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July 20, 2004

None of Congress's business?

By Walter Olson

In launching what’s intended as a regular monthly feature at Point of Law, I had in mind adapting a format perfected over at Slate, often under the heading “Breakfast Table”. It allows a couple of writers to bat things back and forth in an informal way over the course of three or four days, reacting in turn to each other’s posts, the way Walter Dellinger and Dahlia Lithwick do here (discussing the Supreme Court’s latest decisions) or David Brooks and Susan Estrich here, or Anthony Lewis and Stuart Taylor Jr. here. As someone who’s working to build up a new website, I can appreciate the way this format stimulates traffic (once readers get drawn in, they may want to check back often to see whether a new response is up). And the exchanges at Slate have managed to elicit an almost eerily high level of civility from the participants, even from those who seldom show the best of manners in their writing elsewhere.

I doubt that civility will be a problem for the two of us here, if only because the topics we can expect to contest, important though they may be, are gently lapped on all sides by a sea of agreement. To begin with, we agree in decrying the ongoing legal assault on gun makers; if anything, you’ve been more outspoken than I have about it. In your articles with Cato's Robert Levy, you’ve called the gun-suit campaign "a parody of tort law" and written that "most lawsuits against firearms manufacturers for anything other than manufacturing defects are barely disguised extortion attempts." (Your language reflects the fact that in relatively rare instances, a gun blows up in its owner’s face or otherwise behaves as no sane user could have intended. Such cases are a different kettle of fish legally from the newer suits against the maker of a lawfully sold gun which works exactly as expected mechanically but was used later in a crime. Some anti-gun activists and press outlets have claimed that the federal pre-emption bill would give gunmakers a complete free pass from being sued under any and all theories, which is baldly untrue.)

So far so good. But while we agree in condemning the campaign to make gunmakers pay for criminal misuse of their products, we disagree on what can be properly done about it. I think it’s entirely appropriate for Congress to step in and put an end to the campaign, as it nearly did this year (such a bill passed the House and was sponsored by a substantial majority of Senators, but failed on the floor there when opponents attached “poison pills”). You and Bob Levy of Cato have argued, on the other hand, that a nationwide pre-emption bill “offends basic tenets of federalism” and that “tort law is an issue for the states to resolve”. In March, when the bill failed (for this year) in the Senate, you and Bob cheered, calling the outcome a “win for the Constitution” and “good news for federalism”.

And that just baffles me. Because if there’s anything the gun-control-through-litigation campaign is not intended to do, it’s safeguard each of the fifty states’ power to hew to its own gun policy (assuming that’s a worthwhile goal or one consistent with the Second Amendment). The 30+ big-city suits, as well as the almost as carefully orchestrated private suits, have been filed disproportionately in court districts where gun ownership is politically unpopular, and a major part of activists’ strategy is to keep trying different courts and theories until they break through somewhere -- most likely, in a state that is significantly less friendly toward Second Amendment values than the average state. The result (or so the activists hope) will be some combination of liability verdicts, court decrees and coerced settlements which will significantly curtail access to guns not just in the state or court district where the lawyers broke through, but across the nation. In other words, the aim is to use the courts of one or a few states to obtain controls which will shut down or constrict gun availability in other states which were never consulted on the matter -- all without the need to win any sort of up-or-down vote in Congress.

This can’t possibly be the sort of thing the Framers envisioned as appropriate when they devised the Constitution. But if not, under which enumerated powers can Congress act? I expect we’ll be exploring that question in the days ahead. You’ve criticized the use of the Commerce Clause as a possible source of authority, but -- as you acknowledge -- that clause is only one of several Constitutional provisions that may bestow relevant powers on the federal government. For now, I’ll just note that from the start -- not just since the New Deal revolution, but since the Constitution’s adoption -- the feds have been knee-deep in overseeing important aspects of the operation of the state courts. The most salient common thread in these interventions has been the need to watch the state courts when they start trying to project their power to persons, policies and pocketbooks in other states -- exactly what the gun controllers are trying to get them to do here. That’s the best explanation of why the Constitution asserts national authority over controversies arising in “diversity” between citizens of different states, over bankruptcy, over admiralty and maritime law, and over numerous other sorts of cases. Virtually every significant anti-gunmaker suit, it should be noted, is either aimed at an out-of-state entity, or seeks to assign liability to out-of-state conduct, or both.

But before I turn the floor over to you, I have a question. I noticed what I thought was a small but significant difference between your longer Cato paper (PDF), which I assume was drafted first, and the shorter National Review Online knock-off. In the longer paper, your rejection of federal pre-emption is couched in something closer to absolute language: it’s unconstitutional, and that’s that. In NRO, on the other hand, you instead call it “premature”, and acknowledge that “things might one day get out of hand. If a state, or the District of Columbia, eventually does endanger Americans' Second Amendment rights through bogus damage awards against gun makers, those excesses will indeed justify federal intervention under the 14th Amendment. But we’re not there yet.”

I was delighted to see what seemed to be a movement toward my own position, but perhaps I should first ask: have your views indeed evolved, or am I reading too much into this? And if it’s now a question of timing -- federal intervention is not yet constitutional but will ripen into constitutionality once things reach crisis stage -- my next question is: how will we know when things have gotten out of hand? The first time the plaintiffs score a favorable appellate court ruling? (That’s happened.) The first gunmaker bankruptcy occasioned by the cost of litigation? (There have already been a couple.) The first settlement by a gun supplier under duress? (That’s happened already, too.) The first check written to plaintiffs? Does it have to be a big check? How big? How much damage to innocent businesses, to the right to bear arms, and to the rule of law, must be endured before we can intervene? Or would it be okay to legislate beforehand to forestall at least some of these evils before they occur?

Ball’s in your court. Thanks for agreeing to take part in this.

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Regulation Through Litigation



Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.