Wednesday, August 10, 2005

Gun Litigation: A Culture Theory Critique Gun Litigation: A Culture Theory Critique

The Cultural Cognition Project at Yale Law school has an interesting theory, that our views on the gun debate are determined to a very great extent by our cultural leanings. Those who are more communitarian and/or egalitarian concentrate on the dangers of guns, while those who are more individualistic and/or hierarchical concentrate on the dangers of not having guns. At least, in my experience, their theory makes sense.

What is to be made though of the recent legislation that basically immunized gun manufacturers from some types of liability? My view is that it was for the best because the avowed purpose of gun litigation, which is what the legislation was in response to, was to change the behavior of gun manufacturers on a national level. The problem that I see with this litigation though is that if any of these lawsuits had suceeded, they would have essentially forced a national conclusion to this dispute through actions of a local court, comprised of judge and jury from one small locale in this country. As the authors of the paper point out, there is a big geographic dimension in this dicotomy between egalitarian and/or communitarian versus individualistic and/or hierarchical. Those who are more eastern and/or more urban tend to be more egalitarian and/or communitarian, while those who are more western and/or more rural tend to be more individualistic and/or hierarchical. Not surprisingly, this matches relatively closely the last election. The more egalitarian and/or communitarians tended to reside in blue states or counties, while the more individualistic and/or hierarchical tend to reside in red states or counties.

The problem then is that if the litigation had been allowed to proceed, ultimately, some blue state judge and/or jury would have found against the gun manufacturers, and imposed what would have been, in essence, a national resolution to this debate.

The danger here, that I will suggest has been averted, was that what is a national political debate, would have been resolved through judicial means. Arguably, it was precisely this sort of judicial solution to a political dispute that has caused the abortion debate to continue to be so rancorous to this date. The biggest question that those on the left want Judge Roberts to answer concerns whether or not he would vote to overturn Roe v. Wade.

I would suggest that, in the end, it is much better to fight this sort of culteral dispute out in the political arena than in the courts, esp. here, where we are talking courts that would inevitably be colored by their locale.

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