July 21, 2004

Round 2 of our featured discussion between our editor Walter Olson and GMU professor Michael Krauss is now up. Check it out here.

A recap so far as I see it:

Walter argues that (a) the gun lawsuits against manufacturers for non-defective guns are unsound; (b) Congressional legislation to stop such lawsuits is consistent with federalist principles since state courts are intruding on other states' policy choices by suing manufacturers for guns sold legally in other states; and (c) although largely unsuccessful to date, the gun lawsuits are already significantly reducing gun owners' constitutional rights to bear arms.

Michael's rejoinder is essentially that (a) the Second Amendment right to bear arms is not in "clear and present danger" because of the gun suits, and should not be invoked to authorize Congressional action until it is; (b) the Constitution does not forbid bad policy outcomes but rather permits them, and the federalist constitutional design specifically contemplates competing policies among the state and federal governments; and (c) a better approach to reform, which would leave competing state tort regimes intact, would be to adopt federal procedural changes (e.g., eliminating the "complete" diversity requirement and instituting federal choice of law and long-arm jurisdiction rules) that would prevent one state's courts from taxing out-of-state defendants through its own "dirty bathwater" tort system.

If my characterizations of either argument are off-base, apologies. I encourage all readers to check out the entries, in their entireties, for themselves.