Baseball Crank
Covering the Front and Back Pages of the Newspaper
April 22, 2003
LAW: Federalism and Guns

Jacob Sullum, writing in the libertarian journal Reason, questions whether new federal legislation to protect against lawsuits against the gun industry is consistent with a narrow reading of the commerce power and a commitment to federalism. I haven't studied the bill he's addressing, but I do think it's worth considering the fact that at least some of the current litigation flies in the face of existing law on the Commerce Clause and conflicts with the principles I cited in my post on Federalism's Edge.

A number of the recent suits, rather than challenge guns as inherently dangerous, have pushed some variation of an "oversupply" theory: that gun manufacturers allegedly have knowingly sold more guns in states with lax gun laws than the local demand, knowing that such guns would then be illegally shipped across state lines to states where the gun laws are tighter. The problem with this theory is twofold. First, this directly imposes liability on the very act of interstate commerce - a serious problem under existing Commerce Clause cases. Second, by making legal sales in State A illegal under State B's law because of their impact on State B, State B has effectively overstepped the very boundaries that the Supreme Court's State Farm v. Campbell decision purports to police.

Posted by Baseball Crank at 1:02 AM | Law 2002-04 | Comments (1) | TrackBack (0)
Comments

If you consider that one purpose of the commerce clause is to overcome problems of horizontal Federalism, i.e. laws in one state impacting others, then I think the answer is that this legislation is not only consistent with Federalism, but actually helps promote it.

Why should the glegislature or courts of, say, New York or Ohio be able to dictate what laws will govern items found in Interstate commerce? But that is exactly what happens with these lawsuits.

National policy should be determnined at the national level and local policy should be determined at the local level. That is the essence of Federalism.

Posted by: Bruce Rheinstein at April 22, 2003 10:35 AM
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