April 25, 2005

David Hardy at Arms and the Law offers some further thoughts on how portions of today's anti-gun litigation may violate the so-called Dormant Commerce Clause, a topic previously broached by, among others, Dan McLaughlin and Profs. Sebok and Lytton (see Overlawyered posts here, here). (Under the "Dormant" Commerce Clause doctrine, courts strike down many state regulations that interfere with interstate commerce whether or not they tend to get in the way of an existing federal regulatory scheme.) Writes Hardy:

[Some pending gun suits] allege that a manufacturer should be liable because they sold guns to State A, where they are legal, and should have known that some would flow from there to State B, where they are more strictly controlled....

As a thought experiment, let's flip the setting around. State A is the place of business of a gun manufacturer, and it enacts a law imposing a civil penalty of $100,000 plus attorney fees for filing of a lawsuit (anywhere) seeking to impose liability on a manufacturer within its borders, for a lawful gun transfer. Or its courts evolve a comparable doctrine: such a suit is an abuse of process, rendering plaintiff liable for actual and punitive damages.

One would hear squawking from the other states in such a case, I think.