Andrew Jay McClurg, The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence, 19 Seton Hall Legislative Journal 777-820 (1995).
The author is credited by legal scholars for helping create the tort theory of “negligent marketing” claims against handgun manufacturers. In this article, arguing that strict liability was a failed theory, he asserts that victims of gun violence should refocus their sights on the more prosaic liability theory of common law negligence. In his words, it is time to “go back to basics.”
The article advances three different negligent marketing theories for suing handgun manufacturers: (1) negligence in marketing unusually dangerous weapons such as assault weapons and Saturday Night Special-type handguns; (2) negligence in promoting the sale of handguns to criminal consumers; and (3) negligence in failing to take reasonable precautions to minimize the risk of handguns being sold to those likely to misuse them. The strengths and weaknesses of each theory are extensively analyzed.