Is Gun Lawsuit Pre-Emption Constitutional?


The House Judiciary Committee is considering the Protection of Lawful Commerce in Arms Act, which would put an end to lawsuits that try to hold gun makers and distributors responsible for crimes committed with the weapons they sell. These suits, which seek to impose restrictions on gun distribution through the courts, clearly pose a threat to the Second Amendment and the balance of powers. But does the bill aimed at stopping them also raise constitutional questions?

Gun control advocates argue that Congress should not be interfering with cases brought in state courts and that conservatives who support the bill are betraying their federalist principles. Reason Contributing Editor Walter Olson, author of The Rule of Lawyers, offered a rejoinder in congressional testimony last week:

By design and by necessity, the antigun litigation campaign is interstate in its anticipated effects. Its suits in state courts demand damages from out-of-state defendants on a scale certain to impair the workings of interstate commerce, as well as the assessment of punitive damages against gun-industry actors based on their nationwide (as opposed to intrastate) courses of conduct. Indeed, gun lawsuits have repeatedly asserted a right to apply the law of one state or jurisdiction (such as New York) to gun sales which took place in other jurisdictions (such as South Carolina and Virginia), on the grounds that the firearms in question were later smuggled or otherwise taken into the state in which the lawsuit is going forward. The intended and expected effect is to identify isolated state courts that are amenable to the advocates' arguments, and then project the power of those courts so as to restrict gun freedoms in all 50 states, including states that would prefer to preserve for their citizens relatively liberal access to the means of self-defense. It is important that proponents of the gun-suit campaign not be allowed to hide behind the skirts of federalism. They are not, in fact, defending states' "right to govern themselves", but instead attempting to use litigation in the courts of some states to govern the citizens of other states.


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  1. This whole issue seems badly bent out of shape. How is it that an issue to do gun control (public safety?)has been cast as a matter of inter-state commerce?

    On the same score, it seems that the feds have no problem interfering with local law-making when it comes to drugs (cf. the california medical marijuana spat).

    In any event, both parties in this fight have tried to win their cases at the local level, where friendly and malleable courts may be found.

    If the feds are worried that the states are liable to buckle under the pressure of a special interest, they should step in with a positive move, not just a defensive measure as proposed.

  2. I believe its fairly clear that conservatives don’t give a shit about federalism when it comes to their pet issues (SEE Oregon’s Right to Die Statute).

  3. They should have just stuck a few lines protecting gun manufacturers in the Homeland Security Act, is what they shoulda done.

  4. Congress shouldn’t be passing any laws granting immunity to anyone. Let the courts figure out who bears what responsibility — that’s they’re job. If we don’t trust the courts, then we should change our justice system instead of continuing to manufacture exceptions for industries that tend to donate a lot of money to the people writing these laws.

  5. Gary, that’s a wonderful and informed comment. You’ll have to bring that up for discussion at the next Federalist Society meeting.

  6. Gun lawsuits have a nasty habit of finding liability under the laws of State X for products manufactured and sold in accordance with the laws of State Y. This necessarily impedes not only interstate commerce, but also intrastate commerce within State Y. Thus, Congress would be well within its rightful powers under the commerce clause to put an end to such suits. Even if Congress did nothing, courts would do well to throw out gun lawsuits under the “dormant commerce clause” (a presumption that state regulation of interstate commerce is “unconstitutional” unless explicitly authorized by Congress).

  7. There are lots of state regulations, laws, etc. that deal with out of state products which are perfectly constitutional – its not like the dormant commerce clause concept defeats all such regulations, etc. in other words. Also the law in the area of how far the Commerce Clause allows the Federal Government to reach is very muddled (if you don’t believe me, take Con Law), so whether the Federal Statute would survive a challenge is not certain, especially in light of recent commerce clause decisions of the Rhenquist court, which have tended to protect “traditional” state functions and interests.

    People understand the difference between the dormant commerce clause line of cases, and those cases dealing with the reach of the federal government under commerce clause, right? The first refers to how far the states can reach into interstate commerce (and there are several tests for this) where the federal government has not yet regulated, or only partly regulated, while the latter deals with how far the commerce clause allows the federal government to reach in the regulation of activities related to interstate commerce (i.e., does the interstate trade in guns allow the government to create criminal laws concerning gun possession on the campus of a state highschools, or does the commerce clause allow the federal government to regulate the service policies of hotels, restaurants, etc. (for example, whether they can segregate or otherwise discriminate against certain classes of customers)).

    BTW, how many of these suits have been successful, and are they a really a threat to the Second Amendment, or do they simply hurt the bottom line of gun manufacturers?

  8. They are absolutely a threat to the second amendment. If no one makes firearms because of liability issues resulting from frivolous lawsuits brought in liberal state courts it will essentially give the anti-gun crowd exactly what they want, and have been unable to get through the legislative process; a total ban on civilian sales. I think Congress is perfectly within its powers under the constitution to restrain lawsuits against manufacturers and dealers who are licensed to sell arms in the stream of interstate commerce.

  9. “BTW, how many of these suits have been successful, and are they a really a threat to the Second Amendment, or do they simply hurt the bottom line of gun manufacturers?”

    They were never intended to be “successful” on the merits; their purpose is to bankrupt a lawful industry through their sheer volume. I’m not sure why you think it is possible to do this, without also impacting individuals’ right to purchase their product.

  10. Sebastian & Xlrg,

    Basically all you’ve written so far are some rather paranoid predictions. What evidence do you have that the sky is falling? I expect to see evidence of claims that the Earth is about to fall into environmental chaos from environmentalists, and I have the same expectation of you when you make claims. Oh, and Sebastian, thanks for those well reasoned thoughts on the nature of the Federal Government’s commerce clause powers. *chuckle*

  11. Gary seems to have a rather odd definition of “paranoid.” I always thought the word applied to those who unreasonably believed that someone was out to get them, not to those who took actual threats seriously. Is HCI’s rhetoric so over-the top that only a “paranoid” person would take it at face value? Perhaps so, but I’m not interested in taking that chance just to preserve someone else’s warped notion of “federalism.”

  12. Gary, are you suggesting the goal of “anti-gunners” is someting other than to make it financially imposible to sell guns to the law abiding Americans who want to buy them?

    Here’s their website. Tell me they just want “reasonable gun laws”…

    Check out this site:

    Whether this is really from HCI’s email or not is irrelevant (don’t know if its real – don’t care) – it IS the way you chip away at a persons liberties – one piece at a time. Look at the items on the list from 1993. How many tactics do you recognize as having been tried in some form or another. I live in Illinois where our governor would repeal the 2nd amendment if he could get away with it. Some aspects of this list are in Illinois SB 1195 right now. This is NOT paranoia!

    Illinois SB 1195:

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