Covering the Front and Back Pages of the Newspaper
November 20, 2003
LAW: Oversupply of Guns - Or Tort Law?
Eugene Volokh has multiple posts tearing into the Ninth Circuit's decision today in Ileto v. Glock, Inc., No. 01-09762 (9th Cir. Nov. 20, 2003), authored by controversial liberal Clinton appointee Richard Paez. Apparently, the decision holds that the "negligent oversupply" of guns by Glock -- including legal sales of guns in states with lax gun laws, allegedly with the knowledge that they would make their way to states with more restrictive gun laws, such as California -- could subject Glock to liability under the common law of negligence in California. Volokh argues, among other things, that the decision severely oversteps the boundaries of state negligence law by imposing restrictive California laws to the legal sales of guns in other states.
I'll have to read the 61-page opinion soon (it's on the list along with the gay marriage decision in Massachusetts, which may similarly threaten to export a single state's judge-made law to the whole nation), and I'll have more to say then. (Unlike Prof. Volokh, I feel pretty confident that I know the dormant Commerce Clause cases in this area quite well, having briefed similar issues fairly exhaustively a few years back and continued to follow developments in the area.). For now, you can read my take here and here on why I think the 'oversupply' theory violates the dormant Commerce Clause; a sample:
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.
For more on the theory of Federalism's Edge that unites the gun issue, the gay marriage issue and a host of other hot-button issues, see my lengthier essay here.