the car to be shifted out of park unless the foot brake is depressed. 59 A load indicator indicates whether the gun is loaded through a visible device such as a light or a pop-up button. Both of these devices are particularly effective in preventing incidents in which the magazine is removed from a gun, but the individual handling the gun unintentionally fires the gun, unaware that a bullet remains in the chamber. 60 It is a prevalent misconception among the general public, including gun owners, that a gun cannot be fired if the magazine is removed 61 and many accidental gun deaths involve uncertainty about whether the weapon is loaded. 62 The GAO has estimated that each year, 23 6 PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 7

7 The GAO has estimated that each year, 23 percent of the 1,400 to 1,500 unintentional shooting deaths occur because the user of the gun was not aware that a round of ammunition had been loaded into the gun s firing chamber. percent of the 1,400 to 1,500 unintentional shooting deaths occur because the user of the gun was not aware that a round of ammunition had been loaded into the gun s firing chamber. This causes as many as 320 to 345 deaths nationwide each year. 63 These safety devices will help reduce the number of deaths from this all-toocommon scenario; a load indicator will alert gun users to the presence of a bullet in the chamber and a magazine disconnect safety will disable the gun when a magazine is removed. 64 Installing these devices is not difficult. For example, magazine disconnect safeties have been around for nearly a century. In 1912 a patent application noted that a magazine disconnect safety was intended to prevent instances where a magazine is removed but persons... regard [the firearm] as unloaded while a cartridge remains in the barrel. 65 The patent noted that a great number of accidents arise from such a scenario. 66 Implementing these safety devices is also cost effective a magazine disconnect safety may cost less than 50 cents. 67 Recognizing the cost efficiency of such safety devices, some gun makers have already committed to these safety devices. As part of its settlement with municipalities across the country, Smith & Wesson agreed to install chamber loaded indicators on all pistols. 68 Even prior to the settlement, virtually all Smith & Wesson models were equipped with magazine disconnect safeties. States could also consider requiring integrated locks In addition to the Massachusetts safety standards, states could consider other measures that address firearm hazards. Attorneys general could consider requiring gun manufacturers to integrate locks into the design of guns to prevent their use by children, teenagers, and other unauthorized users. With guns equipped with integrated locks, only the authorized user or users can fire the weapon. An example of one simple integrated locking device is a push-button combination lock integrated into the grip of the handgun. This effectively prevents anyone who does not know the combination from firing the gun. 69 Gun manufacturer Taurus provides an integrated locking device on its handguns. There is a post behind the hammer of a Taurus gun that is controlled by a key. When the post is raised, the hammer cannot be cocked and the gun is inoperable. 70 Such a locking device is importantly distinct from the trigger lock, which suffices to meet the Massachusetts safety standards. Owners must attach trigger locks to a gun. Internal locking devices are integrated into the gun and are more difficult to disable than a trigger lock. Internal or integrated locking devices may provide a more secure safety measure as these locks are permanent, so the means of securing the gun travel with it from owner to owner. By contrast, a trigger lock can be removed at will. Smith & Wesson, in settling the lawsuits brought by some municipalities, agreed to provide integrated locking devices on all its guns within two years. 71 This will not require major gun redesign and should save lives. States should consider requiring personalized guns The integrated locks described above constitute a relatively simple way of personalizing guns to allow use only by the authorized users of the gun. Other more sophisticated personalization methods exist, however, in which the gun recognizes the authorized user. 72 A Sandia Laboratory study sponsored by the National Institute of Justice reports that affordable, sophisticated personalization technology exists. Sandia Lab found the most cost effective and reliable design uses radio frequency tags in the handgun and on the shooter, often worn in the form of a ring or a bracelet. In order for the gun to operate, the frequency of the tag in the gun and the tag on the shooter must match. 73 Only an individual wearing the required ring or bracelet can fire the gun. This is the same technology used to detect shoplifting in department stores. Despite arguments that true personalization technology is years away, many inventors have developed workable personalized gun prototypes. 74 Personalized guns provide significant benefits. First and foremost, personalized guns prevent the use of guns by any unauthorized users; only those whom the gun owner has entrusted with access can use a personalized gun. Personalized guns would reduce unnecessary deaths and injuries because young children cannot fire them. 75 In addition, they would prevent many handgun shootings by adolescents as teenagers are more likely to use a firearm in a homicide or suicide than their older counterparts and generally obtain their guns from family or friends. 76 A teenager could not use a friend s or family member s gun if it were personalized. Personalized guns also greatly reduce the use of stolen guns. Studies of adult and juvenile offenders indicate that most have stolen, possessed, sold or traded a stolen firearm. 77 Personalization devices would prevent the criminal use of these guns and drastically reduce the on-going criminal trade in stolen guns. 78 Indeed, at least one study has shown that almost 50 percent of all shootings studied, both unintentional and intentional, would have been prevented if a personalization device had been in place on the gun. 79 Given the current feasibility of personalization devices, any regulation mandating personalized guns could provide for a phase-in of the technology within a relatively brief time period. For example, under the recently signed settlement between Smith & Wesson and some municipalities across the country, Smith & Wesson agreed to use personalization technology in its new models within three years of the settlement, with curio and collectors models exempted from the requirement. Smith & Wesson also agreed to spend two percent of its revenues on developing personalization technology. 80 Gun safety standards could target deceptive advertising Any state regulations implemented pursuant to an attorney general s baby FTC powers could also forbid advertising that misleads or deceives the consumer. Gun manufacturers have a history of making deceptive marketing claims. The companies frequently rely on the misleading message that a handgun in the home will improve personal safety. 81 For example, in one ad for Colt handguns that ran in a 1992 southeast regional edition of Ladies Home Journal, a mother is featured tucking a child into bed with a dark window in the background. The headline reads Self-protection is more than your right... it s your responsibility. The text of the ad recommends purchasing a Colt semiautomatic pistol for protecting yourself and your loved ones, and compares a gun to a fire extinguisher, claiming it may be better to have it and not need it, than to need it and not have it. 82 Another gun manufacturer, Beretta, promoted its.380 automatic pistol in advertisements featuring a gun and a bullet sitting on what appears to be a nightstand table. Next to them is a photo of a woman with two young children and an alarm clock reading 11:26 PM. The text of the headline reads, Tip the Odds in Your Favor. These and other such ads clearly appeal to the consumer s desire to protect home and family and implicitly represent that owning a handgun enhances a person s security. On the contrary, studies show that firearms in the home, rather than increasing security, actually increase the risk of homicide or suicide. 83 Given the increased risks guns pose in the home, such deceptive advertising could be curbed by standards set by an attorney general acting pursuant to a baby FTC act. Any deceptive advertising restrictions should withstand constitutional challenges. For example, while commercial speech enjoys First Amendment protection, misleading or deceptive advertising receives no such protection. See Cen. Hudson Gas and Elec. Corp. v. Pub. Ser. Comm n, 447 U.S. 557, (1980) (employing a four-part test to determine validity of governmental restriction of commercial speech; First Amendment protection only granted to commercial speech that is not misleading, deceptive, or related to unlawful activity); Ibanez v. Florida Dep t of Bus. and Prof l Regulation, 512 U.S. 136, 142 (1994) (governmental entity bears burden of justifying restriction); 8 PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 9

