The Second and 10th Amendments Duke It Out

The Senate is expected to vote this week on the Protection of Lawful Commerce in Arms Act, which would shield gun manufacturers from lawsuits that blame them for the damage caused by violent crime and other misuses of their products. As Walter Olson and Michael Krauss showed in their debate of this issue last year at PointofLaw.com, both supporters and opponents of the bill have credible constitutional arguments. (Also see the 2004 Cato paper on tort reform and federalism that Krauss co-authored with Robert Levy.) On the one hand, the lawsuits threaten to impose one state court's gun control preferences on the whole country, impinging on the Second Amendment and the powers of state legislatures. On the other hand, a federal law dictating outcomes in state civil courts threatens to undermine federalism.

I am increasingly persuaded that, as Krauss and Levy argue, the right approach is to wait and see whether the feared interstate consequences of the gun suits are likely to materialize, especially given the litigation's abysmal track record so far, which is due partly to state laws pre-empting such suits and partly to state courts that recognize groundless lawsuits when they see them. Dan Whiting, a spokesman for Sen. Larry Craig (R-Idaho), the chief sponsor of the federal pre-emption bill, told the Cybercast News Service "these frivolous lawsuits were threatening this small but important industry." At the same time, "Whiting noted that no court has ruled for the plaintiff" in any of the lawsuits by local governments. Private plaintiffs have been a bit more successful, obtaining a $550,000 settlement (not a jury award) from a gun maker last year in a case stemming from the 2002 D.C. sniper shootings. So far, however, the threat of nationwide restrictions on access to guns remains theoretical.