Posted on 11/03/2005 2:24:08 PM PST by inquest
There's a new poll up on the side. Do you think the interstate commerce clause of the Constitution authorizes federal laws against narcotics and firearms? Now lest everyone forget, this isn't asking whether you personally agree with such laws. It's about whether your honest reading of the Constitution can justify them.
While you're thinking it over, it might help to reflect on what James Madison had to say about federal power over interstate commerce:
Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.I'll be looking forward to your comments.
Is there anything, anywhere, that could not possibly be sold out of state? Even the very dirt on which your home is built could someday be dug up and shipped elsewhere.
Hopefully you've had a chance to reread the letter, as well as the replies on this thread which refute your flawed assertion.
The nub of the matter is that Madison saw the remedy as being appeals to Congress, not federal court intervention.
He saw Congress as the remedy to preventing and correcting injustices among the State.
However, that is altogether different from determining the proper extent of legislation by Congress. The Court may overturn Congress on I.8.3./I.8.18. legislation. Even Scalia says so.
But letters and writing of the Framers should not be preferred to the text of the document itself. On that basis, the commerce clause is so broadly written that, as Madison suggests, appeals for limits are properly directed at Congress, not the courts.
Again, Congress is not the sole arbiter of what is proper under I.8.3., and Madison never said or implied that it was.
Is there anything, anywhere, that could not possibly be sold out of state?
I think we are at the point of trading arguments that we have made stale. Come up with something new on the subject, if you can. My stock of material at hand is exhausted.
Here are the newest results from the poll:
Constitution: Do you think the expansion of the Interstate Commerce Clause to include regulation and prohibition of drugs and firearms is a proper use of that clause?
Member Opinion
No 85.7% 1,033
Undecided/Pass 9.5% 114
Yes 4.9% 59
If Madison meant choice he would likely have said 'or'.
What would you think of the constitutionality of the following:
It shall be unlawful for a judge in any court to be a party to litigative interference in interstate commerce unless certain requirements are met.What would you think of that as legislation? It would seem to fit entirely within Congress' exclusive "interstate commerce" power, while nonetheless having the effect of protecting businesses from rogue out-of-state judges. I think the burdens of proof therein are entirely reasonable (the last clause is basically a catchall to invite juries to do what they should, which is use common sense in cases legislators failed to consider; its standard of proof is much lower for the prosecutor and higher for the accused judge than all the rest).Any judge before which is brought a motion to dismiss any lawsuit or other such cause of action against a person or business engaged in interstate commerce in and related to firearms, including but not limitted to manufacturers, distributors, dealers, gunsmiths, etc., shall be required to honor such motion unless he reasonably finds:
A judge who declines to honor a motion to dismiss must identify the reason or reasons for dismissal. A judge who fails to dismiss without good reason may be prosecuted for interfering with interstate commerce. In such case, the prosecutor must show that not only does it appear that none of the above stated defenses applies, but also--with the exception of the last defense--that no reasonable person could have believed that it did.
- The action would not in any way interfere with the interstate commerce of firearms, or
- All defendants in the action are located within the same state as the judge (a judge may "correct" an action by dropping all out-of-state defendants).
- The lawsuit alleges, and there is reason to believe the allegation accurate, that a person was harmed as a result of a defect in the manufacture or worksmanship of a firearm or other product.
- The lawsuit alleges, and there is reason to believe the allegation accurate, that the defendant committed some action which was illegal at the time it was committed, the defendant should have known such action to be illegal, and such action forms the basis for damages.
- The lawsuit does not allege that a person was damaged directly or indirectly by firearms, but is predicated entirely on other manners such as--but not limited to--failure to honor contracts.
- It can be shown by clear and compelling evidence that dismissal of the case would be contrary to national iterests.
Allowing Congress to issue factual findings which cannot be challenged in front of a jury seriously undermines this principle.
As do judges not informing jurors that they are to judge the facts and the law. Judges routinely informed juries of those until 1894. For good reason, the fourth amendment and original intent.
