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Part 1 of 3 parts
What No One Bothered To Tell You
About The Smith & Wesson Settlement
by Jeff Snyder
--------------------------------------------------------------------------------
[An abridged version of this article appears in the July-August 2000 issue of American Handgunner magazine, published by Publishers Development Corporation. The full-length version is presented here for the first time, with the publisher's and author's permission.]
--------------------------------------------------------------------------------
Section Menu
• Safety standards
• Ban on cheap,
concealable handguns
• Ban on large
capacity magazines
and assault weapons
• Dealer requirements
• More gun control
• Registration and
ballistic fingerprinting
• Helping sell
gun control
• Cost of guns and
used gun sales
• Endgame
Smith & Wesson, the nation's largest handgun manufacturer, has become the first company to fall to the federal, state and local governments' litigation campaign against gun manufacturers. On March 17, it entered into an agreement imposing sweeping restrictions on the design, marketing and distribution of firearms with the Department of Treasury, the Department of Housing and Urban Development, and various state and city governments. The agreement was entered into in settlement of several lawsuits and in exchange for an agreement by other state and local governments not to bring suit on similar grounds. HUD, Treasury, and various cities are now putting intense pressure on Glock and other handgun manufacturers to sign the agreement. It's bare-knuckle coercion. Upon hearing of Glock's refusal to sign the agreement, New York Attorney General Elliot Spitzer warned the company that "If you do not sign, your bankruptcy lawyers will be knocking at your door."
The S&W Settlement Agreement has dire implications for the remnant of the right to keep and bear arms. Unfortunately, blatant and massive incursions upon the Bill of Rights, along with record high peace-time taxation and Presidents who bomb people in far away places (i.e., kill them) in order to divert attention from personal problems at home, do not seem to excite much attention these days, so perhaps it is also necessary to point out that the agreement represents a new paradigm for regulation of business that, from government's perspective, simply offers too many benefits not to be used again and again. Yes! Should your industry be targeted next, it will certainly limit how much money you can make!
Mainstream reporting on the actual contents of the agreement has been minimal, focusing primarily on the new safety requirements for firearms, and the fact that dealers will not be able to sell firearms at gun shows unless all purchasers are subject to background checks. The agreement goes far beyond this, however, imposing significant restrictions long sought by gun control activists, including a ban on selling cheap, concealable handguns and a requirement that gun buyers first take a safety course, and substantially expands existing federal gun control laws. But more importantly, if the major gun manufacturers can be pressured to sign this agreement, it will successfully nationalize the operations of the gun industry, controlling manufacturing and design, distribution and sales and, to a lesser extent, advertising and marketing. Not surprisingly, then, the agreement also presses manufacturers and dealers into service as adjuncts to law enforcement. Manufacturers and dealers will become government informants.
Because the agreement is a contract negotiated in settlement of litigation, all this has been achieved in a manner that entirely circumvents the legislative process (i.e., representative government) at both federal and state levels. What is perhaps more remarkable, however, is that the agreement also goes very far toward bypassing Constitutional review.
A federal law, of course, is subject to challenge in the courts on the grounds that it violates some provision of the Bill of Rights or is unconstitutional because it exceeds the legislative powers of Congress. In recent years the Supreme Court has struck down gun control legislation, namely, the Gun-Free School Zone Act and various parts of the Brady Act, on the grounds that the acts exceeded the legislative powers granted to Congress. The S&W agreement, however, is fairly beyond Constitutional review because it is a contract among the parties. First, with the notable exception of Congress itself, which might challenge the agreement as a usurpation of its legislative authority, it is highly unlikely that anyone other than the actual parties to the agreement will have standing to bring the suit.
Second, it is very unclear to what extent a party such as S&W can seek to avoid obligations it has contractually agreed to on the grounds that the obligations, if imposed by act of Congress or state legislature, would be unenforceable violations of a fundamental right (like the Second Amendment) or would be beyond Congress' legislative power. Just as a person can voluntarily waive his Fourth Amendment rights by consenting to a search, it is likely that a person can agree to waive his Constitutional rights by contract with the government. As a result, the S&W agreement may well be Constitutionally unreviewable. Stated otherwise, the government's power under the agreement may freely exceed all Constitutional limits, and the power may be exercised privately and extra-legally.