8 see also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (finding state ban on liquor price advertisements failed to meet Hudson four part test). Accordingly, any prohibition of misleading or deceptive gun advertisements would not violate the First Amendment. Importantly, any attorney The Massachusetts Supreme Judicial Court held that the attorney general may regulate deceptive or unfair acts or practices in the sale of products which fail fundamental requirements of safety and performance. general can rely on studies indicating the risks of unsecured guns in the home to justify restrictions on deceptive gun advertising. Deceptive advertising restrictions, to the extent they address national publications, may also be subject to Commerce Clause challenges. See page 9, infra. Courts have found a state s interest in protecting its citizens from misleading information constitutes a significant state interest. See Florida Lime and Avocado Growers, Inc., et al. v. Paul, 373 U.S. 132, (1963); New York v. Trans World Airlines, Inc., 728 F. Supp. 162, 181 (S.D.N.Y. 1989) (finding factual inquiry warranted to determine whether state deceptive advertising restriction violated Commerce Clause). As a result, a state s interest in prohibiting deceptive gun advertisements in national publications may withstand Commerce Clause challenges, but will be subject to the balancing test developed by the United States Supreme Court in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). See Consol. Cigar Corp. v. Reilly, 218 F.3d 30, (1st Cir. 2000), cert. granted, 69 U.S.L.W (Jan. 8, 2001) (finding state law requiring warning on national cigar advertising in order to prevent youth smoking in violation of Commerce Clause). Under the Pike analysis, the state s interest in a regulation must outweigh the burden on interstate commerce. See Knoll Pharm. Co. v. Sherman, 57 F. Supp. 2d 615, (N.D. Ill. 1999) (finding state ban on the advertisement of drugs containing narcotics, intended to advance state s interest in preventing drug abuse, not narrowly tailored and in violation of Commerce Clause). As the advertising in question may be legal in most other states, the burden on interstate commerce will be the burden on gun manufacturers to adhere to the deceptive advertising ban in national publications. See id.; but see Head v. New Mexico Bd. of Exam rs in Optometry, 374 U.S. 424 (1963) (upholding state ban on certain eyeglasses advertisements even though state newspaper and radio station served both New Mexico and Texas residents and ad was on behalf of Texas optometrist). By contrast, any ban on deceptive advertising in intrastate publications will not be subject to any Commerce Clause challenge and could be easily administered. See Packer Corp. v. Utah, 285 U.S. 105 (1932) (upholding Utah law prohibiting cigarette advertisements on billboards or placards). What to Expect: The Gun Industry s Legal Challenges to the Massachusetts Regulations Arguing that the Massachusetts Attorney General exceeded his rulemaking authority, major gun industry trade groups, including the American Shooting Sports Council, major gun manufacturers, and two Massachusetts gun dealers sought a preliminary injunction in 1997 to prevent the Massachusetts gun safety regulations from taking effect. On July 1, 1998, the Suffolk County Superior Court agreed with the gun industry and found that while the harm which [Chapter] 93A seeks to prevent is primarily economic harm arising out of disparity in bargaining power between a merchant and a customer[,] the regulations... seek to address the threat to the public safety posed by defective and otherwise unsafe handguns.... Am. Shooting Sports Council v. Harshbarger, Mass. Super. Ct. CA No C, at 13. The judge also found that the power granted to the Attorney General by [Chapter 93A, Section] 2(c) does not encompass the power to establish design and performance standards for products sold in Massachusetts. Id. at 9. The gun industry s success in preventing the enactment of the safety regulations was short-lived. The Attorney General appealed the decision to grant a preliminary injunction and the Supreme Judicial Court granted an expedited appeal. The Attorney General argued that the baby FTC provision in Chapter 93A Section 2 authorized the Attorney General to identify specific unfair or deceptive practices and issue regulations barring such conduct, with unfair having a broad definition. 84 Pursuant to that power, the Attorney General rightly promulgated regulations attacking unfair and deceptive trade practices. Specifically, the Attorney General argued that manufacturers cannot sell products that do not work properly, exposing the public to severe harm is unfair, and selling products that pose undue risks of severe harm to children is unfair. Under the baby FTC provision, the Attorney General has the authority to promulgate any regulations to remedy such unfair business practices. The Massachusetts legislature had also passed a statute mandating several of the safety measures already included in the Attorney General s regulations (St. 1998, c. 180). The Attorney General argued that such laws provide substantive guideposts for minimal conduct and any violation of those state statutes further constituted an unfair and deceptive business practice that warranted the Attorney General s regulations. The Supreme Judicial Court reversed the trial court s ruling. See Am. Shooting Sports Council, Inc. v. Attorney Gen., 711 N.E.2d 899 (Mass. 1999). The court found that the Massachusetts Attorney General did have the power to promulgate firearm safety regulations pursuant to the state s baby FTC act. The court held that the attorney general may regulate in an area not otherwise withheld from his consideration, even if the regulation may affect the ability of the vendor to sell its product, if he can establish that the regulations define acts or practices which violate the law. Id. at 903. Accordingly, the attorney general may regulate deceptive or unfair acts or practices in the sale of products which fail fundamental requirements of safety and performance. Id. at 904. Specifically, the court characterized unfair and deceptive practices as follows: If, during ordinary use in keeping with directions, the product performs in a deviantly unsafe or unexpected way, the product s sale has occurred in circumstances which make the sale deceptive or unfair. This is especially so where harmful or unexpected risks or dangers inherent in the product, or latent performance inadequacies, cannot be detected by the average user or cannot be avoided by adequate disclosures or warnings. Id. The Supreme Judicial Court found that the Attorney General s authority... regarding defective products is not limited to marketing and disclosure issues, and instead, properly extends to regulating the sale of a product as unfair or deceptive when the product is defective in ways in which a purchaser would not anticipate.... Id. at 907. The court further held that the Attorney General s action is not inconsistent or incongruent with the rules, regulations, and decisions of the FTC or the Federal Courts interpretations of the FTC Act. Id. The Supreme Judicial Court then remanded the case to the Superior Court to determine the validity of the regulations under the Court s interpretation of the Attorney General s statutory authority. The Superior Court upheld the validity and enforceability of the regulations on their face and dismissed the plaintiffs constitutional due process and Commerce Clause claims with prejudice. 85 On March 20, 2000, the gun 10 PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 11

