Federalist Case: Is Gun Lawsuit Pre-emption Unconstitutional?

As published at Reason.com

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, 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.

Jacob Sullum is a senior editor at Reason and the author of Saying Yes: In Defense of Drug Use (Tarcher/Putnam, May 2003).