From: David Kopel
Sent: Sunday, March 19, 2000 12:52 PM
Subject: Kopel analysis of S&W
Here's my first item for the National Review website. You will notice that it's a wee bit longer than 300 words. In fact, it's 3,402 words.
Nevertheless, I think your audience will find it quite useful, since it's the ONLY item on the web with a point-by-point analysis of the S&W/Clinton agreement.
Given the item's length, perhaps you might want to consider it for the print edition.
I promise that future items will be much shorter; but this topic really required a longer treatment.
Best wishes,
Dave
Smith & Wesson's Faustian Bargain
By Dave Kopel
Connecticut handgun manufacturer Smith & Wesson has earned the dubious honor of becoming Bill Clinton's favorite gun company. By agreeing to modify its product design and distribution, the company earned a promise not to be sued by Andrew Cuomo's Department of Housing and Urban Development, by the Attorneys General of New York and Connecticut, and got some-but not all-of the cities which have sued the company to drop their lawsuits.
Smith and Wesson says that if it had not stopped the suits, the company would have gone out of business within a year, due to attorney fees. But it should be noted that other gun companies are under equally great financial pressure, and have not capitulated. A bankruptcy filing can allow a company to survive during a temporary period of severely negative cash flow.
A second reason is that Smith and Wesson is a subsidiary of a British conglomerate, Tompkins PLC, and the conglomerate ordered Smith and Wesson to surrender.
The third reason is that the agreement will have only a moderate effect on the way Smith and Wesson does business. At the same time, the contract terms--if enforced against other gun companies--could drive them out of business. The application of the agreement to several of Smith & Wesson's smaller competitors, or to Glock (one of the largest and most successful handgun companies) would destroy them. Thus, Smith and Wesson gains an advantage, by agreeing to terms which will harm its competitors.
The positive short-term consequences for the company will be increased government sales and reduced litigation expenses. Litigation expenses will remain substantial, however, since at several jurisdictions (including Chicago and Wayne County, Michigan) will not sign the agreement, and will keep Smith & Wesson in court.
The negative consequences will be that Smith & Wesson will lose many retail dealers, and so that Smith & Wesson guns will no longer be found in almost every firearms store. In addition, gun buyers who care about Second Amendment rights will stop buying Smith & Wesson products. It is entirely possible that one or more activist groups will organize a boycott.
Kristen Rand, from the gun prohibition group the Violence Policy Center, accurately forecast the industry reaction: "There will be a firestorm in the industry in which every other manufacturer will treat Smith & Wesson as a pariah. In the gun culture, Clinton equals Satan and they will see that Smith has just made a deal with Satan." (Although if Clinton were actually a devil, perhaps "Billzebubba" might be the demon's name.)
Of course if S&W cared about its sister companies, S&W would not have capitulated in the first place. The combined effect of fewer dealers, fewer customers, and massive ill-will will be that Smith & Wesson will eventually lose its position as the leading handgun manufacturer.
In the long term, S&W has increased the chances that it, along with every other handgun manufacturer, will be destroyed. S&W has legitimated frivolous lawsuits against financially vulnerable businesses, and has thereby encouraged the victimization of many other business by abusive lawyers and prohibition groups. S&W has strengthened the hand of Handgun Control, Bill Clinton, and anti-gun politicians. The wording of the agreement implicitly legitimates the lies and fear-mongering of these prohibitionists. Once the current round of lawsuits has played out, the gun prohibition groups and their politicians will resume their campaign to destroy the American firearms business, starting with handgun companies. S&W's appeasement buys the company, at best, a short period before its enemies, strengthened by the appeasement, resume their attacks. Appeasement didn't save France, and it won't save S&W.
Here's what in the agreement, according to the official summary on the HUD website. My explanation is in [brackets].
All handguns must meet the following safety and design standards:
Second "hidden" serial number, to prevent criminals from obliterating serial numbers. [Already done by many gun manufacturers.]
External locking device sold with all guns within 60 days. [S&W has been giving away locks with every handgun since 1997.]
Internal locking device on all guns within 24 months. [The lock that S&W will use can be left in the "open" position permanently.]
