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Is gun lawsuit pre-emption unconstitutional?

Discussion in 'Legal' started by Drizzt, Apr 18, 2003.

  1. Drizzt

    Drizzt Well-Known Member

    Is gun lawsuit pre-emption unconstitutional?

    Jacob Sullum
    April 18, 2003

    The gun control movement, which pushes national restrictions on firearms at every opportunity, has discovered the virtues of federalism. Testifying before a House subcommittee last year, Michael Barnes, president of the Brady Center to Prevent Gun Violence, averred, "The notion that the common law of every state can be radically altered by a special interest bill in Washington should disturb even those members who support the gun lobby, but profess to a belief in federalism."

    Barnes was talking about the Protection of Lawful Commerce in Arms Act, which the House recently passed by a bipartisan vote of 285 to 140. The bill, now being considered by the Senate, would protect gun manufacturers and distributors from lawsuits that seek to hold them responsible for the misuse of their products. Gun makers would still be liable for defective products, and gun dealers could still be sued if they broke the law or negligently sold a weapon when they knew or should have known that it was apt to be used in a crime.

    Barnes clearly is one of those people who only "profess to a belief in federalism" when it's convenient. As it happens, two of the most important victories for federalism in recent years were Supreme Court decisions that overturned gun control measures.

    In 1995 the Court concluded that Congress did not have authority under the Commerce Clause to ban possession of a gun within 1,000 feet of a school. In 1997 the Court ruled that Congress could not commandeer local and state authorities to perform a federally mandated background check.

    Somehow, I doubt that Barnes cheered either decision. But even if his concern for the proper balance between state and national power is insincere, he could still be right that conservatives are supporting a bill that violates their avowed federalist principles.

    It would not be the first time. In areas such as assisted suicide, medical marijuana, and "partial birth" abortion, conservatives have not just gone along with but actively pursued measures that impose the federal government's policy concerning local matters on recalcitrant states.

    And on the face of it, Barnes and his fellow activists seem to have a point. The Protection of Lawful Commerce in Arms Act would, after all, put a definitive end to more than two dozen lawsuits in state courts, dictating the outcome to local judges and juries, and forbid similar lawsuits in the future.

    But as Manhattan Institute senior fellow Walter Olson, author of The Rule of Lawyers <buy book> <read book review>, pointed out in congressional testimony earlier this month, the lawsuits themselves pose a threat to the balance of powers envisioned by the Framers. "By design and by necessity," he observed, "the antigun litigation campaign is interstate in its anticipated effects." In seeking to set national gun control policy through state courts, the lawsuits usurp the authority of state legislatures and Congress.

    Supporters of the lawsuits make no bones about what they're trying to accomplish.

    "Litigation is a powerful tool to promote the public's health -- especially when other avenues are stymied," writes Julie Samia Mair of the Johns Hopkins Center for Gun Policy and Research. "An industry, wanting to avoid paying an award or engaging in costly litigation, may voluntarily make its products safer and/or change the way it markets or distributes them."

    Notice that it doesn't matter whether the cases have any merit. Judges so far have dismissed most of the gun lawsuits by local governments, but the cost of fighting them, coupled with the possibility of one big judgment, could be enough to persuade the industry to make concessions that would have the same impact as legislation.

    Cigarette billboards are a thing of the past not because of a statutory ban (which would have violated the First Amendment) but because eliminating outdoor advertising was part of the price for settling state lawsuits against the tobacco companies. Gun makers, whose financial resources are puny compared to the tobacco industry's, are especially vulnerable to that sort of pressure.

    Hence a lawsuit brought in New Jersey can affect the availability of guns in Virginia through a settlement or, if the plaintiffs should manage to win, an injunction. This nationwide impact, an explicit goal of the lawsuits, is a strong justification for congressional intervention, especially given the Second Amendment rights at stake.

    The right to keep and bear arms, of course, is one part of the Constitution that Michael Barnes will never even pretend to like.


    I have to agree that this is one of the first LEGITIMATE uses of the Interstate Commerce clause that I have seen.
  2. El Tejon

    El Tejon Well-Known Member

    :rolleyes: So, now the 10th Amendment becomes important. The BoR is nothing but GrrrAnimals to the Left.

    BTW, no, it is not.
  3. MonkeyMan

    MonkeyMan Well-Known Member

    Pardon me, Mister Barnes, but could you explain the difference between this "special interest bill" and GCA 68 and all of the other "gun control" legislation?

    It would appear as if the anti's don't approve of us using their own tactics against them.

    Boo hoo hoo.
  4. Waitone

    Waitone Well-Known Member

    At some point our society will reach a concensus as to the danger to life, liberty, and property posed by a small group of virtually unknown and unaccountable officers of the court.

    The economic damage inflicted is something we can not afford and ought not tolerate.

    Stopping lawsuits against gun manufacturers is a proximate solution. The ultimate solution will be to disinfranchise and render powerless a rogue group of attorneys.

    No, I am not attacking all attorneys. I am attacking the very small group responsible for the galactic scale suits we've all endured.

