It's Time for Congress to End Lawsuits Against Gun Manufacturers

Commentary by H. Sterling Burnett

Since 1997, more than 30 cities and counties have sued firearm manufacturers in an attempt to force manufacturers to change the way they make and sell guns.

State legislatures and the courts have not been slow respond. Indeed, more than 30 states have passed laws banning city lawsuits against gun manufacturers. And in the courts, more than a third of the cases have already been dismissed or dropped. The message from the legislatures and the courts has been clear: It is the responsibility of the legislature(s), not the courts, to regulate firearm production and sales; and manufacturers of legal products are not responsible for the criminal misuse of those products.

More recently, on March 19, Senator Larry Craig, with the support of a majority of the Senate, introduced the bi-partisan Protection of Lawful Commerce in Arms Act. This legislation and its companion bill in the House of Representative would ban municipal lawsuits against gun manufacturers nationwide.

Gun control activists, mayors and trial lawyers complain that federal legislation banning gun lawsuits usurps local authority. Their claim lacks merit.

The question is, why is federal intervention needed, and why now?

The answer to the latter question is that in California Governor Gray Davis signed legislation explicitly allowing lawsuits against gun makers. Ironically, Davis signed the bill on September 25, 2002, the very day that the H.R. 2037 was passed out of committee. Because the firearm industry is relatively small - less than $200 million in total profit for the entire industry in 1999 - one substantial verdict against manufacturers could bankrupt the entire industry. In California, that has now become a real possibility.

In addition, though every trial court that has heard the municipal lawsuits thus far have thrown them out in whole or part, appellate courts in three states overturned the lower courts' verdicts and allowed the suits to go forward. The appellate judges in these jurisdictions are evidently more inclined than their trial court brethren to preempt the legitimate role of the legislature and make law, rather than uphold precedent and traditional common law principles of tort in the area of firearms policy.

Federal intervention is merited for a number of reasons. These lawsuits are an attempt to circumvent the will of the majority as expressed through the legislature with the determinations of the judiciary. Several of the mayors and district attorney's have admitted as much by stating that the lawsuits are not really about money but rather about changing the way the firearm industry does business. Shaping an industry's business practices is regulation pure and simple - and regulation is the proper province of the legislature.

In addition, each Congressman swears to uphold the Constitution of the United States, and this bill is a step in satisfying that pledge. How so? The Second Amendment to the Constitution guarantees the individual's "right to keep and bear arms." However, as mentioned above, the firearms industry is relatively small. These lawsuits have already helped push two companies into bankruptcy. If the industry as a whole is forced into bankruptcy, the "the right to keep and bear arms," becomes academic.

Though firearms, if well maintained, have long product lifespans, every gun in regular use will wear out over time. With no new guns on the market, the right to keep and bear arms will become a right in name only. Even if some gun manufacturers remain, the prices for firearms will be so high that owning guns will be a right reserved, in fact if not in theory, for the relatively wealthy.

Senator Craig's bill also reemphasizes that Congress alone was delegated the power to regulate interstate commerce. Make no mistake, this is about interstate commerce. A substantial judgement against the firearm industry in a state that lacks a law prohibiting lawsuits against the firearm industry, would have the effect of regulating or ending firearms manufacturing and sales in states with such a ban.

When commercial regulations, whether created by the legislature or created de novo in the courts, in one state significantly affect commerce in other states, Congress has legitimate oversight authority in the situation. This is Congress's job, its time for them to get to it.