A cultural critique of gun litigation

Like nearly all contentious political issues in our society, gun control has made its way to court. Is the new wave of lawsuits against the firearms industry a positive development? We don't think so. But our opposition to America's gun litigation isn't based on conventional grounds. We don't have an opinion on whether the plaintiffs' claims are well grounded in tort law. We aren't sure whether the remedies the plaintiffs seek would promote or impede public safety. We don't care whether the lawsuits are antidemocratic, disrespectful of federalism, or inconsistent with the Second Amendment. And we are passionately unmoved by the question of whether courts are as fit as legislatures or administrative agencies to craft efficient regulatory standards. We oppose gun litigation because we think it's culturally obtuse. In courts of law, the gun debate is reduced to a set of contested factual claims about the consequences of firearms design and marketing. But in the court of public opinion, the gun debate inevitably broadens into a dispute over conflicting worldviews and the social status of those who adhere to them. Because Americans care just as much about what guns and the regulation of them say-about what we value and who we identify with, about what sort of society we live in, about whose stock is up and whose is down in the market for social prestige-any mode of decision making that focuses only on what guns do is bound to miss the point. It turns out that this deficiency isn't unique to gun litigation. On the contrary, it's characteristic of mainstream gun control discourse wherever it takes place. Academics, criminal justice bureaucrats, and even elected representatives focus obsessively on consequences-"more guns, more crime" or "more guns, less crime"?-and stand mute on the broader cultural significance of gun control. And as the persistence and persistent acrimony of the gun debate in America attest, this "just the facts, please" approach hasn't gotten us very far. It won't get us any further in the gun litigation, where consequentialist discourse will misfire for the same reasons it has in the political domain. One problem with emphasizing consequences to the exclusion of culture is logical. If citizens care, and care intensely, about the social meanings that guns express, then even indisputable empirical proof of the public safety consequences of a particular gun law won't give citizens sufficient reason to favor or oppose it. No matter what the outcome of the gun litigation, then, the political dispute over guns and gun control can be expected to continue-as the spate of recent statutory immunity provisions illustrates. Another and even more potent objection to obsessive gun consequentialism is psychological. By virtue of a host of cognitive and social mechanisms, what individuals believe about the effects of gun control can't be disentangled from how they feel about them. For this reason, the factual debate inevitably reproduces the cultural-not just in result but in tone as well, since those on both sides inevitably conclude that those who disagree with them on the facts are motivated to do so by bad faith. Thus, however fact focused the gun litigation might look, its results will conform to the cultural priors of those who decide them. The only way to resolve the American gun debate is to make its cultural underpinnings explicit. Policy analysts, elected officials, advocacy groups, and ordinary citizens must focus their attention on constructing procedures and framing policies that dispel the common anxiety that the outcome of the gun debate will necessarily elevate one understanding of what America stands for and denigrate all the others. The emergence of this form of constructive cultural deliberation is singularly unlikely to arise from gun litigation. We will develop these claims in three steps. In section I, we will examine the cultural underpinnings of the American gun debate. To this end, we will analyze the debate within a framework derived from the cultural theory of risk perception, which furnishes a powerful explanation of the mechanisms by which culture shapes factual beliefs about guns and constrains the power of consequentialist arguments to quiet political conflict over them. In section II, we present a critique of the gun litigation, which lacks the power to resolve the American gun debate precisely because it misapprehends the psychological and social dynamics that figure in the cultural theory of risk perception. We conclude with a call for expressive deliberation, a mode of policy-making that we believe holds the key to fashioning gun laws that appeal to Americans of all cultural persuasions.