As if to drive this point home, the S&W agreement creates, sui generis, a new regulatory body, the "Oversight Commission," to implement the agreement and conduct inspections of participating manufacturers and dealers. The Commission is composed of 5 members: two appointed by the city and county parties to the agreement, one appointed by the state parties, one appointed by the manufacturer parties and one by the ATF. Action is by majority rule. The Commission and its staff are funded by the various parties to the agreement, but the maximum amount a manufacturer can be compelled to pay is $25,000 annually.
The Commission possesses large, undefined discretionary authority in carrying out the purpose of the agreement. This, perhaps, is nothing new, since many Congressional grants of authority to federal regulatory agencies are broad and ill-defined. What is particularly noteworthy about this new regulatory body, though, is that the mixed composition of the Commission renders it virtually unaccountable to any particular political entity or constituency. Unlike the federal alphabet agencies which remain, at least theoretically, subject to Congressional oversight and thus are only one step removed from the electorate, here is a powerful, new regulatory agency made up of persons appointed from four different levels of government (city, county, state and federal), three of whom are appointed by groups of governments, and thus removed from direct accountability to Congress, the President, any particular state legislature, governor, mayor, or electoral group. It is simply impossible for the people, by coordinating their efforts, to exercise even an indirect control over the composition and hence the action taken by this Commission. This is pure private making of public policy and constitutes a seismic transformation of representational government.
The S&W agreement thus represents, even more fundamentally than the tobacco company settlement, a startling new method of autocratic, non-reviewable and extra-legal regulation by the executive branches of government that controls the fundamental operations of an entire industry: design and manufacturing standards, advertising, distribution and sales. The fact that it has been done to an industry that significantly affects the ability of individuals to exercise one of their fundamental rights, listed second only to the free exercise of religion, speech and assembly, should raise alarms from all civil libertarians and adherents to constitutional, representational government.
To understand the magnitude of the agreement's accomplishments, you must have some knowledge of what the agreement says and how it works within the context of existing firearms laws. Spend a little time on this, and behold the face of your government.
Safety standards
Within 24 months, each firearm made by S&W and any other manufacturer who joins the agreement must have "a built-in, on-board locking system, by which the firearm can only be operated with a key or combination or other mechanism unique to that gun." The manufacturer must commit 2 percent of annual firearm sales revenues to the development of a technology that recognizes only authorized users, which must be incorporated in all new firearm designs in 36 months. However, if the eight firearms manufacturers and importers with the largest U.S. firearms sales volume agree to incorporate this technology in all firearms, then all manufacturers who are parties to the agreement must do so. In other words, at that point, all manufacturers who are parties to the agreement will have to cease making firearms without the authorized user technology.
Each firearm must be designed so that it "cannot be readily operated by a child under the age of 6." This can be accomplished by making trigger pull strength in double action mode exceed 10 pounds, designing the firing mechanism so that an average 5 year old's hands would be too small to operate the gun, or "requiring multiple, sequenced actions in order to fire the gun."
Depending on how far this and the other safety requirements are taken, these alterations may seriously compromise the usefulness or reliability of a handgun for self-defense purposes. Having to fumble with a complex lock can cost precious seconds that may mean the difference between life and death. As a further example, it is possible that more revolvers and pistols will be designed to fire only in double action mode, which requires a much stronger trigger pull because the pull both cocks and then releases the hammer. As most handgun owners know, the strength of trigger pull dramatically affects accuracy because compressing the trigger against strong resistance can cause the gun to twist in the hand (i.e, the muzzle will move off target as you squeeze). Overcoming this obstacle requires hand strength and serious training, and clearly imposes a greater hardship on women, who generally have smaller, weaker hands than men.
The proof, though, that these standards may compromise usefulness lies within the agreement itself. The military and law enforcement are entitled to acquire guns without the new safety features by filing for an exemption.
Ban on cheap, concealable handguns
The agreement requires firearms to have a barrel length of at least 3 inches, unless the gun passes certain accuracy tests. All guns must pass certain "drop tests" and performance tests, including reliability and test firing with "proof cartridges" that generate excess pressure and test metal strength. These requirements do not appear onerous for quality firearms, but will very likely eliminate many cheaper, less well made guns. In addition, the height of a pistol must be at least 4 inches and the length at least 6 inches unless, again, the firearm meets certain accuracy standards. Continued next page…
[This message has been edited by ernest2 (edited June 23, 2000).]
[This message has been edited by ernest2 (edited June 23, 2000).]