In other words, a clause cannot be used for anything other that for what it was originally intended? Is that why you keep bringing up this "original intent" crap, over and over and over again? I think the original intent of the 2nd amendment was to allow individuals to own muskets.
Without original intent nothing said or done can be certain -- nothing! No original intent for the 9/11 terrorists, no original intent for going to war in Iraq, no original intent for bearing arms -- not just muskets -- arms. If the authors of the BOR had meant only long rifles or only muskets or only pistols they would have said only____.
BTW, you calling original intent 'crap' is you shooting yourself in the foot.
You're a hoot.
As to the poll regarding the question of this thread...
No 85.5% 1,039
Undecided/Pass 9.5% 115
Yes 5.0% 61
100.0% 1,215
The author of the commerce clause did good. Considering the vast majority of people understand what it empowers government to do. Equal important, what government is not empowered to do.
My argument is that your statement that "Roe v Wade is viewed as a bad decision by most conservatives and even some high profile liberals" is undercut by your retorting to my criticism of Touby v USA with "Then you take a legal run at it and we'll see how far you get." You can pretend that this is not "a substantive argument that is worth responding to" but nobody will be fooled by your transparent evasion.
Actually, necessity is a credible argument in favor of comprehensive regulation as to drugs. Simply insisting upon the contrary does not answer the argument.
It's YOU who's simply insisting upon the correctness of his position; I'm the one who's made an actual argument, which you quoted above without responding to.
With the goal of that being ... what?
The goal being effectiveness in many cases. Are you really this dense, or are you hoping readers of this thread are?
No, almost the exact opposite. Think of the phrase "jointly and severally liable". Do you know what the "severally" means in that phrase? It means separate from one another. So "commerce among the several states" means among the states considered as seprate entities from each other. In other words, interstate commerce.
In the context of the Constitution, the word "several" has absolutely nothing to do with quantity - either directly, indirectly, or tangentially.
I think that you have simply returned to the main disagreement as to the scope of the commerce power.
No, hes has soundly rebutted your claim that "In the parlance of the era, 'several states' refers to the states as a whole."
Stick around if you enjoy watching big-government "conservatives" try to deny the obvious.
As dead as we let them be. I don't propose to let them be without a fight.
Another one for my FR home page.
New, as in argument, not a head count.
Your suggestion is ingenious, but it is a procedural contrivance that relies on instilling fear in the judiciary more than substantive legal principle. Forgive a lengthy post, but what follows may be of interest to you.
Here is what Congress passed as to gun liability this summer; and note that Congress relied on the Second Amendment and an expansive view of the commerce clause:
S.397
One Hundred Ninth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the fourth day of January, two thousand and five
An Act
To prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages, injunctive or other relief resulting from the misuse of their products by others.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Protection of Lawful Commerce in Arms Act'.
SEC. 2. FINDINGS; PURPOSES.
(a) Findings- Congress finds the following:
(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.
(3) Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.
(4) The manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act, and the Arms Export Control Act.
(5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.
(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.
(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.
(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.
(b) Purposes- The purposes of this Act are as follows:
(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.
(2) To preserve a citizen's access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.
(3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.
(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.
(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.
(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.
(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.
SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL LIABILITY ACTIONS IN FEDERAL OR STATE COURT.
(a) In General- A qualified civil liability action may not be brought in any Federal or State court.
(b) Dismissal of Pending Actions- A qualified civil liability action that is pending on the date of enactment of this Act shall be immediately dismissed by the court in which the action was brought or is currently pending.
SEC. 4. DEFINITIONS.
In this Act:
(1) ENGAGED IN THE BUSINESS- The term `engaged in the business' has the meaning given that term in section 921(a)(21) of title 18, United States Code, and, as applied to a seller of ammunition, means a person who devotes time, attention, and labor to the sale of ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of ammunition.
(2) MANUFACTURER- The term `manufacturer' means, with respect to a qualified product, a person who is engaged in the business of manufacturing the product in interstate or foreign commerce and who is licensed to engage in business as such a manufacturer under chapter 44 of title 18, United States Code.
(3) PERSON- The term `person' means any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, including any governmental entity.
