Gun Control by the Courts

The online debate between Wally Olson and Michael Krauss about federal pre-emption of gun lawsuits seems to be moving toward an argument about timing.

Olson argues that "the aim [of these suits] is to use the courts of one or a few states to obtain controls which will shut down or constrict gun availability in other states which were never consulted on the matter -- all without the need to win any sort of up-or-down vote in Congress. This can?t possibly be the sort of thing the Framers envisioned as appropriate when they devised the Constitution."

Krauss responds that "the federal government does not have the right to impose tort sanity on the states, unless those states violate the federal constitution by their insanity. Tort sanity simply doesn't justify destroying the dual sovereignty that underlies our republican system of government."

Krauss concedes, however, that if "a state holds liable a gun-maker that does not even market in that state…such legislation would be an effort to externalize costs onto others, and this legislation could be properly repressed by federal law under…the 'dormant' part of the Commerce Clause. In addition, if a state's distortions of the Common law go so far as to deprive citizens of their Constitutional right to bear arms, then federal intervention is fully merited under the Fourteenth amendment, which empowers Washington to prevent states from violating our fundamental rights."

Krauss emphasizes that "the state gun suits, in most part, don't go this far yet at all." Olson, by contrast, suggests that it's wiser for Congress to forestall such dangers by stepping in before an interstate impact is felt and before Americans are disarmed.