Part 1 of 3 parts
What No One Bothered To Tell You
About The Smith & Wesson Settlement
by Jeff Snyder
--------------------------------------------------------------------------------
[An abridged version of this article appears in the July-August 2000 issue of American Handgunner magazine, published by Publishers Development Corporation. The full-length version is presented here for the first time, with the publisher's and author's permission.]
--------------------------------------------------------------------------------
Section Menu
• Safety standards
• Ban on cheap,
concealable handguns
• Ban on large
capacity magazines
and assault weapons
• Dealer requirements
• More gun control
• Registration and
ballistic fingerprinting
• Helping sell
gun control
• Cost of guns and
used gun sales
• Endgame
Smith & Wesson, the nation's largest handgun manufacturer, has become the first company to fall to the federal, state and local governments' litigation campaign against gun manufacturers. On March 17, it entered into an agreement imposing sweeping restrictions on the design, marketing and distribution of firearms with the Department of Treasury, the Department of Housing and Urban Development, and various state and city governments. The agreement was entered into in settlement of several lawsuits and in exchange for an agreement by other state and local governments not to bring suit on similar grounds. HUD, Treasury, and various cities are now putting intense pressure on Glock and other handgun manufacturers to sign the agreement. It's bare-knuckle coercion. Upon hearing of Glock's refusal to sign the agreement, New York Attorney General Elliot Spitzer warned the company that "If you do not sign, your bankruptcy lawyers will be knocking at your door."
The S&W Settlement Agreement has dire implications for the remnant of the right to keep and bear arms. Unfortunately, blatant and massive incursions upon the Bill of Rights, along with record high peace-time taxation and Presidents who bomb people in far away places (i.e., kill them) in order to divert attention from personal problems at home, do not seem to excite much attention these days, so perhaps it is also necessary to point out that the agreement represents a new paradigm for regulation of business that, from government's perspective, simply offers too many benefits not to be used again and again. Yes! Should your industry be targeted next, it will certainly limit how much money you can make!
Mainstream reporting on the actual contents of the agreement has been minimal, focusing primarily on the new safety requirements for firearms, and the fact that dealers will not be able to sell firearms at gun shows unless all purchasers are subject to background checks. The agreement goes far beyond this, however, imposing significant restrictions long sought by gun control activists, including a ban on selling cheap, concealable handguns and a requirement that gun buyers first take a safety course, and substantially expands existing federal gun control laws. But more importantly, if the major gun manufacturers can be pressured to sign this agreement, it will successfully nationalize the operations of the gun industry, controlling manufacturing and design, distribution and sales and, to a lesser extent, advertising and marketing. Not surprisingly, then, the agreement also presses manufacturers and dealers into service as adjuncts to law enforcement. Manufacturers and dealers will become government informants.
Because the agreement is a contract negotiated in settlement of litigation, all this has been achieved in a manner that entirely circumvents the legislative process (i.e., representative government) at both federal and state levels. What is perhaps more remarkable, however, is that the agreement also goes very far toward bypassing Constitutional review.
A federal law, of course, is subject to challenge in the courts on the grounds that it violates some provision of the Bill of Rights or is unconstitutional because it exceeds the legislative powers of Congress. In recent years the Supreme Court has struck down gun control legislation, namely, the Gun-Free School Zone Act and various parts of the Brady Act, on the grounds that the acts exceeded the legislative powers granted to Congress. The S&W agreement, however, is fairly beyond Constitutional review because it is a contract among the parties. First, with the notable exception of Congress itself, which might challenge the agreement as a usurpation of its legislative authority, it is highly unlikely that anyone other than the actual parties to the agreement will have standing to bring the suit.
Second, it is very unclear to what extent a party such as S&W can seek to avoid obligations it has contractually agreed to on the grounds that the obligations, if imposed by act of Congress or state legislature, would be unenforceable violations of a fundamental right (like the Second Amendment) or would be beyond Congress' legislative power. Just as a person can voluntarily waive his Fourth Amendment rights by consenting to a search, it is likely that a person can agree to waive his Constitutional rights by contract with the government. As a result, the S&W agreement may well be Constitutionally unreviewable. Stated otherwise, the government's power under the agreement may freely exceed all Constitutional limits, and the power may be exercised privately and extra-legally.