(4) QUALIFIED PRODUCT- The term `qualified product' means a firearm (as defined in subparagraph (A) or (B) of section 921(a)(3) of title 18, United States Code), including any antique firearm (as defined in section 921(a)(16) of such title), or ammunition (as defined in section 921(a)(17)(A) of such title), or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce.
(5) QUALIFIED CIVIL LIABILITY ACTION-
(A) IN GENERAL- The term `qualified civil liability action' means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include--
(i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including--
(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code;
(iv) an action for breach of contract or warranty in connection with the purchase of the product;
(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or
(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26, United States Code.
(B) NEGLIGENT ENTRUSTMENT- As used in subparagraph (A)(ii), the term `negligent entrustment' means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.
(C) RULE OF CONSTRUCTION- The exceptions enumerated under clauses (i) through (v) of subparagraph (A) shall be construed so as not to be in conflict, and no provision of this Act shall be construed to create a public or private cause of action or remedy.
(D) MINOR CHILD EXCEPTION- Nothing in this Act shall be construed to limit the right of a person under 17 years of age to recover damages authorized under Federal or State law in a civil action that meets 1 of the requirements under clauses (i) through (v) of subparagraph (A).
(6) SELLER- The term `seller' means, with respect to a qualified product--
(A) an importer (as defined in section 921(a)(9) of title 18, United States Code) who is engaged in the business as such an importer in interstate or foreign commerce and who is licensed to engage in business as such an importer under chapter 44 of title 18, United States Code;
(B) a dealer (as defined in section 921(a)(11) of title 18, United States Code) who is engaged in the business as such a dealer in interstate or foreign commerce and who is licensed to engage in business as such a dealer under chapter 44 of title 18, United States Code; or
(C) a person engaged in the business of selling ammunition (as defined in section 921(a)(17)(A) of title 18, United States Code) in interstate or foreign commerce at the wholesale or retail level.
(7) STATE- The term `State' includes each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands, and any other territory or possession of the United States, and any political subdivision of any such place.
(8) TRADE ASSOCIATION- The term `trade association' means--
(A) any corporation, unincorporated association, federation, business league, professional or business organization not organized or operated for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual;
(B) that is an organization described in section 501(c)(6) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code; and
(C) 2 or more members of which are manufacturers or sellers of a qualified product.
(9) UNLAWFUL MISUSE- The term `unlawful misuse' means conduct that violates a statute, ordinance, or regulation as it relates to the use of a qualified product.
SEC. 5. CHILD SAFETY LOCKS.
(a) SHORT TITLE- This section may be cited as the `Child Safety Lock Act of 2005'.
(b) PURPOSES- The purposes of this section are--
(1) to promote the safe storage and use of handguns by consumers;
(2) to prevent unauthorized persons from gaining access to or use of a handgun, including children who may not be in possession of a handgun; and
(3) to avoid hindering industry from supplying firearms to law abiding citizens for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.
(c) FIREARMS SAFETY-
(1) MANDATORY TRANSFER OF SECURE GUN STORAGE OR SAFETY DEVICE- Section 922 of title 18, United States Code, is amended by inserting at the end the following:
(z) SECURE GUN STORAGE OR SAFETY DEVICE-
(1) IN GENERAL- Except as provided under paragraph (2), it shall be unlawful for any licensed importer, licensed manufacturer, or licensed dealer to sell, deliver, or transfer any handgun to any person other than any person licensed under this chapter, unless the transferee is provided with a secure gun storage or safety device (as defined in section 921(a)(34)) for that handgun.
(2) EXCEPTIONS- Paragraph (1) shall not apply to--
(A)(i) the manufacture for, transfer to, or possession by, the United States, a department or agency of the United States, a State, or a department, agency, or political subdivision of a State, of a handgun; or
(ii) the transfer to, or possession by, a law enforcement officer employed by an entity referred to in clause (i) of a handgun for law enforcement purposes (whether on or off duty); or
(B) the transfer to, or possession by, a rail police officer employed by a rail carrier and certified or commissioned as a police officer under the laws of a State of a handgun for purposes of law enforcement (whether on or off duty);
(C) the transfer to any person of a handgun listed as a curio or relic by the Secretary pursuant to section 921(a)(13); or
(D) the transfer to any person of a handgun for which a secure gun storage or safety device is temporarily unavailable for the reasons described in the exceptions stated in section 923(e), if the licensed manufacturer, licensed importer, or licensed dealer delivers to the transferee within 10 calendar days from the date of the delivery of the handgun to the transferee a secure gun storage or safety device for the handgun.
