Gun Control by the Courts

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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.

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  1. It seems to me that we aren’t just looking at a choice of untrammeled state sovereignty v. limitations on state sovereignty by the feds. We are really looking at whether any given state’s sovereignty will be restricted de jure by the feds or de facto by the other states.

    Personally, I would rather see a limited federal intrusion on a narrow range of litigation rights, by a government that is at least somewhat accountable to me, than piecemeal, effective restrictions on the right to keep and bear arms by governments that are not accountable to me at all.

  2. These type lawsuits are another good reason to adopt a loser-pays court costs type legal system as is the practice in other countries.

    That would cut down on these back-door social policy type lawsuits as well as a bunch of other worthless, speculative lawsuits that clog up the court system.

    It would also pull the rug out from under scumbag trial lawyers that initiate baseless lawsuits against corporatons to get a quick out of court settlement out of the company because it would be cheaper than going to trial. That is nothing more than a variation on the old “protection” racket that gansgters have done for years.

  3. It seems to me that we aren’t just looking at a choice of untrammeled state sovereignty v. limitations on state sovereignty by the feds. We are really looking at whether any given state’s sovereignty will be restricted de jure by the feds or de facto by the other states.

    Personally, I would rather see a limited federal intrusion on a narrow range of litigation rights, by a government that is at least somewhat accountable to me, than piecemeal, effective restrictions on the right to keep and bear arms by governments that are not accountable to me at all.

  4. These type lawsuits are another good reason to adopt a loser-pays court costs type legal system as is the practice in other countries.

    That would cut down on these back-door social policy type lawsuits as well as a bunch of other worthless, speculative lawsuits that clog up the court system.

    It would also pull the rug out from under scumbag trial lawyers that initiate baseless lawsuits against corporatons to get a quick out of court settlement out of the company because it would be cheaper than going to trial. That is nothing more than a variation on the old “protection” racket that gansgters have done for years.

  5. Quite frankly, it’s this issue right here that keeps me from jumping headfirst into supporting the Kerry/Edwards campaign.

    The Clinton HUD lawsuits would have nothing on a John Edwards legal blitzkrieg.

  6. Quite frankly, it’s this issue right here that keeps me from jumping headfirst into supporting the Kerry/Edwards campaign.

    The Clinton HUD lawsuits would have nothing on a John Edwards legal blitzkrieg.

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