9 Certainly, a state s interest in saving the lives of children and reducing gun accidents industry missed the final deadline to appeal its losing battle. Finally, on April 3, 2000, the Attorney General implemented what are now the strongest gun safety provisions in the country. Constitutional Challenges: Why Gun Safety Standards Will Withstand Constitutional Scrutiny When the regulation of gun safety is at issue, opponents repeatedly argue that any regulation of firearms is a violation of the United States Constitution, specifically of the Second Amendment or the Commerce Clause. In truth, the regulations violate neither provision. The Second Amendment does not preempt gun safety regulations Gun safety regulations should withstand constitutional scrutiny as they are reasonable exercises of a state s police power and are not barred by the Second Amendment. Such regulations should not deny guns to any individual; rather, they protect the public and merely make guns safer for the consumer. As such, neither the federal nor state constitutions present any barrier to the implementation of gun safety standards. The Second Amendment reads, A well-regulated Militia being necessary for the security of a free state, the right of the people to keep and bear Arms, shall not be infringed. For over sixty years, it has been the unquestioned law of this country that the Second Amendment confers no individual right to gun possession. The decision of the United States Supreme Court in United States v. Miller, 307 U.S. 174 (1939), established that the right to keep and bear arms conferred by the Second Amendment does not confer an individual right to bear arms and instead is linked solely to the proper functioning of a well-regulated state militia. Almost every federal court has interpreted Miller in this way. 86 The defendant in Miller challenged his indictment under Section 11 of the National Firearms Act as a violation of the Second Amendment and was successful in the district court. The Supreme Court, however, unanimously rejected Miller s contention, holding that the obvious purpose of the Amendment was to assure the continuation and render possible the effectiveness of the state militia; thus, the Amendment must be interpreted and applied with that end in view. Id. at 178 (emphasis added). As Miller could not show that his possession of a prohibited short-barreled shotgun had some reasonable relation to the preservation or efficiency of a well[-]regulated militia, id., he could claim no protection from the Second Amendment. The Supreme Court reaffirmed Miller in Lewis v. United States, 445 U.S. 55 (1980), where the Court used rational-basis review, not strict scrutiny, to assess the validity of the federal statute barring possession of guns by convicted felons, 18 U.S.C. 1202(a)(1). Strict scrutiny is the highest level of judicial review and is applied to any law restricting the exercise of a fundamental right. Generally, strict scrutiny requires that any restriction of a fundamental right must be necessary to a compelling government interest. 87 By contrast, rational-basis review is applied to examine restrictions not affecting fundamental rights and requires only some rational basis to justify the governmental restriction. Id. The Court in Lewis held that rational-basis review was appropriate because the legislative restriction at issue did not trench upon any constitutionally protected liberties. Id. at 65 n.8 (citing Miller and three lower court cases rejecting Second Amendment challenges). 88 Given that the Supreme Court in Miller determined that the Second Amendment does not confer an individual right to possess firearms unless used in the furtherance of a well-regulated militia, any regulations regarding the safe design and distribution of guns for the civilian market pose no serious Second Amendment issue. Furthermore, gun safety regulations should not violate any state-granted right to keep arms. Although state constitutions, unlike the federal constitution, often grant individuals the right to keep arms for self-defense, state courts have recognized generally a state s power to exercise reasonably its police power over the possession or sale of firearms. See, e.g., Robertson v. City and County of Denver, 874 P.2d 325, 333 (Colo. 1994) (en banc) (ordinance banning assault weapons did not violate state constitutional right to bear arms); Arnold v. City of Cleveland, 616 N.E.2d. 163, 171, 173 (Ohio 1993) (state right to bear arms not absolute; ordinance banning assault weapons was valid exercise of police power); Nebraska v. LaChapelle, 451 N.W.2d 689, (Neb. 1990) (statute prohibiting machine guns and short shotguns not vitiated by Right to Bear Arms provision in Nebraska constitution). The dormant Commerce Clause does not preempt state gun safety regulations Courts are likely to uphold state gun safety regulations against Commerce Clause challenges. Article I, Section 8 of the Constitution provides Congress with the power to regulate interstate commerce: Congress shall have the power to regulate commerce among the several states. Even though this power has been reserved to Congress, states generally have the power to enact legislation protecting the safety interests of their citizens, so long as such legislation does not unduly interfere with interstate commerce. This limitation on a state s power to regulate commerce is called the dormant Commerce Clause. In evaluating a dormant Commerce Clause challenge, courts must determine whether a state has a legitimate police power interest in the state regulation. Specifically, the Supreme Court has determined that [w]here the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). The Pike balancing approach requires courts to determine whether the state law is an even-handed regulation pursuant to a legitimate state objective or is discriminatory against interstate commerce interests and, if the law is non-discriminatory, whether the state interest in the regulation overrides the adverse effect on interstate commerce. 89 Any state regulations pursuant to a baby FTC act should withstand the first element of the Pike balancing test as they would be non-discriminatory and apply to guns manufactured both inand out-of-state. Supreme Court cases indicate that the state gun safety regulations should also pass the second prong of the analysis the costs of implementing the standards should be outweighed by the tremendous safety benefits. In Minnesota v. Clover Leaf Creamery Co., the Court upheld a Minnesota law prohibiting the use of plastic milk containers, finding the law neither discriminatory nor overly burdensome. 449 U.S. 456 (1981). The Court found that the costs of using nonplastic milk containers were justified by the state s interest in conserving natural resources and reducing solid waste. 90 Certainly, a state s interest in saving the outweighs the minor costs some gun manufacturers would incur in order to meet any new gun safety standards. lives of children and reducing gun accidents outweighs the minor costs some gun manufacturers would incur in order to meet any new gun safety standards. As safety devices are already featured on some guns, 91 and the costs of many safety measures such as magazine disconnects and safety locks are minimal, the Commerce Clause should not preclude the application of any state gun safety standards. Conclusion The Massachusetts regulations set a strong precedent for action by state officials across the country. The state attorneys general with powers similar to those of the Massachusetts Attorney General also have the authority to implement state regulations that apply basic consumer product safety principles to handguns. Given that handguns have been specifically exempted from any federal consumer product safety standards and exact a tremendous toll on this country with significant losses in both lives and dollars such state regulations can be an important step toward the reduction of gun violence and gun injuries. 12 PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 13