(3) LIABILITY FOR USE-
(A) IN GENERAL- Notwithstanding any other provision of law, a person who has lawful possession and control of a handgun, and who uses a secure gun storage or safety device with the handgun, shall be entitled to immunity from a qualified civil liability action.
(B) PROSPECTIVE ACTIONS- A qualified civil liability action may not be brought in any Federal or State court.
(C) DEFINED TERM- As used in this paragraph, the term `qualified civil liability action'--
(i) means a civil action brought by any person against a person described in subparagraph (A) for damages resulting from the criminal or unlawful misuse of the handgun by a third party, if--
(I) the handgun was accessed by another person who did not have the permission or authorization of the person having lawful possession and control of the handgun to have access to it; and
(II) at the time access was gained by the person not so authorized, the handgun had been made inoperable by use of a secure gun storage or safety device; and
(ii) shall not include an action brought against the person having lawful possession and control of the handgun for negligent entrustment or negligence per se.'.
(2) CIVIL PENALTIES- Section 924 of title 18, United States Code, is amended--
(A) in subsection (a)(1), by striking `or (f)' and inserting `(f), or (p)'; and
(B) by adding at the end the following:
(p) PENALTIES RELATING TO SECURE GUN STORAGE OR SAFETY DEVICE-
(1) IN GENERAL-
(A) SUSPENSION OR REVOCATION OF LICENSE; CIVIL PENALTIES- With respect to each violation of section 922(z)(1) by a licensed manufacturer, licensed importer, or licensed dealer, the Secretary may, after notice and opportunity for hearing--
(i) suspend for not more than 6 months, or revoke, the license issued to the licensee under this chapter that was used to conduct the firearms transfer; or
(ii) subject the licensee to a civil penalty in an amount equal to not more than $2,500.
(B) REVIEW- An action of the Secretary under this paragraph may be reviewed only as provided under section 923(f).
(2) ADMINISTRATIVE REMEDIES- The suspension or revocation of a license or the imposition of a civil penalty under paragraph (1) shall not preclude any administrative remedy that is otherwise available to the Secretary.'.
(3) LIABILITY; EVIDENCE-
(A) LIABILITY- Nothing in this section shall be construed to--
(i) create a cause of action against any Federal firearms licensee or any other person for any civil liability; or
(ii) establish any standard of care.
(B) EVIDENCE- Notwithstanding any other provision of law, evidence regarding compliance or noncompliance with the amendments made by this section shall not be admissible as evidence in any proceeding of any court, agency, board, or other entity, except with respect to an action relating to section 922(z) of title 18, United States Code, as added by this subsection.
(C) RULE OF CONSTRUCTION- Nothing in this paragraph shall be construed to bar a governmental action to impose a penalty under section 924(p) of title 18, United States Code, for a failure to comply with section 922(z) of that title.
(d) EFFECTIVE DATE- This section and the amendments made by this section shall take effect 180 days after the date of enactment of this Act.
SEC. 6. ARMOR PIERCING AMMUNITION.
(a) Unlawful Acts- Section 922(a) of title 18, United States Code, is amended by striking paragraphs (7) and (8) and inserting the following:
(7) for any person to manufacture or import armor piercing ammunition, unless--
(A) the manufacture of such ammunition is for the use of the United States, any department or agency of the United States, any State, or any department, agency, or political subdivision of a State;
(B) the manufacture of such ammunition is for the purpose of exportation; or
(C) the manufacture or importation of such ammunition is for the purpose of testing or experimentation and has been authorized by the Attorney General;
(8) for any manufacturer or importer to sell or deliver armor piercing ammunition, unless such sale or delivery--
(A) is for the use of the United States, any department or agency of the United States, any State, or any department, agency, or political subdivision of a State;
(B) is for the purpose of exportation; or
(C) is for the purpose of testing or experimentation and has been authorized by the Attorney General;'.
