After the states managed to raise taxes and restrict advertising by suing Philip Morris and other cigarette makers, critics observed that such litigation is legislation in disguise. As such, they said, it undermines the separation of powers, short-circuits public debate, mocks the democratic process, and evades constitutional limits.
The Clinton administration has a carefully considered response to those objections: So what? In December, White House officials revealed plans for a lawsuit that would blame gun manufacturers for shootings in public housing projects. Officials did not pretend they were interested in justice.
Domestic policy adviser Bruce Reed explained that the suit was aimed not at winning compensation but at extracting concessions from the gun industry, including advertising limits, mandatory safety locks, and new restrictions on sales. "If the Republican-controlled Congress wants to block sensible gun control," White House spokesman Joe Lockhart told The Washington Times, "we're going to find a way to [enact] it."
Maybe not. The announcement of the federal suit came just as judges were dismissing similar cases brought by local governments.
Last October, an Ohio judge ruled that Cincinnati, one of about 30 cities and counties pursuing gun lawsuits, had failed to state a cause of action. He rebuked the city for asking the court to "substitute its judgment for that of the legislature."
The day after news of the federal suit broke, a Connecticut judge rejected Bridgeport's claim that gun makers are guilty of creating a "public nuisance" because some of their products are used in crimes and suicides. "The plaintiffs have no statutory or common law basis to recoup their expenditures," he found. The following week, a Florida judge dismissed Miami-Dade County's suit on similar grounds.
Miami Mayor Alex Penelas was undeterred. "Any time you are dealing with cutting-edge legislation," he told the Associated Press, "this is bound to happen." Did he mean "litigation"? You decide.