10 Endnotes 1 August Gribbin, Polls Show People Want Rules on Guns But Don t Expect Them, Washington Times, Aug. 22, 1999 at C-4 (indicating that 81 percent of Americans support laws requiring trigger locks on guns). 2 Id. 3 Commonwealth of Massachusetts, Attorney General Press Release, April 3, The use of attorneys general hereinafter refers to both attorneys general and other state officials or commissions empowered by baby FTC acts. See, e.g., Mont. Code Ann (West 1999). 5 Centers for Disease Control and Prevention, National Center for Health Statistics, Unpublished Data from the National Vital Statistics System, See, e.g., FBI Uniform Crime Report, 1996, calculated from table 2.13, at 20; see also ATF Gun Trace Analysis Reports: The Illegal Youth Firearms Markets in 27 Communities (1998) (reporting that approximately 80 percent of the guns traced to crime are handguns). 7 Joseph L. Annest et al., National estimates of nonfatal firearm-related injuries: beyond the tip of the iceberg, 273 JAMA (1995). 8 Arthur L. Kellerman et al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 New Eng. J. Med (1993). 9 Arthur L. Kellerman et al., Suicide in the Home in Relation to Gun Ownership, 327 New Eng. J. Med (1992). 10 Arthur L. Kellerman et al., Injuries and Deaths Due to Firearms in the Home, 45 J. Trauma (1998). 11 Centers for Disease Control and Prevention, National Center for Health Statistics, National Vital Statistics Reports, Vol. 47, No. 19, June 30, Id. 13 Ted R. Miller and Mark A. Cohen, Costs of Penetrating Injury, Textbook of Penetrating Trauma, 1995; American Academy of Pediatrics, Firearm Related Injuries Affecting the Pediatric Population, 105 Pediatrics (2000); Kenneth W. Kizer et al., Hospitalization Charges, Costs, and Income for Firearm- Related Injuries at a University Trauma Center, 273 JAMA (1995); J.A. Ginsburg et al., American College of Physicians, Firearm Injury Prevention, 128 Annals of Internal Medicine 237 (1998). 14 Id.; see generally Philip J. Cook and Jens Ludwig, Gun Violence The Real Costs (2000) at 10 (estimating total costs of gun crimes, including costs of prevention, to total $80 billion). 15 Centers for Disease Control and Prevention, 46 Morbidity Mortality Weekly Report (Feb. 1997). 16 Id. 17 General Accounting Office Report, Accidental Shootings: Many Deaths and Injuries Caused By Firearms Could Be Prevented, GAO/PEMD-91-9, at 2-3 (1991) [hereinafter GAO Report ]. 18 Matthew Miller and David Hemenway, The Relationship Between Firearms & Suicide: A Review of the Literature, 4 Aggression and Violent Behavior (1999). 19 Arthur L. Kellerman and Donald Reay, Protection or Peril? An Analysis of Firearm-Related Deaths in the Home, 314 New Eng. J. Med (1986). 20 U.S. Department of Justice, 1999 National Report Series, Juvenile Justice Bulletin, Kids and Guns, at 10 (Mar. 2000). 21 Susan B. Sorenson and Richard A. Berk, Young guns: an empirical study of persons who use a firearm in a suicide or a homicide, 5 Injury Prevention (1999). 22 See The Enforcement Fable: How the NRA Prevented Enforcement of the Nation s Gun Laws, Center to Prevent Handgun Violence (Mar. 2000) at (last visited Dec. 2000) (examining the National Rifle Association s long history of impeding the enforcement of the nation s gun laws). 23 See U.S. Department of Treasury Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles, at 16 (Apr. 1998). 24 Jon Vernick and Stephen Teret, A Public Health Approach to Regulating Firearms as Consumer Products, 148 U. Pa. L. Rev. 1193, 1197 (2000) (discussing current gun safety standards). 25 See generally Dep t of Treasury Study on the Sporting Suitability, supra note (last visited Sept. 2000). 27 Josh Sugarman and Kristen Rand, Cease Fire: A Comprehensive Strategy to Reduce Firearms Violence, Violence Policy Center, at Robert Spitzer, The Politics of Gun Control, at 81 (1998). 29 Id. 30 See, e.g., CPSC, Kinderkids Announce Recall of Inflatable Playrings for Babies, CPSC Release, Aug. 29, 2000 (children s toy recalled when one baby was found gasping for air after falling asleep on inflatable playring); CPSC, Rubbermaid, Inc. Announce Recall of Icy Rider Toboggan, CPSC Release, Dec. 1, 1998 (toboggan recalled after one child and one adult were injured); Over the Counter Antihistamine Recalled For Lack of Child-Resistant Closure, CPSC Release, Aug. 13, 1992 (over-the-counter medicine recalled for lack of child proof cap). 31 See National Safety Council, Accident Facts (1995) at 42-43; Centers for Disease Control, National Center for Injury Prevention and Control at (last visited Jan. 9, 2001). 32 See, e.g., Child s play with pistol ends in tragedy, Houston Chronicle, July 13, 2000 at metropolitan/ (last visited July 2000) (3 year old boy shoots and kills himself with found 9 mm pistol); Toddler s death ruled an accident, San Antonio Express News, June 22, 2000 at 06.shtml (last visited June 26, 2000) (5 year old shoots and kills 2 year old brother with.22-caliber revolver). 33 Stephen Teret et al., Support for New Policies to Regulate Firearms, 339 New Eng. J. Med (1998). 34 Most baby FTC acts contain similar provisions. See, e.g., Idaho Code (2) ( such rules and regulations (promulgated by the attorney general) shall not be inconsistent with the rules... of the [F]ederal [T]rade [C]ommission.... ). 35 See Unfairness Policy Statement, Letter from the Federal Trade Commission to Hon. Wendell Ford and Hon. John Danforth, Committee on Commerce, Science and Transportation (Dec. 17, 1980), reprinted in In the Matter of Internat l Harvester Co., 104 F.T.C. 949, 1070 (1984). 36 Internat l Harvester, 104 F.T.C. at 1073, n.55 (a harm is substantial if it does a small harm to a large number of people or if it raises a significant risk of concrete harm ). 37 Id. at In the Matter of Cliffdale Associates, Inc., 103 F.T.C. 110, 175 (1984) (citation omitted). 39 See Glenn Kaplan and Chris Barry Smith, Patching the Holes in the Consumer Product Safety Net: Using State Unfair Practices Law to Make Handguns and Other Consumer Goods Safer, 17 Yale J. on Reg. 253, (2000). 40 See Benjamin Bejar, Wielding the Consumer Protection Shield: Sensible Handgun Regulation in Massachusetts a Paradigm for a National Model?, 7 B.U. Pub. Int. L.J. 59 (1998). 41 See Mass. Regs. Code tit (2). 42 See id. 43 Garen J. Wintemute et al., Weapons of Choice: Previous Criminal History, Later Criminal Activity, and Firearm Preference among Legally Authorized Young Adult Purchasers of Handguns, 44 J. Trauma (1998) (showing that criminal activity both before and after handgun purchase was associated with a preference for small, inexpensive handguns). 44 See ATF, The Youth Crime Gun Interdiction Initiative, Crime Gun Trace Analysis Reports: The Illegal Youth Firearms Markets in 27 Communities (1999); Department of Treasury and Department of Justice, Gun Crime in the Age Group 18-20, June 1999 at (Saturday Night Specials regularly listed among the top ten crime guns for youth aged 18-20). 45 See Garen J. Wintemute, The Relationship Between Firearm Design and Firearm Violence, 275 JAMA 1749 (1996). 46 See Garen J. Wintemute, Ring of Fire: The Handgun Makers of Southern California, Violence Prevention Research Program (1994) (discussing a group of Southern California Saturday Night Special makers called The Ring of Fire ). 47 See David Kreighbaum, Obliterated Serial Numbers, 2 CGAB SHOTS Vol. 3, 1 (Mar. 1998). 48 See Martha Brognard, Obliterated Serial Number Restoration, 2 CGAB SHOTS Vol. 6, 1 (Aug. 1998). 49 See id. 50 ATF Crime Gun Trace Reports (1999) National Report (2000) at See generally James T. Dixon, Note: On Lemon Squeezers and Locking Devices: Consumer Product Safety and Firearms, A Modest Proposal, 47 Case W. Res. 979 (1997). 52 See GAO Report, supra note 17 at Manufacturers Agree to Handgun Trigger Locks, Clinton Hails Child-Safety Measure, The Boston Globe, Oct. 10, 1997 at A Louise D. Palmer, D.C. Center Reports Gun Makers Not Installing Child-Safety Devices, The Boston Globe, Oct. 15, 1998 at A-3 (indicating that not all of the signatories to the October 1997 trigger lock agreement had provided child-safety locks as promised). 55 See Roberta K. Lee and Mary J. Harris, Unintentional Firearm Injuries: The Price of Protection, 9 Am. J. Prev. Med. 16 (1993). 56 P.J. Reilly, Most Makers Are Already Selling Guns With Locking Mechanisms, Intelligencer Journal, Apr. 21, 2000 at A See id. 58 Unlike a revolver, in which the ammunition is held in a revolving cylinder and is readily visible to the user, a semi-automatic handgun is a pistol in which the ammunition is concealed in a box called a magazine that fits into the gun s handle or grip. See generally Windle Turley and James E. Rooks, Firearms Litigation Law, Science, and Practice at 26 (1988). 59 See Jon S. Vernick et al., I Didn t Know The Gun Was Loaded : An examination of two safety devices that can reduce the risk of unintentional firearm injuries, 20 J. Pub. Health Pol y 427, 428 (1999). 60 See A School Year in the USA, Center to Prevent Handgun Violence (1998) at See Vernick, supra note 59, at 430. A recent poll found that 34.8 percent of those polled either thought that a gun could not be shot if the magazine was removed or did not know if it could. Of those respondents, 28 percent lived in a gun-owning household. See Johns Hopkins Center for Gun Policy and Research, and National Opinion Research Center, 1997 National Gun Policy Survey: Questionnaire with Weighted Frequencies (1998). 62 See GAO Report, supra note 17, at Id. 64 See id. at 17. See also David Hemenway and Douglas Weil, Phasers On Stun: The Case for Less Lethal Weapons, 9 J. Pol y Analysis and Mgmt. 94, 95 (1990). 65 United States Patent Office, Patent No. 1,024,933 (Apr. 30, 1912). 66 Id. 67 See Brian J. Siebel, City Lawsuits Against the Gun Industry: A Roadmap for Reforming Gun Industry Misconduct, 18 St. Louis U. P. L. Rev. 1247, 1259 (1999) (discussing costs of magazine disconnect safeties). 68 See (last visited Jan. 2001) (discussing Smith & Wesson settlement provisions). 69 See Paul M. Barrett, There s a Catch: A Simple Invention Points Up Complexity of Gun Suits, Wall St. J., Apr. 23, 1999 at A1. 70 See Reilly, supra note See Smith & Wesson settlement, supra note PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 15