Smart Guns -- Authorized User Technology. Manufacturers commit 2% of annual firearms revenues to the development of authorized user technology. Within 36 months, authorized user technology will be included in all new firearm models, with the exception of curios and collectors' firearms. If top eight manufacturers agree, authorized user technology will be included in all new firearms. [Note that the new technology is for new models only, not new production of current models. S&W has already been working at personalization technology. So far, solving the problem of putting a computer in a gun-and making the computer work 100% reliably-has proven extremely difficult. Buyer resistance to guns that only work 99% of the time is likely to be very serious. To the extent that this agreement helps pass legislation to mandate so-called smart guns, the agreement will put S&W's competitor Glock out of business;
Glock has made a business decision not to invest millions of dollars in personalization technology that may never work reliably.]
Child Safety. Within 12 months, handguns will be designed so they cannot be readily operated by a child under 6. [S&W guns already conform to this. The revolvers have a 10 pound trigger pull, and the semi-automatic pistols require that the slide be pulled.]
Performance test. All firearms will be subject to a performance test to ensure safety and quality. [Common industry practice already.]
Drop test. All firearms will be subject to a test to ensure they do not fire when dropped. [No handgun manufacturer in the U.S. makes guns which fail the drop test.]
All pistols must meet the following additional requirements: ["Pistol" in this context means a self-loading, semi-automatic handgun, as opposed to a revolver.]
Safety device. Positive manually operated safety device. [Already standard on S&W pistols.]
Magazine disconnectors must be available on all pistols to customers who desire the feature, within 12 months. [A magazine disconnect prevents the gun from firing if the magazine is not the gun, and there is a round in the firing chamber. People who own handguns for defensive purposes, including law enforcement officers, generally prefer guns without magazine disconnects.]
Chamber load indicators on all pistols, showing whether the pistol is loaded, within 12 months. [To the extent that the people begin to rely on chamber load indicators, they will violate the fundamental firearms safety rule: "treat every gun as if it's loaded.]
Large capacity magazines. New firearm designs will not be able to accept large-capacity magazines that were manufactured prior to September 1994. (Manufacture of such magazines has been prohibited since that date.) [So new S&W guns have to be incompatible with pre-1995 magazines. Here, S&W undercuts defensive gun use, by ensuring that people who buy new models will not be able to fire more than 11 rounds without stopping to change the magazine. (If the magazine holds ten, then the gun's maximum capacity is ten rounds in the magazine, plus one in the firing chamber.) There are many incidents in which defensive gun users have had to fire more than 11 rounds to stop multiple attackers, or even single attackers who are under the influence of drugs. This provision is very helpful to criminals, and will lead to more deaths, rapes, and robberies. But since President Clinton, Sarah Brady, and other gun prohibition leaders are morally opposed to defensive gun use by people who don't work for the government, this provision represents progress to them.]
Law enforcement and military exception. If law enforcement agencies or the military certify the need, exceptions to these requirements may be made. Manufacturers will ask that these guns not be resold to the civilian market. [Most law enforcement users abhor devices-such as magazine disconnects or computer chips-which may make a gun function unreliably. Thus, law enforcement retains the ability to obtain reliable firearms, since defensive gun use by government employees is legitimate. Likewise, law enforcement wants to be able to stop attacks by several large, drugged up gangsters, and therefore needs magazines holding more than ten rounds. Since defensive gun use by ordinary people is immoral, it would be better for them to die rather than defend themselves with an effective firearm.]
Warnings about safe storage and handling included with all firearms within six months. [Every firearms manufacturer already includes a safety manual with the gun.]
Illegal firearms. Manufacturers will not sell firearms that can readily be converted into fully automatic weapons or that are resistant to fingerprints. [The first item has been illegal since 1934. The second item is a slap at Intratec, which has advertised a particular model as resistant to fingerprints. In fact, the gun has a coating which reduces the metal's vulnerability to natural oils from the human hand; the coating does nothing to impede forensic reading of fingerprints.]
SALES AND DISTRIBUTION
Code of Conduct. The manufacturers will sell only to authorized dealers and distributors and allow their authorized distributors to sell only to authorized dealers. [This conforms to S&W's current business practice. Many smaller manufacturers, however, do not have the resources to maintain an authorized dealer system. They simply sell to wholesalers, who in turn sell to federally-licensed firearms dealers. Forcing the whole firearms industry into an authorized dealer system will help drive many S&W competitors out of business.]
Authorized dealers and distributors will agree to a code of conduct. If manufacturers receive notice of a violation by an authorized dealer or distributor, they will take action against the dealer or distributor, including termination of sales to the dealer or distributor. The Oversight Commission will review such actions and have authority to require termination or suspension if warranted.
