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.