11 72 See Center for Gun Policy and Research, Johns Hopkins University, Personalized Guns: Reducing Gun Deaths Through Design Changes (1996)(discussing devices including magnetic resonance devices that require the user to wear a special bracelet or ring, radio frequency identification, and touch memory devices, among others); National Institute of Justice, Smart Gun Technology Project Final Report (1996). 73 See Smart Gun Technology Project, supra note See Smart Guns Don t Kill Kids, Discover, Sept at 90 (discussing personalization devices such as the fingerprint lock, the magnetic lock, and the electromagnetic lock); Paul M. Barrett and Vanessa O Connell, Personal Weapon, How a Gun Company Tried to Propel Itself Into the Computer Age, Wall St. J., May 12, 1999 at A1 (discussing Colt s Manufacturing Co. s development of personalized gun technology). 75 See Mark Polston and Doug Weil, Unsafe by Design: Using Tort Actions to Reduce Firearm-Related Injuries, 8 Stan. L. & Pol y Rev. 13, 15 (1997). 76 Susan B. Sorenson, Regulating Firearms as a Consumer Product, 286 Science Magazine 1481 (Nov. 19, 1999). 77 Marianne Zawitz, Department of Justice, Firearms, Crime, and Criminal Justice: Guns Used in Crime, July 1995 at See Personalized Guns Reducing Gun Deaths Through Design Changes, supra note See A School Year in the USA, supra note See Smith & Wesson settlement, supra note See Petition to the Federal Trade Commission, filed by Center to Prevent Handgun Violence (Feb. 14, 1999) at (last visited Jan. 2001)(asking the Federal Trade Commission to use its regulatory authority to prohibit misleading gun advertisements); see also Jon Vernick, Stephen Teret and Daniel Webster, Regulating Firearm Advertisements that Promise Home Protection, 277 JAMA (1997). 82 Id. 83 See supra notes 8 and See Attorney General Brief at 4, (citing Purity Supreme, Inc. v. Attorney Gen., 407 N.E.2d 297, 304 (Mass. 1980)). 85 ASSC v. Attorney Gen., Mass. Super. Ct., CA No C, Final Judgment (Jan. 20, 2000)(upholding gun safety regulations with the exception of their applicability to grandfathered handguns protected by an existing statutory safe harbor). 86 See, e.g., Thomas v. City Council of Portland, 730 F.2d 41, 42 (1st Cir. 1984) ( Established case law makes clear that the federal Constitution grants appellant no right to carry a concealed handgun. ); United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (gun possession not a fundamental right); United States v. Graves, 554 F.2d 65, 66 n.2 (3d Cir. 1977) (dicta) (Miller controlling on individual rights question); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) ( Second Amendment does not confer an absolute individual right to bear any type of firearm. ); Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971) (because Second Amendment right applies only to state militias, there can be no serious claim to any express constitutional right of an individual to possess a firearm); Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999) (Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia ) (upholding 18 U.S.C. 922(g)(9)); United States v. Nelson, 859 F.2d 1318, 1320 (8th Cir. 1988) (no plausible claim that challenged statute would impair any state militia ); Hickman v. Block, 81 F.3d 98, 101 (9th Cir. 1996) (Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen ); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977) (individual right to gun possession has long been rejected ); see also United States v. Wright, 117 F.3d 1265, 1273 (11th Cir. 1997) (Second Amendment limited to the possession or use of weapons that is reasonably related to a militia actively maintained and trained by the states ); Fraternal Order of Police v. United States, 173 F.3d 898, 906 (D.C. Cir.) cert. denied, 528 U.S. 928 (1999) (no evidence presented on statute s material impact on the militia); but see U.S. v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999) appeal filed Fifth Circuit (finding an individual has a right to keep and bear arms pursuant to the Second Amendment and therefore law prohibiting those under a domestic violence restraining order from keeping firearms would have to require a finding of particularized danger). 87 See, e.g., Clark v. Jeter, 486 U.S. 456, 461, (1988) (strict scrutiny is reserved for state classifications based on race or national origin... and classifications affecting fundamental rights ) (citations omitted). 88 The Supreme Court also dismissed the appeal in Burton v. Sills, 248 A.2d 521 (N.J. 1968) (Second Amendment does not confer individual right to bear arms) for want of a substantial federal question. 394 U.S. 812 (1969). 89 But see ASSC v. Attorney Gen., supra note 85. (dismissing plaintiffs Commerce Clause claims against the Massachusetts Attorney General as without merit, but without application of the Pike analysis). 90 See also Grocery Mfrs. of Am., Inc. v. Gerace, 755 F.2d 993, 1003 (2d Cir. 1985) (applying Pike balancing test in upholding food labeling scheme); Consigned Sales Co., Inc. v. Sanders, 543 F. Supp. 230, (W.D. Okla. 1982) (applying Pike balancing test and upholding state ban on mail-order fireworks). 91 See Vernick and Teret, supra note 24, at 1199 (magazine disconnect safeties available on 10 percent of new pistols). PART TWO Zeroing In On State Laws The Center to Prevent Handgun Violence developed the following summaries based upon publicly available documents. Each section provides a brief overview of state law empowering attorneys general or, in some cases, other state commissions with powers similar to those used by the Massachusetts Attorney General. These legal summaries provide good starting points for any office considering the implementation of gun safety regulations, but do not constitute legal advice. 16 PART ONE TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 17

12 Alaska Florida SECTION of the Alaska Unfair Trade Practices and Consumer Protection Act states, [t]he attorney general... may adopt regulations interpreting and forms necessary for administering the provisions of [the Unfair Trade Practices and Consumer Protection Act]. Thus, the attorney general is authorized to regulate all [u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce. Alaska Stat (a) (Michie 1999). The enumeration of specifically prohibited conduct is not intended to limit the types of unlawful practices within the scope of the Act. Id (b). In interpreting the Alaska Act, due consideration and great weight should be given the interpretations... of the Federal Trade Commission Act. Id No cases specifically address the attorney general s power to adopt regulations. The leading case interpreting the Act more generally is State v. O Neill Investigations, Inc., 609 P.2d 520 (Alaska 1980). There, the Alaska Supreme Court noted that it would be the better practice for the Attorney General to exercise his discretionary rule-making power to fill in the interstices of the Alaska Act rather than relying exclusively on adjudication. Id. at 534 n.49 (citing S.E.C. v. Chenery Corp., 332 U.S. 194, 202 (1946) and Nat l Petroleum Refiners Ass n v. FTC, 482 F.2d 672, 673 (D.C. Cir. 1973), cert. denied, 415 U.S. 951 (1974), for the importance of agency rulemaking). The court also emphasized the remedial nature of the Act and declared that it should be accorded a liberal construction. Id. at 528. See also State v. First Nat l Bank of Anchorage, 660 P.2d 406, 412 (Alaska 1982). In determining unfairness, the court looked to the factors set forth in federal case law. O Neill, 609 P.2d at See also Barber v. Nat l Bank of Alaska, 815 P.2d 857, 861 (Alaska 1991) (Alaska Act is the state counterpart to the Federal Act ); State v. Grogan, 628 P.2d 570, (Alaska 1981); Matanuska Maid, Inc. v. State, 620 P.2d 182, 185 (Alaska 1980). As the Massachusetts court found the gun safety regulations were not inconsistent with FTC or federal court decisions, and the Alaska statute provides broad authority to the attorney general to address unfair trade practices, the Alaska attorney general should be able to promulgate gun safety standards that will SECTION of Florida s Deceptive and Unfair Trade Practices Act (DTPA) states, The [D]epartment [of Legal Affairs] may adopt rules which set forth with specificity acts or practices that violate this part.... The only limitation is that such rules must not be inconsistent with the rules, regulations, and decisions of the Federal Trade Commission and the federal courts in interpreting the... Federal Trade Commission Act. Fla. Stat. Ann (2) (West 1997). The Department, which is headed by the state attorney general, thus has the authority to declare unlawful [u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.... Id (1). The Florida legislature intended that the statute be construed liberally, id , and that due consideration and great weight... be given to the interpretations of the Federal Trade Commission and the federal courts relating to... the Federal Trade Commission Act. Id (2). In Department of Legal Affairs v. Rogers, 329 So. 2d 257, 265 (Fla. 1976), the Florida Supreme Court held that the attorney general s power to promulgate substantive rules under the DTPA d[id] not constitute an unlawful delegation of legislative authority... See also State v. Atlantic Coast Line R.R. Co., 47 So. 969, 977 (Fla. 1908) ( Every doubt as to constitutionality should be resolved in favor of a legislative act... ). As the statute is to be construed liberally, the list of possible violations set forth in the DTPA is not exhaustive. See Mack v. Bristol-Myers Squibb Co., 673 So. 2d 100, 104 (Fla. Dist. Ct. App. 1996). Furthermore, the DTPA covers a broad swath of activities and is intended not only to provide a remedy for an individual, but also to protect consumers at large from unfair trade practices. See, e.g., Nat l Alcoholism Programs v. Palm Springs Hosp. Employee Benefits Plan, 825 F. Supp. 299, 302 (S.D. Fla. 1993); Sarkis v. Pafford Oil Co., Inc., 697 So. 2d 524, 528 (Fla. Dist. Ct. App. 1997); Suris v. Gilmore Liquidating, Inc., 651 So. 2d 1282, 1283 (Fla. Dist. Ct. App. 1995). Due to the broad authority given to the attorney general in his capacity as head of the Department of Legal Affairs, Florida law should allow the attorney general to promulgate gun safety standards similar to those in Massachusetts. withstand attack. 18 PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 19

