Encouraged by the recent success of states suing tobacco companies for the medical expenses caused by their product, cities nationwide including Chicago, Miami, New Orleans and Atlanta have filed suits against gun manufactures, trying to hold them accountable for the damage guns have done to their respective communities. In a rather predictable response, the National Rifle Association (NRA) has released its political hounds, engaging in a nationwide effort to lobby state legislatures to write laws blocking or preempting litigation.

The recent onslaught of anti-tobacco and anti-gun litigation offers an enticing bandwagon. However tempting any opportunity to finally strike a slow to the hitherto elusive tobacco companies and gun manufacturers may be, the policy of circumventing on augmenting legislature through judicial action sets a policy neither America nor policy neither America nor any legislative democracy can afford.

The basic problem with these lawsuits is that they represent a gross misuse of the judiciary. While the Constitution assigns Congress the power of legislation, it is the courts' duty to evaluate the constitutionality of such legislation and to apply it.

Lawsuits that essentially punish tobacco companies for selling cigarettes and gun manufacturers for selling guns violate this balance. The movement to litigation stems from frustration with an inability to expand current tobacco and gun control legislation. The current suits represent a blatant attempt to circumvent proper legislative procedure.

A decision against the gun companies would hold that in selling guns that ultimately end up being used in murders, gun manufacturers violate a written law and can thus be held responsible for the murders in which the guns are used. However, on both a federal and state level, legislatures have explicitly legalized both the sale of tobacco products and firearms, outlining in law which guns and tobacco products can and cannot be sold.

Those behind the gun lawsuits argue that holding gun companies accountable for gun-related deaths would be tantamount to holding car companies liable for production flaws that cause accidents for food producers that poison customers with spoiled goods. The crucial difference is that gun-related deaths are not caused by flaws in the product; they result from either accidental or intentional misuse of fully functional guns. What anti-gun legislation attempts to do is more analogous to holding car companies liable for hit-and-run deaths or fatal car wrecks.

The tobacco suits seem to have a somewhat stronger base at first; it is the product itself, not misuse by its owner, that causes real bodily harm. Still, legislatures aware of the harmful side effects of tobacco products have intentionally refrained from outlawing tobacco distribution, despite prohibitions on other unhealthy drugs such as cocaine, heroine or marijuana. Furthermore, Food and Drug Administration (FDA) regulations regarding tobacco production specify which products can be legally distributed. Thus, any decision finding criminal fault in production of products that meet these established standards directly contradicts--or perhaps I should say circumvents--the existing law of the land.

The lawsuits filed against tobacco companies side step this obstacle by pretending to address the long-term effects of tobacco products rather than production. Such pretenses rely on the faulty assumption that the two are legally separable. Because long term health costs are taken into consideration when the FDA establishes its regulations and guidelines, such a rhetorical handstand rests on a pretty weak base. By the same logic behind these arguments, alcohol companies could be held legally liable for alcoholism and all of its ill-effects. Anheuser Busch, Coors and the rest of the industry could be made to help foot the bill for heart diseases, liver disease, drunk driving, violent crimes and a slew of other "effects" of alcohol distribution. For that matter, producers of unhealthy foods could be held liable for America's exceptional obesity and its costly medical effects.

Obviously, guns and cigarettes pose more direct threats to the public well being than Texas cattle ranchers and McDonald's, but the threats they pose are legally sanctioned. Certainly something is wrong when companies profit from the death and misery of others, but in this case the problem is legislative, not criminal. Clearly, the obvious flaws in our nation's gun and tobacco policies need to be addressed. But undermining the authority of elected legislatures is an unacceptable solution. Joshua S. Carson '02 lives in Thayer Hall.