The code of conduct will require authorized dealers and distributors to: Gun shows: make no gun show sales unless all sales at the gun show are completed only after a background check. [In other words, an authorized S&W dealer can't sell at a gun in most American states, since most states do not require background checks for handgun or long gun sales by private gun collectors. Already, every firearms dealer, including authorized S&W dealers, must, by law, run background checks on every customer; the requirement applies for in-store sales, and for gun show sales. Now, S&W will forbid its dealers to sell at gun shows simply because the law of the state where the gun show takes place authorizes unregistered sales by private collectors. Since gun show sales are a very important source of revenue for many small dealers, some dealers will probably drop Smith & Wesson, rather than dropping out of gun shows. This provision is an important step towards Handgun Control's goal of requiring government permission for anyone to obtain a gun, under any circumstances.]
Brady checks: wait as long as necessary for a completed Brady check showing that the purchaser is not a felon or otherwise prohibited before selling a gun to the purchaser. [Standard practice among most dealers already, although the law says that if the FBI instant check system fails to respond after 72 hours, the sale may go forward. Calling the National Instant Check System the "Brady check" is nonsense. The instant check was thought up Congressman Bill McCollum (R-Orlando), and his proposal to begin research on a National Instant Check System was vehemently, but unsuccessfully, opposed by Sarah Brady and her organization, while the NRA lobbied hard for the McCollum proposal.]
Safety training for purchasers: transfer firearms only to individuals who have passed certified safety course or exam and demonstrate to purchasers how to use all safety devices and how to load, unload, and safely store the firearm before completing the sale. [The second condition-demonstrating how to use the gun-is already common in many gun stores. The first condition won't affect buyers in California and a few other states that require safety classes for all handgun buyers. In other states, persons with concealed handgun permits, hunter safety classes, and the like would be allowed to buy. As for the rest, it is possible that a simple in-store paper and pencil test could be given.]
Multiple handgun sales: all purchasers of multiple handguns to take only one handgun from the store on the day of sale, at which point a multiple sales report will be filed with ATF. The remainder of the guns can only be collected after 14 days. [The multiple sales report has been required by law since 1968. The delay for gun pickup does not affect very many gun sales, but it is premised on the phony claim that lawful multiple purchases from retail gun stores are an important source of crime guns.]
Employee training: require all employees to attend ATF-approved training and to pass a exam on firearms laws, straw purchasers, illegal trafficking indicators, and gun safety. Insurance: carry liability insurance where available, with a minimum coverage of $1 million for each incident. Inventory control: maintain an electronic inventory tracking plan within 24 months Security: implement a security plan for securing firearms. Child access: require persons under 18 to be accompanied by adults in gun stores or gun sections of stores. [Mandatory political correctness. No more sending your teenager to the local gun store to pick up some gun cleaning supplies for you. This helps further the idea that guns are evil, like cigarettes, and that children should be kept away from them.]
Weapons attractive to criminals: not sell large capacity magazines or semiautomatic assault weapons. [Furthers the lie from Handgun Control and Bill Clinton that so-called "assault weapons"-guns with certain cosmetic features-are preferred by criminals, as are magazines that hold more than 10 rounds. The sale of any of these items made before 1995 is perfectly legal, and HCI's campaign for confiscation of all these items has been a failure. Having failed to win in the legislature, HCI gets S&W's assistance in making it impossible for law-abiding citizens to buy these lawful items. The clause implies that S&W's manufacture of 13, 15, and 17 round magazines before 1995 was aimed at the criminal market. What a pathetic statement from a company that has always made its gun for law-abiding citizens, not criminals. S&W is surrendering not only the rights of its customers, but its own good name. Many gun dealers are willing to sell S&W guns according to S&W's terms, but here, S&W is attempting to forbid the sale of products from other companies. This provision will certainly cause some dealers to drop the S&W product line, rather than allowing one manufacturer to dictate the store's inventory.]
Compliance: provide law enforcement, government regulators, and the Oversight Commission established in this Agreement with access to documents necessary to determine compliance; cooperate fully in the Agreement's Oversight mechanism. [In other words, stores that sell S&W guns must surrender their business privacy, and their Fourth Amendment right to insist that government employees obtain a court order before looking at private records. This undermines the 1986 Firearms Owners Protection Act, which restricts government access to information about firearms purchasers. Another reason for stores to drop S&W, as opposed to giving up their constitutional rights.]
