Time to Bite the Bullet? How an Emboldened FDA Could Take Aim at the Firearms Industry

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 Article 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.