As if to drive this point home, the S&W agreement creates, sui generis, a new regulatory body, the "Oversight Commission," to implement the agreement and conduct inspections of participating manufacturers and dealers. The Commission is composed of 5 members: two appointed by the city and county parties to the agreement, one appointed by the state parties, one appointed by the manufacturer parties and one by the ATF. Action is by majority rule. The Commission and its staff are funded by the various parties to the agreement, but the maximum amount a manufacturer can be compelled to pay is $25,000 annually.
The Commission possesses large, undefined discretionary authority in carrying out the purpose of the agreement. This, perhaps, is nothing new, since many Congressional grants of authority to federal regulatory agencies are broad and ill-defined. What is particularly noteworthy about this new regulatory body, though, is that the mixed composition of the Commission renders it virtually unaccountable to any particular political entity or constituency. Unlike the federal alphabet agencies which remain, at least theoretically, subject to Congressional oversight and thus are only one step removed from the electorate, here is a powerful, new regulatory agency made up of persons appointed from four different levels of government (city, county, state and federal), three of whom are appointed by groups of governments, and thus removed from direct accountability to Congress, the President, any particular state legislature, governor, mayor, or electoral group. It is simply impossible for the people, by coordinating their efforts, to exercise even an indirect control over the composition and hence the action taken by this Commission. This is pure private making of public policy and constitutes a seismic transformation of representational government.
The S&W agreement thus represents, even more fundamentally than the tobacco company settlement, a startling new method of autocratic, non-reviewable and extra-legal regulation by the executive branches of government that controls the fundamental operations of an entire industry: design and manufacturing standards, advertising, distribution and sales. The fact that it has been done to an industry that significantly affects the ability of individuals to exercise one of their fundamental rights, listed second only to the free exercise of religion, speech and assembly, should raise alarms from all civil libertarians and adherents to constitutional, representational government.
To understand the magnitude of the agreement's accomplishments, you must have some knowledge of what the agreement says and how it works within the context of existing firearms laws. Spend a little time on this, and behold the face of your government.
Safety standards
Within 24 months, each firearm made by S&W and any other manufacturer who joins the agreement must have "a built-in, on-board locking system, by which the firearm can only be operated with a key or combination or other mechanism unique to that gun." The manufacturer must commit 2 percent of annual firearm sales revenues to the development of a technology that recognizes only authorized users, which must be incorporated in all new firearm designs in 36 months. However, if the eight firearms manufacturers and importers with the largest U.S. firearms sales volume agree to incorporate this technology in all firearms, then all manufacturers who are parties to the agreement must do so. In other words, at that point, all manufacturers who are parties to the agreement will have to cease making firearms without the authorized user technology.
Each firearm must be designed so that it "cannot be readily operated by a child under the age of 6." This can be accomplished by making trigger pull strength in double action mode exceed 10 pounds, designing the firing mechanism so that an average 5 year old's hands would be too small to operate the gun, or "requiring multiple, sequenced actions in order to fire the gun."
Depending on how far this and the other safety requirements are taken, these alterations may seriously compromise the usefulness or reliability of a handgun for self-defense purposes. Having to fumble with a complex lock can cost precious seconds that may mean the difference between life and death. As a further example, it is possible that more revolvers and pistols will be designed to fire only in double action mode, which requires a much stronger trigger pull because the pull both cocks and then releases the hammer. As most handgun owners know, the strength of trigger pull dramatically affects accuracy because compressing the trigger against strong resistance can cause the gun to twist in the hand (i.e, the muzzle will move off target as you squeeze). Overcoming this obstacle requires hand strength and serious training, and clearly imposes a greater hardship on women, who generally have smaller, weaker hands than men.
The proof, though, that these standards may compromise usefulness lies within the agreement itself. The military and law enforcement are entitled to acquire guns without the new safety features by filing for an exemption.
Ban on cheap, concealable handguns
The agreement requires firearms to have a barrel length of at least 3 inches, unless the gun passes certain accuracy tests. All guns must pass certain "drop tests" and performance tests, including reliability and test firing with "proof cartridges" that generate excess pressure and test metal strength. These requirements do not appear onerous for quality firearms, but will very likely eliminate many cheaper, less well made guns. In addition, the height of a pistol must be at least 4 inches and the length at least 6 inches unless, again, the firearm meets certain accuracy standards. Continued next page…
[This message has been edited by ernest2 (edited June 23, 2000).]
[This message has been edited by ernest2 (edited June 23, 2000).]