13 Idaho Illinois SECTION (2) of Idaho s Consumer Protection Act asserts, The attorney general may make rules and regulations interpreting the provisions of this act. The attorney general can thus declare unlawful any act or practice done in the conduct of trade or commerce that is otherwise misleading, false, or deceptive to the consumer. Idaho Code (17) (Michie 1998). The only restriction on the attorney general s power is that the rules and regulations... not be inconsistent with the rules, regulations and decisions of the [F]ederal [T]rade [C]ommission and the federal courts in interpreting the provisions... of the [F]ederal [T]rade [C]ommission [A]ct. Id (2). No cases specifically address the scope of the attorney general s power to promulgate rules. However, the legislature intended that the Act be liberally construed and that federal case law be given great weight. See In re W. Acceptance Corp., 788 P.2d 214, 216 (Idaho 1990); State ex rel. Kidwell v. Master Distribs. Inc., 615 P.2d 116, 122 (Idaho 1980). Given that the Massachusetts Supreme Judicial Court upheld the Attorney General s authority to promulgate regulations finding that the Attorney General s authority properly extends to regulating the sale of a product as unfair or deceptive when the product is defective in ways which a purchaser would not anticipate, ASSC v. Attorney Gen., 711 N.E.2d 899, 907 (Mass. 1999), the Idaho Attorney General could similarly argue that the sale of an unsafe gun qualifies as misleading or deceptive as required by the statute. Thus, there are no apparent statutory obstacles prohibiting the Idaho attorney general from issuing gun safety regulations. SECTION 4 of the Illinois Consumer Fraud and Deceptive Business Practices Act declares that in order to accomplish the objectives and to carry out the duties prescribed by this Act, the Attorney General... may... prescribe such forms and promulgate such rules and regulations as may be necessary, which rules and regulations shall have the force of law. 815 Ill. Comp. Stat. Ann. 505/4 (West 1999). The attorney general can thus declare unlawful [u]nfair or deceptive acts or practices... [carried out] in the conduct of any trade or commerce. Id. 505/2 The Appellate Court of Illinois has unequivocally held that section 4 of the Illinois Consumer Fraud and Deceptive Business Practices Act confers upon the Attorney General authority to promulgate binding substantive rules and regulations. United Consumers Club, Inc. v. Attorney Gen., 456 N.E.2d 856, 862 (Ill. App. Ct. 1983). The broad purpose of the Act is to give consumers greater protection than that afforded by the common law. See, e.g., Lyne v. Arthur Andersen & Co., 772 F. Supp. 1064, (N.D. Ill 1991); Peter J. Hartmann Co. v. Capital Bank & Trust, 694 N.E.2d 1108, 1117 (Ill. App. Ct. 1998); Perona v. Volkswagen of Am., Inc., 684 N.E.2d 859, 865 (Ill. App. Ct. 1997). Furthermore, the Act should be liberally construed to effect its remedial purposes. See, e.g., Connick v. Suzuki Motor Co., 675 N.E.2d 584, 594 (Ill. 1996); Law Offices of William J. Stogsdill v. Cragin Fed. Bank for Sav., 645 N.E.2d 564, 565 (Ill. App. Ct. 1995); Malooley v. Alice, 621 N.E.2d 265, 268 (Ill. App. Ct. 1993). Given the broad construction of the Act, and the explicit authority for the Attorney General to promulgate rules or regulations, the Illinois attorney general should have the authority to promulgate gun safety standards. 20 PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 21

14 Iowa Louisiana IN ORDER [t]o accomplish the objectives and to carry out the duties prescribed by [the Consumer frauds section], Iowa Code section (4)(a) grants the attorney general the power to prescribe such forms and promulgate such rules as may be necessary, which rules shall have the force of law. The Code thus enables the attorney general to declare unlawful any act, use or employment by a person of an unfair practice, deception, fraud, false pretense, false promise, or misrepresentation... in connection with the lease, sale, or advertisement of any merchandise.... Iowa Code (2)(a) (1993). No cases address the attorney general s ability to enact substantive regulations. The Iowa Supreme Court has held that, in construing the Code, courts must look to the object to be accomplished, evils sought to be remedied, or purpose to be subserved in the interpretation... according to it that reasonable and liberal construction which will best serve to attain such object rather than one which will defeat it. State ex rel. Turner v. Koscot Interplanetary, Inc., 191 N.W.2d 624, 629 (Iowa 1971) (citing Farrell v. State Bd. of Regents, 179 N.W.2d 533, (Iowa 1970)). See also First Iowa State Bank v. Iowa Dep t of Natural Res., 502 N.W.2d 164, 166 (Iowa 1993). Given the statutory grant of broad authority, it appears that the Iowa attorney general should have the power to promulgate gun safety regulations similar to those in Massachusetts. SECTION 1405B of the Louisiana Unfair Trade Practices and Consumer Protection Law (LUTPL) provides that the attorney general can approve rules declaring unlawful specific unfair or deceptive acts or practices in the conduct of any trade or commerce.... La. Rev. Stat. Ann. 51:1405 (West 1987). Such rules, however, will initially be developed by a board over which the attorney general has oversight powers. The Louisiana Court of Appeals upheld the attorney general s power to create substantive rules under the LUTPL in the only case addressing the subject. See State ex rel. Guste v. Crossroads Gallery, Inc., 357 So. 2d 1381, 1382 (1978) (enforcing deceptive pricing regulation). In general, the LUTPL is interpreted broadly to encompass conduct that offends established public policy; unfair acts need not be specifically defined in the statute. See, e.g., Inka s S Coolwear, Inc. v. School Time, L.L.C., 725 So. 2d 496, 501 (La. Ct. App. 1998); Ferrara v. Shreveport, 702 So. 2d 723, 726 (La. Ct. App. 1997); Lilawanti Enters. v. Walden Book Co., 670 So. 2d 558, 561 (La. Ct. App. 1996); United Group of Nat l Paper Distribs., Inc. v. Vinson, 666 So. 2d 1338, (La. Ct. App. 1996). As the LUTPL was intended to closely track the federal statute, Louisiana courts may and should consider interpretations of the Federal courts and of the Commission relative to such similar statutes to adjudge the scope and application of our own statute. Guste v. Demars, 330 So. 2d 123, 125 (La. Ct. App. 1976). See also Gour v. Daray Motor Co., Inc., 373 So. 2d 571, (La. Ct. App. 1979). The Massachusetts Supreme Judicial Court found that the Massachusetts gun safety regulations were not inconsistent or incongruent with the rules, regulations, and decisions of the FTC or the Federal Courts interpretations of the FTC Act, and further found the Attorney General s authority properly extend[ed] to regulating the sale of a product as unfair or deceptive when the product is defective in ways which a purchaser would not anticipate. ASSC v. Attorney Gen., 711 N.E.2d 899, 907 (Mass. 1999). Similarly, the Louisiana attorney general has a strong argument to support his authority to promulgate gun safety regulations under the LUTPL. 22 PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 23

