The NRA vs. the Constitution

How a misguided defense of gun rights undermines a free society


The most commonly heard complaint about the National Rifle Association is that it's run by extremists who are militantly opposed to all forms of gun control and do not represent the views of the average gun owner. The second most common complaint is that the NRA is a namby-pamby, inside-the-Beltway lobby that readily compromises principle for political advantage.

There is some truth to both of these seemingly contradictory portraits. The NRA's single-minded determination to defend its own understanding of the right to keep and bear arms can lead it to chip away at other pillars of a free society.

Consider the Protection of Lawful Commerce in Arms Act, which has been one of the NRA's top priorities for several years and was recently approved by the Senate. This bill, which the House is expected to approve in the fall and President Bush has promised to sign, protects gun manufacturers and distributors from lawsuits that blame them for the harm caused by people who use firearms to commit crimes.

The NRA is correct that such lawsuits represent an unjust and dangerous expansion of tort law, potentially threatening any industry that sells products used by criminals. It is also correct that gun litigation based on "public nuisance" or "negligent distribution" theories, if successful, could bankrupt the industry, which would make it difficult for Americans to exercise their Second Amendment rights.

To avoid the risk of ruinous judgments, gun makers might agree to new restrictions on how they advertise, promote, and sell their products, or such restrictions could be imposed by courts after trial. In that event, one state court could in effect set gun control policy for the entire country, infringing on Second Amendment rights and circumventing state legislatures and Congress, contrary to the system of government established by the Constitution.

Yet these threats to constitutional rights and principles, which have to be weighed against the clear intrusion on state sovereignty represented by the federalization of tort law, remain almost entirely theoretical. Not one of the newfangled gun lawsuits has resulted in a jury award so far, and 33 states have passed laws pre-empting them. Of more than 30 gun lawsuits filed by state and local governments since 1998, all but a few have been nullified by such laws or dismissed by state courts that recognized them as groundless.

Given this track record, the strongest justification the NRA can offer for immediate congressional intervention is that the lawsuits are costing a small industry hundreds of millions of dollars in legal expenses it can ill afford. That may be an argument for demanding that the Brady Center to Prevent Gun Violence, which has helped file most of these suits, reimburse the targets of their frivolous litigation. But it's not a compelling argument for a law that violates the separation of powers between the states and the federal government by dictating outcomes in state civil actions.

In the case of lawsuit pre-emption, the NRA at least has some plausible, though ultimately unconvincing, constitutional arguments on its side. Not so with its recently announced boycott of ConocoPhillips.

The NRA launched the boycott in retaliation for the energy company's participation in a federal lawsuit challenging a new Oklahoma law that prohibits companies from banning guns in vehicles parked on their property. The Oklahoma law was passed in response to the firing of 12 employees at a Weyerhaeuser paper mill after guns were discovered in their cars during a sweep with drug-sniffing dogs.

If the NRA were simply objecting to ConocoPhillips' policy of barring guns from its parking lots, I would have no problem with the boycott. Instead, the NRA is objecting to the company's defense of its right to determine the gun policy on its own property. "We're going to make ConocoPhillips the example of what happens when a corporation takes away your Second Amendment rights," declares NRA Executive Vice President Wayne LaPierre.

That statement makes no sense, since the Second Amendment is a restraint on government. The Second Amendment does not mean a private employer has to welcome guns in its parking lot, any more than the First Amendment means I have a right to give speeches in your living room.

LaPierre insists that "you can't say you support Second Amendment freedoms, then turn around and support anti-Second Amendment companies." I think you can, if you support property rights and understand what the Second Amendment really means.