(b) Penalties- Section 924(c) of title 18, United States Code, is amended by adding at the end the following:
(5) Except to the extent that a greater minimum sentence is otherwise provided under this subsection, or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries armor piercing ammunition, or who, in furtherance of any such crime, possesses armor piercing ammunition, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime or conviction under this section--
(A) be sentenced to a term of imprisonment of not less than 15 years; and
(B) if death results from the use of such ammunition--
(i) if the killing is murder (as defined in section 1111), be punished by death or sentenced to a term of imprisonment for any term of years or for life; and
(ii) if the killing is manslaughter (as defined in section 1112), be punished as provided in section 1112.'.
(c) Study and Report-
(1) STUDY- The Attorney General shall conduct a study to determine whether a uniform standard for the testing of projectiles against Body Armor is feasible.
(2) ISSUES TO BE STUDIED- The study conducted under paragraph (1) shall include--
(A) variations in performance that are related to the length of the barrel of the handgun or center-fire rifle from which the projectile is fired; and
(B) the amount of powder used to propel the projectile.
(3) REPORT- Not later than 2 years after the date of enactment of this Act, the Attorney General shall submit a report containing the results of the study conducted under this subsection to--
(A) the chairman and ranking member of the Committee on the Judiciary of the Senate; and
(B) the chairman and ranking member of the Committee on the Judiciary of the House of Representatives.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
Here is an advocacy column in support of what Congress did:
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/08/07/EDGSHDTPOM1.DTL&type=printable
SF Gate
Lawsuits
PRO
Gun liability bill is all about tort reform
- Doug Painter
Sunday, August 7, 2005
With a bipartisan vote of 65-31, the U.S. Senate passed an important piece of tort reform legislation before departing for its August recess. The Protection of Lawful Commerce in Arms Act (S397) will protect responsible firearm manufacturers from "junk" lawsuits that blame them for the criminal misuse of lawfully sold products. Since 1998, members of the firearms industry have faced dozens of such frivolous lawsuits filed by cities, anti-gun advocacy groups and crime victims.
Blaming members of our highly regulated industry for the criminal misuses of a lawfully sold product is like saying Ford Motor Company should be held accountable for the harm caused when a drunk driver misuses one of its cars, or Sony when one of its cameras is used by a child pornographer.
This commonsense legal reform is supported by business groups and organized labor, who support the bill not because they have a view about "gun control" but because they understand the tremendous damage that frivolous litigation has on this country's economic growth and job creation.
Passage of this bill will also deal a debilitating blow to opportunistic politicians and trial lawyers who sidestep Congress and state legislatures by seeking to have courts decide public policy -- so-called regulation through litigation. Their strategy is simple: flood the courts across the country with baseless lawsuits, then bankrupt the companies through huge damage awards from sympathetic juries, or extort settlements from companies that can no longer withstand ever-mounting litigation costs.
The gun industry has already spent $225 million defending itself against this legal shakedown -- a massive sum for an industry that, if its individual companies were taken together, would barely make the Fortune 1000. While we have had some success in the courtroom, one bad decision could wipe out our industry. In fact, that long-feared decision has occurred.
In April, the U.S. Court of Appeals in Washington, D.C., ruled that victims of criminal gun violence could sue firearm manufacturers under a District of Columbia law that imposes absolute and automatic liability upon firearm manufacturers "without regard to fault or proof of defect." There is no defense to these claims. Manufacturers will be liable simply for having lawfully manufactured and sold common and ordinary firearms that are later illegally smuggled into the District (which bans private ownership of almost all firearms) and criminally misused there. The court even ruled that plaintiffs who are unable to identify the manufacturer of the firearm that was criminally used to injure them could sue the entire industry.