15 Maine Maryland SECTION 207(2) of the Maine Unfair Trade Practices Act (UTPA) declares that [t]he Attorney General may make rules and regulations interpreting this section. The only restriction is that such rules and regulations shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission and the Federal Courts in interpreting the provisions of... the Federal Trade Commission Act.... Me. Rev. Stat. Ann. tit. 5, 207(2) (West 1989). The attorney general can therefore declare unlawful unfair or deceptive acts or practices in the conduct of any trade or commerce.... Id The legislature intended that in construing this section the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to... the Federal Trade Commission Act.... Id. 207(1). The Maine Supreme Judicial Court has determined that the legislature envisioned the Maine Attorney General as being in a position comparable to that of the Federal Trade Commission with respect to implementing the act by regulation.... Bartner v. Carter, 405 A.2d 194, 200 (Me. 1979). The statute states that [e]vidence of a violation of a rule or regulation made by the Attorney General shall constitute prima facie evidence of an act or practice declared to be unlawful by this chapter in any action brought under the UTPA. Me. Rev. Stat. Ann. tit. 5, 207(2). The Maine Supreme Judicial Court has held that further judicial determination as to whether an act or practice is unfair is to be made on a case-by-case basis, guided by the decisions of the federal courts. See Binette v. Dyer Library Ass n, 688 A.2d 898, 906 (Me. 1996); Guiggey v. Bombardier, 615 A.2d 1169, 1172 (Me. 1992); Bartner, 405 A.2d at The Massachusetts Supreme Judicial Court found that the Massachusetts gun safety regulations were not inconsistent or incongruent with the rules, regulations, and decisions of the FTC or the Federal Courts interpretations of the FTC Act, and further found the Attorney General s authority properly extended to regulating the sale of a product as unfair or deceptive when the product is defective in ways which a purchaser would not anticipate. ASSC v. Attorney Gen., 711 N.E.2d 899, 907 (Mass. 1999). By analogy, the Maine attorney general has a strong argument in support of his authority to implement gun safety regulations under the SECTION of Maryland s Consumer Protection Act ( CPA ) establishes a Division of Consumer Protection within the Office of the Attorney General. The Division s purpose is to administer the provisions of the CPA. Powers of the attorney general under the act include the appointment of an assistant attorney general whose duties include matters of consumer protection and the recommendation of legislation to protect the public from fraudulent promoters and the schemes they propose. See Md. Code Ann., Com. Law (1)-(2) (1999). Section (a)(1) of the CPA grants the Division of Consumer Protection the power to adopt reasonable rules, regulations, and standards appropriate to effectuate the purposes of [the CPA], including rules, regulations, or standards which further define specific unfair or deceptive trade practices. See also id (12) (other powers and duties of the Division). In enacting the CPA, the General Assembly intended to take strong protective and preventive steps to investigate consumer practices, to assist the public in obtaining relief from these practices, and to prevent these practices from occurring in Maryland. Id (b)(3). Accordingly, the CPA is to be construed and applied liberally to promote its purpose. Id No cases specifically address substantive rulemaking authority. The Maryland Court of Appeals has upheld the Consumer Protection Division s right to set forth the rules governing cease and desist order hearings, see Consumer Prot. Div. Office of Attorney Gen. v. Consumer Publ g Co., Inc., 501 A.2d 48, (Md. 1985), and lower courts have recognized the CPA s strong mandate for reform. See, e.g., McGraw v. Loyola Ford, Inc., 723 A.2d 502, 509 (Md. Ct. Spec. App.), cert. denied, 727 A.2d 382 (Md. 1999); State v. Cottman Transmissions Sys., Inc., 587 A.2d 1190, 1204 (Md. Ct. Spec. App. 1991). The clear language in the CPA granting the attorney general and the Division of Consumer Protection the power to define specific unfair practices and the broad remedial purpose of the Act should provide the attorney general power to promulgate gun safety regulations. Maryland is unique, however, in having a Handgun Roster Board a division of the UTPA. 24 PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 25

16 Department of State Police that determines which handguns are useful for legitimate sporting, self-protection, or law enforcement purposes through the evaluation of several legislatively determined standards. Md. Ann. Code art. 27, 36J (2000). The handguns withstanding the Board s scrutiny are then placed on a Roster indicating which guns can be sold in Maryland. Id. The Roster is then given to Maryland gun dealers. While the Board is required to consider reliability as to safety, the Board was created primarily to prohibit Saturday Night Specials. As a result, the Board evaluates Saturday Night Special indicators, such as concealability and reliability, but does not consider other safety features such as magazine disconnect safeties or chamber loaded indicators when placing guns on the Roster. While the Board should be encouraged to consider a broader array of available safety devices when evaluating handguns, the Maryland Attorney General should also consider using his powers pursuant to the CPA to develop additional gun safety standards. See A Farewell to Arms: The Solution to Gun Violence in America, Maryland Attorney General Curran s Special Report (Oct. 20, 1999). The clear language in the CPA granting the Division of Consumer Protection the power to define specific unfair practices and the broad remedial purpose of the Act should provide the attorney general authority to promulgate gun safety regulations. Missouri THE MISSOURI MERCHANDISING PRACTICES ACT declares unlawful [t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce.... Mo. Rev. Stat (1) (1999). Pursuant to section , the attorney general has the power to promulgate...all rules necessary to the administration and enforcement of the provisions of [the Act]. The attorney general s rulemaking authority extends to creating regulations that set... out the exact scope of Missouri s law and the meaning of the words employed in the Merchandising Practices Act. State ex rel. Nixon v. Telco Directory Publ g, 863 S.W.2d 596, 601 (Mo. 1993) (en banc). See also State v. Polley, 2 S.W.3d 887, 891 (Mo. Ct. App. 1999). The Legislature intentionally left the definition of unfair practices open in order to give broad scope to the statutory protection and to prevent ease of evasion because of overly meticulous definitions.... State ex rel. Danforth v. Independence Dodge, Inc., 494 S.W.2d 362, 368 (Mo. Ct. App. 1973). Thus, in keeping with the broad purpose of the Act, the attorney general should have the authority to promulgate rules that define clear gun safety standards. 26 PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 27

17 Montana Nebraska SECTION (2) of Montana s Consumer Protection Act grants the Department of Commerce the power to make rules interpreting the provisions of [the Act], so long as such rules are not inconsistent with the rules, regulations, and decisions of the [F]ederal [T]rade [C]ommission and the federal courts in interpreting the... Federal Trade Commission Act. The Department can therefore declare unlawful any unfair or deceptive acts or practices in the conduct of any trade or commerce.... Mont. Code Ann (1999). The Department of Commerce s authority to adopt interpretive rules at its discretion has withstood constitutional attack. See T & W Chevrolet v. Darvial, 641 P.2d 1368, 1371 (Mont. 1982). Federal interpretations are guiding but not binding, id. (quoting State v. Reader s Digest Ass n, Inc., 501 P.2d 290, 301 (Wash. 1972)), and any rules not inconsistent with the federal cases or the enabling legislation will be upheld. Kopischke v. First Cont l Corp., 610 P.2d 668, 688 (Mont. 1980). Montana grants an interpretive power to its Department of Commerce that is virtually identical to the one held by the Massachusetts attorney general. Accordingly as the Massachusetts Supreme Judicial Court found that the Massachusetts gun safety regulations were not inconsistent or incongruent with the rules, regulations, and decisions of the FTC or the Federal Courts interpretations of the FTC Act, and further found the Attorney General s authority properly extend[ed] to regulating the sale of a product as unfair or deceptive when the product is defective in ways which a purchaser would not anticipate. ASSC v. Attorney Gen., 711 N.E.2d 899, 907 (Mass. 1999), SECTION (1) of Nebraska s Uniform Deceptive Trade Practices Act (UDTPA) grants the attorney general the power to prescribe such forms and promulgate such rules as may be necessary to administer the provisions of [the UDTPA]. The UDTPA enumerates several specific actions as deceptive trade practices, including [r]epresent[ing] that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have.... Neb. Rev. Stat (a)(5) (1999). The Nebraska Legislature intended that the provisions of the UDTPA be construed to effectuate their general purpose to make uniform the law of those states which enact them. Id No cases have specifically addressed the scope of the attorney general s rulemaking authority, though the Nebraska Supreme Court has affirmed his power to bring civil suits to enjoin deceptive practices. See State ex rel. Douglas v. Ledwith, 281 N.W.2d 729, 735 (Neb. 1979). Although the UDTPA only explicitly grants the attorney general the ability to make rules necessary to administer the Act, that state courts have upheld additional implied powers suggests that substantive rulemaking may fall within the scope of the attorney general s authority. Montana s Department of Commerce should enjoy similar power. 28 PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 29