Crime gun traces: maintain an electronic record of all ATF trace requests and report trace requests to manufacturers. [Easy for any store with a computer.]
Indicted dealers: forgo firearms sales to licensed dealers known to be under indictment. [So much for the Fifth Amendment principle of innocent until proven guilty. If a gun store owner annoys a local prosecutor by speaking out in favor of the Second Amendment, the prosecutor can drive the store out business. Indictments are easy to obtain--especially since the Supreme Court does not require prosecutors to show the Grand Jury exculpatory evidence, or to allow the subject of the indictment to testify to the Grand Jury, or to present his own evidence, or to have an attorney speak to the Grand Jury. Once the store is indicted, S&W cuts the store off, and the store has no product to sell, and thus goes out of business. The prosecutor achieves his objective, and doesn't need to even take the case to trial.]
Straw purchasers: not to make sales to straw purchasers. [Has been illegal since 1968.]
Manufacturer commitments. Manufacturers will: Provide quarterly sales data to ATF. [Resurrects a BATF proposal that Congress voted down by a 3-1 margin in 1978.]
Not market guns in any manner designed to appeal to juveniles or criminals. [Doesn't affect S&W, which only makes handguns, but undercuts companies like Marlin, which make lightweight .22 rifles for teenagers.]
Refrain from selling any modified/sporterized semi-automatic pistol of type that cannot be imported into U.S. [No impact on S&W, but does affect some other handgun companies.]
Reaffirm policy of not placing advertisements in vicinity of schools, high crime zones, and public housing. [Most gun stores advertise with newspaper ads rather than billboards, so this has little impact. But the provision implies that people in high crime zones and public housing should not have firearms for protection.]
Implement a security plan for securing firearms. [Common already, since dealers don't want their inventory stolen.]
Designate an officer to ensure compliance with the Agreement.
Corporate responsibility for crime gun traces. If an authorized dealer or distributor has a disproportionate number of crime guns traced to it within three years of sale, the manufacturers will take action, including possible termination or suspension, against the dealer or distributor. The Oversight Commission will review such actions and have authority to require termination or suspension if warranted. [BATF traces a gun whenever local law enforcement asks. There is no requirement that the gun be connected to a crime, and the majority of gun traces are unrelated to the use of a gun in a crime. By requesting traces in every possible circumstance, a local police chief can drive up the trace numbers for gun stores in his area. Then, S&W will cut off sales to those stores-even though the stores have done nothing wrong, and have sold every gun in compliance with the law.]
Oversight Commission will be established and empowered to oversee implementation of the Agreement. The Commission will have five members selected as follows: one by manufacturers; two by city and county parties; one by state parties; one by ATF. [Thus, the commission will have a 4-1 anti-gun majority. Smith & Wesson puts its future in the hands of a commission composed of people who despise S&W's very existence.]
The Commission's powers will include the authority to review compliance with the design and safety requirements, review the safety and training program for dealer and distributor employees, review manufacturer actions against dealers or distributors that violate the Agreement or have a disproportionate number of crime gun traces, and require suspension or termination if warranted.
Ballistics Imaging. Within six months, if technologically available, manufacturers will fire all firearms before sale and will enter the digital image of the casings in a system compatible with the National Integrated Ballistics Identification Network and accessible to ATF. This will enable law enforcement to trace crime guns when only the bullets or casings are recovered. [And bring us a few steps closer to universal gun registration.]
Access 2000. Manufacturers shall participate in ATF's Access 2000 program, which establishes electronic links with ATF and enables high-speed tracing of crime guns. [Already done by most large manufacturers. Again, most traces are unrelated to gun crime.]
Legislation. The parties will work together to support legislative efforts to reduce firearm misuse and the development of authorized user technology. [S&W commits itself to work with the gun prohibition lobby, and to outlaw companies like Glock, which do not want to risk their customers' lives by making potentially unreliable computer guns.]
Education trust fund. Upon resolution of all current city, state, and county lawsuits, manufacturers will dedicate 1% of overall firearms revenues to an education trust fund. [Who controls the trust fund?]
Most favored entity. If other manufacturers enter agreements with more expansive design and distribution reforms, and those manufacturers, along with the manufacturer parties to this Agreement, account for fifty percent or more of United States handgun sales, the manufacturer parties to this Agreement will agree to abide by the same reforms. [S&W commits itself to even further abuses, if more gun companies capitulate.]
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