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September 07, 2004


Gun pre-emption: the Sullivan parallel

Readers who followed my discussion with Michael Krauss in July on federalism and gun-suit pre-emption may recall that I offered an analogy to illustrate one constitutional justification for such pre-emption: just as in New York Times v. Sullivan the U.S. Supreme Court pre-empted some libel suits brought under state common law in order to avoid a chilling effect on the First Amendment, so Congress is entitled to pre-empt some product liability suits brought under state common law in order to avoid a chilling effect on the Second Amendment. When raising the point I was dimly aware that this parallel had occurred to others besides myself, but I didn't realize that two noted scholars of firearms law, David B. Kopel and Richard E. Gardiner, had written a whole article exploring it. It's available online and is entitled "The Sullivan Principles: Protecting the Second Amendment from Civil Abuse".

Also: Stephen P. Halbrook, another commentator whose work we've admired on Second Amendment matters, has an article in the Chapman Law Review spring issue entitled "Suing the Firearms Industry: A Case for Federal Reform?", which is online at his site in PDF form.

Posted by Walter Olson at 11:25 AM | TrackBack (1)



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