Citation

Noah L. SSRN eLibrary 2021.

Copyright

(Copyright © 2021, Social Science Electronic Publishing)

DOI

10.2139/ssrn.3726680

PMID

unavailable

Abstract

Firearms continue to cause tremendous losses in the United States, prompting increasingly frustrated calls for a public health response to this endemic problem. Although Congress has legislated repeatedly on the issue over the last century, it has not managed to do anything remotely comprehensive in the aggregate. This paper offers a radical new approach that has gone entirely unnoticed. Much as it tried to do a quarter of a century ago in asserting jurisdiction over tobacco products, the U.S. Food and Drug Administration (FDA) could try to use its "device" authority to rein in companies that manufacture firearms and accessories with far too little oversight at present. "Device" jurisdiction brings with it a wide range of powers that would give the agency tremendous flexibility in designing various ways of making guns and ammunition less hazardous to the community. Such an initiative would confront serious political hurdles, of course, to say nothing of an undoubtedly skeptical response by the federal judiciary on both statutory and constitutional grounds. Nonetheless, as happened with the FDA's ultimately unsuccessful tobacco product rulemaking, simply making the effort might generate some much needed momentum for seriously addressing this scourge.

Connecticut Law Review, Vol. 53, No. 3, 2021

Language: en

Keywords

administrative law; ammunition; Chevron deference; device regulation; FDA; gun control; public health; Second Amendment