    Edited to correct spelling.
    Last edited: Apr 18, 2003
  5. tyme

    tyme Well-Known Member

    Interstate Commerce Clause? Gun lawsuit peemption seems like a reasonable use of it to me, seeing as how the target, the gun industry, is actually involved in commerce and is very much a multi-state market, very much unlike thugs with guns at schools or people who happen to own a firearm that's crossed state lines in the past.
  6. buzz_knox

    buzz_knox Well-Known Member

    If we follow the Supreme Court's decisons on the Commerce Clause (good or bad) then pre-emption is constitutional. Lopez can be distinguished on the grounds that criminal use of a firearm not involved in interstate commerce isn't a federal matter. However, use of the legal system (whether state or federal) to influence a company located in another state or a national industry as a whole would have a definite impact on interstate commerce.

    If you follow the original intent of the Commerce Clause, the feds wouldn't be involved in firearms matters at all, with the exception of federal property. However, given that the full faith and credit clause would require enforcing judgments obtained in repressive states against companies based elsewhere, interstate commerce could still be implicated and preemption would be at least tenable.
  7. Ledbetter

    Ledbetter Well-Known Member


    "The notion that the common law of every state can be radically altered by a special interest bill in Washington. . . ."

    What a maroon. Sounds like a desperate argument. What state's laws haven't been affected by congressional legislation?
  8. Sprout

    Sprout Well-Known Member

    I agree with Buzz-knox, to a point. Outrageous tort liability in one state does hinder interstate commerce.

    However, it's a tough call. Giving the Feds the power to limit tort liability, almost be definition, gives them the power to impose even more stringent liability. After all, if the fact that guns are sold in interstate commerce gives federal jurisdiction, what limits that power to them using that power how WE like it.

    I'd actually be more comfortable on Second Amendment grounds; not that THAT is going to happen.

    Just my two shares of Enron.
  9. El Tejon

    El Tejon Well-Known Member

    I'm with Sprout. Just do this preempt on § 5 of the 14th Amendment. It would drive them nuts!:cool:
  10. Pendragon

    Pendragon Well-Known Member

    I am not sure the 2ndA - which recognizes YOUR right to KABA could be used to prevent someone from suing some gun makers into submission. Even with our interpretation, that is a stretch.

    The commerce clause was intended to prevent states from engaging in tax, tarrif and commerce wars. The founders were concerned that each state would set up tarrifs as barriers to harm commerce in other states - they were concerned that this would harm the free flow of goods and ideas and hold back the economy of the whole country.

    This is EXACTLY what the antis are trying to do with these suits. Their motives are not based on loyalty to their home state, but rather idealogical loyalty. They seek to conduct actions that will destroy the businesses of diverse states.

    Imagine if the conflict was centralized - Chicago, New York and Baltimore decide they do not like guns - they want to destroy the gun industry - so they file suit after suit against gun makers in CT, OR and TX - with the intent of putting them out of business.

    This is more or less what is going on and it is why the commerce clause exists.
  11. El Tejon

    El Tejon Well-Known Member

    Pen, no, that's exactly what Congress did in the first CRA and the 14th Amendment: prevent Johnny Banjo from disarming the freedmen by erecting economic barriers upon their purchase.
  12. Sprout

    Sprout Well-Known Member

    Thanks Tejon!


    I agree, it isn't the strongest argument, but it isn't unreasonable either. The state action is in enforcing the suit, just like it is unconstitutional for courts to enforce racially restrictive covenants on land.

    Hell, the Supremes just decided that excessive punitive damages violated the Due Process Clause. See STATE FARM MUTUAL AUTO. v. CAMPBELL, CURTIS, ET UX.. And I think that the Second Amendment argument is stronger than that.

    I just think that Expanding the ICC is very, very dangerous. I'd rather rather base something on the BoR tha the catch-all ICC.

    You're right, though. It's probably not a winner. And I agree, as commerce clause arguments go, this is a pretty good one. I just don't like playing with fire, if you know what I mean.
  13. Standing Wolf

    Standing Wolf Member in memoriam

    Don't you just hate it when you get stymied by the Constitution and voters?
  14. ahadams

    ahadams Well-Known Member

    just another example of how desperate the anti-s are getting these days...
  15. Giant

    Giant Well-Known Member

    NO! Criminal use of a legal product such as a firearm is not grounds for a law suit. Nearly all law suits against the gun industry and gun dealers are frivolous, with the express purpose of driving those in the gun industry into bankruptcy.

    If the trial lawyers were allowed to apply the same standard to the automobile industry, or the makers of bicycles those industries would not be able to stay in business.

    All that the gun industry has asked for is fair treatment in relation to their being able to legally sell a non defective product without being sued because a criminal commited a crime with the product. In addition the gun industry is asking that criminals be held accountable for the crimes they commit...

    The anti gunners and trial lawyers seem to want special laws that would punish anyone not in agreement with their far far to the left (communist) idealogy. That is wrong under the Constitution, therefore congress instead of making unnecessary law on the matter should merely rely on the Constitution. However, the matter has not been accepted by the supremes and so congress is attempting to do the job of the supremes, while the supremes attempt to do the job of the congress.

  16. Pendragon

    Pendragon Well-Known Member

    Agreed Giant.

    However, if the lawsuits were allowed to proceed and were successful, the tactic could concieveably be used "against" any product or service that is used in the comission of a crime.

    Automobiles are now defective because they cannot determine the fitness of the driver. We need to sue to get smart cars...

    Zip-Loc baggies are a threat to the community because they make little baggies knowing the only real use for such baggies is to package and sell illegal narcotics...

    Nike deliberately markets shoes that give the user enhanced agility that is really only needed by people who want to evade the police...

    The commerce clause was designed to protect business from politically motivated predation. Thats what the proposed law is doing.

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