May
22, 2002, 9:10 a.m. None
of Their Business
Congress and
gun-liability suits.
By Robert A.
Levy
egislation
that shields gun makers and sellers from liability lawsuits sailed through
a House subcommittee on May 9. Pushed by the National Rifle Association,
the bill has 225 cosponsors. It would undermine pending litigation by
nearly three dozen states and localities seeking hundreds of millions
of dollars from the industry in connection with gun violence. Sens. Zell
Miller (D., Ga.) and Larry Craig (R., Id.) have introduced a parallel
bill in the Senate. In a nutshell, the bills provide that gun manufacturers
and distributors cannot be sued for damages arising out of a gun's illegal
use. According to the bill's advocates, those suits interfere with interstate
commerce.
Actually, the legislation
is just one more in a long list of statutes that some in Congress trumpet,
oblivious to any constitutional restraints. No doubt, Rep. Chris John
(D., La.) is correct when he warns that "Frivolous lawsuits against
gun manufacturers jeopardize a legitimate, legal business that is worth
billions of dollars to our national economy." But not every national
problem is a federal problem. The Constitution establishes a government
of limited powers. There is no federal power of the kind that the House
and Senate bills would institute. Quite simply, the power to control frivolous
lawsuits belongs to the states. Those who would have it otherwise, including
the NRA, are asking for trouble. When Congress's authority to regulate
commerce is misused to impose federal rules that restrict state gun lawsuits,
we should not be surprised that it will also be misused to impose federal
rules that restrict gun possession and ownership.
Seven years ago,
proponents of limited government concluded from the Supreme Court's opinion
in United States v. Lopez that the Commerce Clause of the
Constitution reached only commercial activities, which might include
a variety of economic undertakings but was not to be unleashed from the
operative word "commerce" to cover all manner of human conduct.
On that basis, so we thought, the Court had put an end to a statute making
it a federal crime to possess a gun in a school zone. It was not to be.
Congress simply revised the measure, adding boilerplate findings that
interstate commerce was substantially affected by school violence.
Indeed, when Congress
bothers episodically to pretend that it has constitutional authorization
for its laws, the Commerce Clause is more often than not the cited rationale.
Never mind that the large majority of federal statutes have nothing to
do with commerce. Congress has shamelessly distended the Commerce Clause
— preferring to posture on "hot button" issues like gun
violence and church arson — to permit the regulation of anything
and everything.
Originally, the purpose
of the Commerce Clause was functional: to secure the free flow of commerce
among the states. That means Congress may act only when actual or imminent
state regulations impede that purpose, or when it's clear that uniform
national regulations are essential toward that purpose. Even then, Congress's
power ought properly extend no further than to regulate: (1) channels
and vehicles of interstate commerce (such as waterways, airways, and railroads);
(2) discrimination by a state against out-of-state interests (like restrictions
on imported goods); and (3) attempts by a state to exercise sovereignty
beyond the state's borders (for example, state rules governing national
stock exchanges, telecommunications, banking, and broadcast or Internet
advertising).
The fundamental principle
is this: No matter how worthwhile an end may be, if there is no constitutional
authority to pursue it, 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. If Congress thinks it necessary to expand its powers,
the Framers crafted an amendment process for that purpose. But too often,
rather than follow that process, Congress has disregarded the limits set
by the Constitution and gutted our frontline defense against overweening
federal government.
After seven decades,
the Rehnquist Court has begun to rein in federal regulatory power asserted
under the Commerce Clause. But the Court's edicts have left too much wiggle
room for a Congress bent on enacting regulations that appease politically
connected constituents. That's not what federalism is all about. Federalism
is a system of dual sovereignty, of divided authority, with the states
checking excessive power in the hands of the federal government and vice
versa. Most particularly, federalism limits the federal role to those
few and defined powers enumerated in the Constitution. Nowhere in that
document — or in its "emanations and penumbras" —
is there a federal power to set rules that control state lawsuits against
gun makers. Those lawsuits are baseless and extortionate, but they are
not the business of Congress.
—
Robert A. Levy is senior fellow in constitutional studies at the Cato
Institute.
<% dim printurl
printurl = Request.ServerVariables("URL")%>
egislation
that shields gun makers and sellers from liability lawsuits sailed through
a House subcommittee on May 9. Pushed by the National Rifle Association,
the bill has 225 cosponsors. It would undermine pending litigation by
nearly three dozen states and localities seeking hundreds of millions
of dollars from the industry in connection with gun violence. Sens. Zell
Miller (D., Ga.) and Larry Craig (R., Id.) have introduced a parallel
bill in the Senate. In a nutshell, the bills provide that gun manufacturers
and distributors cannot be sued for damages arising out of a gun's illegal
use. According to the bill's advocates, those suits interfere with interstate
commerce.
