Smith & Wesson's Faustian Bargain, Part I
Dave Kopel is the research director of the
Institute, a free market think tank in Golden, Colorado.
March 20, 2000, National Review
Online. More by Kopel on
lawsuits against gun
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
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
To be sure, 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. The
negative consequences will be that Smith & Wesson will lose many
of its retailers. In addition, gun buyers who care about Second
Amendment rights will stop buying Smith & Wesson products.
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
In short, S&W's appeasement — which, in many cases, does little
to alter the way the company has been doing business — gains it
a short armistice with its enemies. But appeasement didn't save
France, and it won't save S&W.
Here’s the first half of what's in
the agreement, according to the official summary on the HUD
website. I have decoded it in [brackets].
All handguns must meet the following safety and design
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
Internal locking device on all guns within 24 months.
[The lock that S&W will use can be left in the “open” position
Manufacturers commit 2% of annual firearms revenues to the
development of authorized user technology [Smart Guns]. 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
[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
All pistols must meet the following additional
[“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 in 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.]
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. 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.]
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
[Law enforcement retains the ability to obtain reliable
firearms. 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.]
Smith & Wesson's Faustian Bargain, Part II
By David Kopel
National Review Online. March 21, 2000
As promised, here’s the second half of Smith & Wesson's Faustian
agreement with HUD, again decoded in [brackets].
Warnings about safe storage and handling included with all firearms
within six months.
[Every firearms manufacturer already includes a safety manual with the
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
Manufacturers will sell only to authorized dealers and distributors
and allow their authorized distributors to sell only to authorized
[This conforms to S&W’s current business practice. Many smaller
manufacturers, however, do not have the resources to maintain an
authorized dealer system.]
Authorized dealers and distributors will agree to a code of
conduct...the code of conduct will require authorized dealers and
distributors to: 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 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
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
[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.]
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 second condition — demonstrating how to use the gun — is already
common in many gun stores.]
All purchasers of multiple handguns [can] 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
[The multiple sales report has been required by law since 1968. The delay
is premised on the phony claim that lawful multiple purchases from retail
gun stores are an important source of crime guns.]
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.]
[Do] not sell large capacity magazines or semiautomatic assault
[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. 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.]
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
[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.]
Maintain an electronic record of all ATF trace requests and report
trace requests to manufacturers.
[Easy for any store with a computer.]
Forgo firearms sales to licensed dealers known to be under indictment.
[So much for the Fifth Amendment principle of innocent until proven
[Do not] make sales to straw purchasers.
[Has been illegal since 1968.]
Manufacturers will: Provide quarterly sales data to ATF.
[Resurrects a BATF proposal that Congress voted down by a 3-1 margin in
[Do not] market guns in any manner designed to appeal to juveniles or
[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.]
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. ,br>[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.]
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
[...and bring us a few steps closer to universal gun registration.]
Manufacturers shall participate in ATF’s Access 2000 program, which
establishes electronic links with ATF and enables high-speed tracing of
[Already done by most large manufacturers. Again, most traces are
unrelated to gun crime.]
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.]
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?]
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
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