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July 20, 2004

Smoking Guns and Federalism

By Michael Krauss

First, Wally, I'm delighted to join you in breaking the ice. This format is new for me, and I hope I master the e-intricacies involved in embedding links, etc. My apologies to readers for any technical screw-ups I make.

Let me reiterate first where I think we agree 100%:

1. The city-county-state suits against firearm manufacturers, for damages these governments suffered when they had to pay money (police overtime, cleanup of blood from streets, payments to hospitals for uninsured gunshot victims) when a bad guy used a gun to shoot someone, are totally bogus. They have nothing at all to do with the Common Law of Torts in any of the 50 states.

2. Why are they bogus? I detail the answer in my monograph, Fire and Smoke: Government Lawsuits and the Rule of Law (Independent Institute). In brief, they are bogus because they make a mockery of Proximate Causation doctrine (the manufacture and marketing of the gun was not the proximate cause of the injury; the bad guy's free choice to misuse the product was the Proximate Cause) and because Governments do not suffer direct damages, but only indirect costs which they themselves choose to bear. For each and both of these reasons, the suits must fail -- and, mostly, they have indeed failed.

3. But of course, like sharky plaintiffs lawyers, these suits were not meant to win -- they were in large part meant to bleed the product manufacturers so dry in lawyers' costs that they would "settle," as tobacco manufacturers have done. Bogus suits filed to induce settlements are the best argument in the world for a "loser pays rule" -- wanna talk about that in future installments of this conversation?

Since we agree, I think, on 1-3, why do I oppose federal intervention based on the Commerce Clause? The short answer is the same one I give to my law students when they ask me why "bad" laws are not ipso facto unconstitutional. The Constitution is not a mandate for the courts to "perfect" society. Nor is it a mandate for the federal legislative branch to repair all bad laws in the states.

Thus, a state can and should and does, in my opinion, have the right to adopt legislation (or to create state case law) that is stupid, that is inefficient, that is even immoral, so long as the state internalizes the costs of its behavior. My state, for instance, should have the right to force everyone to work a maximum of 30 hours per week, as those contemptuous folks in France do. The state would lose tax revenue, its citizens would see their real estate values drop, and presumably there would be political pressure on my state to change its labor laws. I'm not one of those (like my good friends at the Institute for Justice, for example) who believe the Constitution has set up the libertarian state, and that federal courts and the federal government have the right and the duty to impose laissez-faire on the states. Analogously, the federal government does not have the right to impose tort sanity on the states, unless those states violate the federal constitution by their insanity. Tort sanity simply doesn't justify destroying the dual sovereignty that underlies our republican system of government.

So, for instance, the states can hold gun-makers liable for the cost of crimes committed with their guns, if they are willing to destroy the foundations of their tort law, and to open a Pandora's box that will swallow most all of products liability. If, however, a state holds liable a gun-maker that does not even market in that state (the District of Columbia has adopted legislation to this effect, though it has wisely refrained from trying to enforce it so far...), then of course such legislation would be an effort to externalize costs onto others, and this legislation could be properly repressed by federal law under what is known (sorry for the legalese) as the "dormant" part of the Commerce Clause. In addition, if a state's distortions of the Common law go so far as to deprive citizens of their Constitutional right to bear arms, then federal intervention is fully merited under the Fourteenth amendment, which empowers Washington to prevent states from violating our fundamental rights.

But the state gun suits, in most part, don't go this far yet at all. State courts have taken care of business, for the most part, by throwing out these ridiculous suits. Apart from DC (and again, the District has not yet tried to enforce its law), no state has tried to hold liable a manufacturer that does not do business there. And no states' suits have, thus far, so affected the availability of firearms as to create a Second Amendment problem. State sovereignty must not be tampered with lightly, and there is as of yet no clear and present danger of constitutional breach. There is merely a little evidence of state stupidity, and states have the constitutional right to be stupid.

Finally, a note about joint publishing efforts. As I'm sure many readers know, joint writing inevitably requires compromise. My views here are unencumbered by any compromise -- I think it is clearly the case that if a state's liability rules produced shortages of firearms for sale in that state, federal intervention would be authorized under the Fourteenth Amendment. This would not be the case for tort-induced availability issues in, say, obstetrical services, for the simple reason that there is a constitutional right to keep and bear arms, but no constitutional right to hire an obstetrician.

As a teaser, let me close by saying that I think federal choice of law legislation, which WOULD be constitutional, would go far to making sure states did not externalize their havoc.

Ball back in your camp, Wally.


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