The firearm industry is among the most heavily regulated in the country, with more than 20,000 laws and regulations that must be obeyed. No consumer can purchase a firearm from a licensed dealer without undergoing a federally mandated background check. Our industry is proud of its cooperative relationship with law enforcement, and we support the aggressive enforcement of our nation's firearm laws.
This legislation does not, as its critics claim, provide gun-makers with blanket immunity. It is narrowly drafted to stop only junk lawsuits and does not close the courthouse door to truly injured parties seeking redress through the courts under well-recognized legal theories. It does not, for example, bar suits where anyone violates the law, where the product is defective or where a dealer sells the firearm to someone who is intoxicated or delusional.
There is nothing unique about Congress enacting laws to shield a specific industry from harmful lawsuits. Congress has done this for drug companies, the computer industry, Amtrak and small-aircraft manufacturers, to mention just a few.
We agree with President Bush, who supports this bill, when he said recently, "Our country depends on a fair legal system that protects people who have been harmed without encouraging junk lawsuits that undermine confidence in our courts while hurting our economy, costing jobs and threatening small businesses."
The bill will be considered next by the House of Representatives, where an overwhelming majority is sponsoring it. More than 30 states have already passed similar legislation. The value of this legislation is clear: It will strengthen tort law, restore the integrity of our courts, protect American jobs and preserve a critical component of America's industrial base.
Doug Painter is president and CEO of the National Shooting Sports Foundation, the firearm industry's trade association. NSSF was a defendant in many of the lawsuits mentioned in this commentary.
But the respected libertarian Cato Institute opposed the measure:
Senate Off Target on Gun-liability Legislation
"Gun-liability legislation neared Senate passage today, following a tightly written script to avoid any changes that would jeopardize the bill's all-but-certain enactment into law this fall," the Wall Street Journal reports.
"Backed by the White House, the liability bill applies to both state and federal courts and would bar third parties from bringing civil-liability actions against manufacturers, distributors or dealers for damages from the unlawful use of a firearm or ammunition. Pending cases could be thrown out once the bill is enacted, and while people directly harmed in a firearms incident would still be able to sue, the standard for charging negligence is so tightly written that critics say it would be difficult to prevail."
In "Courts Defend Guns," Robert A. Levy, a senior fellow in constitutional studies at the Cato Institute, writes: "[The gun] industry's Republican allies are professed champions of federalism, supposedly dedicated to reining in the bloated powers of the national government. Apparently, that principle is expendable when hardboiled, practical politics -- that is, payback for the NRA's electioneering -- take precedence.
"To be sure, the gun lawsuits are rubbish. Whether the claims are based on 'design defect,' or 'negligent marketing,' or a trendy legal theory known as 'public nuisance,' courts across the country have done the right thing: They've concluded that gun makers are not responsible for the criminal misconduct of their customers. Of 33 lawsuits filed by various states, counties, and cities, 30 have been dismissed."
And:
http://www.cato.org/dispatch/07-29-05d.html
Cato Daily Dispatch for July 29, 2005
In "City Gun Suits Are No Business of Congress," Levy concludes: "No matter how worthwhile an end may be, if there is no constitutional authority to pursue [control of frivolous lawsuits], then the federal government must step aside and leave the matter to the states or to private parties. The president and Congress can proceed only from constitutional authority, not from good intentions alone. Congress should keep its nose out of state tort law and reaffirm that our national government is one of enumerated, delegated and, therefore, limited powers."
Here is a detailed explanation of Cato's general position against federal tort reform:
http://www.cato.org/pubs/handbook/hb107/hb107-33.pdf
The sum of this all is that there is a philosophical split on the commerce clause; but this year, in practical political terms, the new law has made gun manufacturing, trade, and ownership safer based on an expansive reading of the commerce clause.
Let's get to the key philosophical point. Assume, for purposes of argument, that the best and only prospect for the suppression of marijuana cultivation and commerce requires a comprehensive federal prohibition.
On such facts, would you grant that the commerce clause and the necessary and proper clause authorized a comprehensive federal prohibition against marijuana notwithstanding claims for an intrastate commerce exception?
If so, if you agree with that proposition, then argument over the facts of enforcement is material. If not, then argument over the facts of enforcement is fruitless.
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