18 New Jersey New Mexico SECTION of New Mexico s Unfair Practices Act (UPA) grants the attorney general the power to issue and file as required by law all regulations necessary to implement and enforce any provision of the [UPA]. The UPA broadly declares all [u]nfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce to be unlawful. N.M. Stat. Ann (Michie 1999). In interpreting the UPA, the courts are to be guided by the interpretations given by the [F]ederal [T]rade [C]ommission and the federal courts. Id The Massachusetts Supreme Judicial Court found that the Massachusetts gun safety regulations were not inconsistent or incongruent with the rules, regulations, and decisions of the FTC or the Federal Courts interpretations of the FTC Act, and further found the Attorney General s authority properly extend[ed] to regulating the sale of a product as unfair or deceptive when the product is defective in ways which a purchaser would not anticipate. ASSC v. Attorney Gen., 711 N.E.2d 899, 907 (Mass. 1999). By analogy, the New Mexico Attorney General should be able to promulgate similar regulations as they address arguably unfair and deceptive trade practices and are consistent with FTC regulations. THE NEW JERSEY CONSUMER FRAUD ACT (CFA) declares unlawful: [t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby... N.J. Stat. Ann. 56:8-2 (West 1989). In order to accomplish the objectives and to carry out the duties prescribed by th[e] act, the attorney general may promulgate such rules and regulations, and prescribe such forms as may be necessary, which shall have the force of law. Id. 56:8-4. In enacting the [CFA] the Legislature intended a broad and liberal reading of the statute and regulations to provide strict rules protecting consumers. Marascio v. Campanella, 689 A.2d 852, 856 (N.J. Super. Ct. App. Div. 1997) (citing Cox v. Sears Roebuck & Co., 647 A.2d 454 (N.J. 1994)). See also Hampton Hosp. v. Bresan, 672 A.2d 725, 728 (N.J. Super. Ct. App. Div. 1996). In keeping with this objective, the attorney general s powers include the authority to create substantive regulations. See Fenwick v. Kay Am. Jeep, Inc., 371 A.2d 13, 15 (N.J. 1977). The Massachusetts Supreme Judicial Court found that the Attorney General s authority properly extend[ed] to regulating the sale of a product as unfair or deceptive when the product is defective in ways which a purchaser would not anticipate. ASSC v. Attorney Gen., 711 N.E.2d 899, 907 (Mass. 1999). Similarly, a New Jersey court may find that given his broad grant of authority, the attorney general can promulgate gun safety regulations as such regulations arguably address deception, fraud, false pretense, false promise, [or] misrepresentation as required by the statute. 30 PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 31

19 Ohio Oregon PURSUANT TO Ohio Revised Code Annotated Section , sellers commit an unfair or deceptive act or practice when misrepresenting the standard or quality of a product or misleading a consumer into believing that a product has certain performance characteristics. The Code further provides that [t]he attorney general shall: [a]dopt, amend, and repeal procedural rules, and may... [a]dopt, amend, and repeal substantive rules giving due consideration and great weight...to[f]ederal [T]rade [C]ommission orders, trade regulation rules and guides, and the federal courts interpretations of... the Federal Trade Commission Act. Ohio Rev. Code Ann (West 1983). While the language of the Ohio code does not provide as broad a definition of unfair and deceptive as the Massachusetts Code, the Ohio attorney general arguably can promulgate gun safety standards. The Massachusetts Supreme Judicial Court found that the Massachusetts gun safety regulations were not inconsistent or incongruent with the rules, regulations, and decisions of the FTC or the Federal Courts interpretations of the FTC Act, and further found the Attorney General s authority properly extend[ed] to regulating the sale of a product as unfair or deceptive when the product is defective in ways which a purchaser would not anticipate. ASSC v. Attorney Gen., 711 N.E.2d 899, 907 (Mass. 1999). Similarly, Ohio s attorney general should be able to adopt comparable consumer protection firearms THE OREGON ATTORNEY GENERAL should have the power to regulate firearms through the Oregon Unlawful Trade Practices Act (UTPA). The UTPA is to be interpreted liberally as a protection to consumers. See Denson v. Ron Tonkin Gran Turismo, Inc., 566 P.2d 1177, 1179 n.4 (Or. 1977). Section (1)(u) of the Oregon Revised Statutes prohibits engaging in unfair or deceptive conduct in trade or commerce, and the attorney general should be able to define what conduct falls in this category, including the sale or transfer of unreasonably dangerous firearms. The attorney general must adopt a rule that identifies specific conduct as unfair or deceptive in trade or commerce prior to initiating a consumer protection suit. Or. Rev. Stat (4) (1999). The broad authority of the Oregon attorney general is evident in that a rule may be adopted under the UTPA for the express purpose of initiating a lawsuit. Just as the Massachusetts attorney general was able to use the consumer protection laws to define the sale or transfer of handguns that do not comply with safety regulations as unfair and deceptive practices, the Oregon attorney general should have statutory authority to do the same. regulations. 32 PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 33

20 Pennsylvania Rhode Island RULES DRAFTED BY THE ATTORNEY GENERAL under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) have the force and effect of law. 73 Pa. Cons. Stat. Ann (West 1993). The Pennsylvania attorney general thus has broad authority over adopting consumer protection regulations. The regulation of firearms as consumer products is consistent with the goals of Pennsylvania s consumer protection statutes. The legislative intent of the UTPCPL is to enhance the protection of the public from unfair or deceptive business practices. See Valley Forge Towers S. Condo. v. Ron-Ike Foam Insulators, Inc., 574 A.2d 641, 644 (Pa. Super. Ct. 1990) (citing Gabriel v. O Hara, 534 A.2d 488, 491 and n.6 (Pa. Super. Ct. 1987)). In order to further the goal of fraud prevention, the UTPCPL must be construed liberally to effectuate that remedial intent. See Commonwealth v. Monumental Props. Inc., 329 A.2d 812, (Pa. 1974). Pennsylvania courts read sections 3 and 3.1 of the UTPCPL together, and in so doing, interpret the statute as empowering the attorney general to define and establish by regulation unfair or deceptive acts or practices or unfair methods of competition in addition to those expressly defined in Section 2(4) of the UTPCPL. See Pa. Retailers Ass ns, Reliable, Inc. v. Lazin, 426 A.2d 712, 715 (Pa. Commw. Ct. 1981). Just as the Massachusetts attorney general defined the sale or transfer of unreasonably dangerous firearms as deceptive, the Pennsylvania attorney general could likely adopt this SECTION (C) of the Rhode Island General Laws states that rules and regulations promulgated by the attorney general shall have the force of law. Accordingly, the Rhode Island attorney general has broad rulemaking authority. The scope of this authority extends to matters of trade and commerce: [u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. R.I. Gen. Laws (1956). Therefore, the authority of the Rhode Island attorney general could likely include the ability to regulate firearms as consumer products. Although there is no case on point, the Rhode Island General Laws do give some insight as to how Rhode Island consumer protection statutes should be interpreted. Section states that [i]t is the intent of the legislature that in construing and of this chapter due consideration and great weight shall be given to the interpretations of the [F]ederal [T]rade [C]ommission and the federal courts relating to...the Federal Trade Commission Act... As the Massachusetts Supreme Judicial Court found that the attorney general s regulations were not inconsistent with FTC decisions and further found that the Massachusetts attorney general had rulemaking authority, the Rhode Island attorney general should be able to enact similar firearms provisions that comport with the language of section stance and exercise his rulemaking authority accordingly. 34 PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE PART TWO TARGETING SAFETY CENTER TO PREVENT HANDGUN VIOLENCE 35

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