Chapter 2 locates the history of firearms litigation over the past sixty years as a progression through four distinction waves, in the context of the arc of mass tort litigation. The chapter surveys initial gun litigation in the 1960s–1970s based on conventional tort theories sounding in negligence and product defect, noting that virtually all these lawsuits failed. During the 1980s and 1990s, firearms litigation followed the mass tort pattern of attempted aggregation of claims, but courts still did not allow these suits to progress. The second wave of firearms litigation occurred in the early twentieth century, following the 1998 tobacco Master Settlement Agreement. This new litigation model was based on governmental entity lawsuits seeking redress for communities harmed by gun violence. The third wave of gun litigation occurred after Congressional enactment of PLCAA in 2005. Plaintiffs in these PLCAA suits sought relief under PLCAA’s six exceptions. These suits also largely failed to gain traction. And the fourth and current wave of firearms litigation post-2019, after the successful Sandy Hook litigation, is being pursued by state attorneys general under new, targeted consumer protection and public nuisance accountability statutes.

Chapter 3 introduces discussion of the 1998 Tobacco Master Settlement Agreement and the role this revolutionary agreement between all fifty states (through their states attorneys general) accomplished with the tobacco company defendants. The chapter places the MSA in the evolutionary context of twentieth-century mass tort litigation and uses this example to show that even the most difficult industry defendants may be brought to account through model litigation. The chapter explores the parallelisms between the history of tobacco litigation, opioid litigation, and the lessons that the resolution of these mass torts have for the prospects of resolving firearms litigation in a similar fashion. The chapter concludes with a discussion of the lessons to be learned from the tobacco litigation for firearms industry accountability, focusing on the valuable portions of the Tobacco Master Settlement Agreement and its most useful remedies. The discussion acknowledges the criticisms of the implementation of the MSA, but nonetheless concludes that there is much to appreciate from the MSA as a model approach to holding the firearms industry accountable for the harms it contributes to through the manufacture, marketing, and sale of its products.

Chapter 2 traces the historical development of mass tort litigation from the 1970s through the 1990s, documenting plaintiffs attorneys initial unsuccessful attempts in the 1990s to extend public nuisance theory to mass tort products and marketing litigation. During this initial foray into public nuisance theory, courts instead universally defaulted to a narrow view of nuisance grounded in property law. In cases involving tobacoo, asbestos, lead paint, and gun litigation courts declined to accept plaintiffs public nusiance claims, refusing invitations to expand a claim for public nuisance beyond its grounding in real property concepts. Courts contended that these mass tort harms sounded in causes of action for traditional products liability, not public nuisance, and that public nuisance law had never been applied to products cases. Courts noted the deleterious effects of accepting an expanded concept of public nuisance, which would allow any plaintiff to describe a harm from a lawful product as producing a public nuisance. Such a concept would invite unlimited liability for manufacturers of legal products.