Politics & Policy


No gun-suit immunity, no assault-weapons ban.

In a dramatic, almost wacky turn of events, the Senate overwhelmingly rejected S. 1805, a bill earlier this month that would have immunized firearm manufacturers and dealers against many forms of tort liability. The bill’s own sponsors turned against it, as did its original NRA supporters, after opponents succeeded in adding two “poison pill” amendments–one extending a soon-to-expire ban on so-called assault weapons, and another closing an alleged “gun-show loophole” for unregulated sales of firearms.

Pro-gun and anti-gun groups seemed equally disappointed. The NRA had lobbied long and hard for tort immunity, and lost. Gun-control advocates dearly wanted an assault-weapons extension and new gun-show rules; they lost too. Call us contrarians, but we’re delighted on both counts. To us, this is a win-win situation–a win for the Constitution and a win for law-abiding gun owners everywhere.

For starters, tort law is an issue for the states to resolve. We take a backseat to no one in condemning baseless liability suits against gun manufacturers by municipalities, counties, and states, and by victims injured when a criminal misuses a gun that has been legally produced and sold. In fact, we have written widely, describing and decrying the whole process. But baseless tort suits in state courts are not grounds for federal jurisdiction.

By our count, 33 states have enacted legislation forbidding such suits. Elsewhere, not a single claim has prevailed in any of the government-sponsored lawsuits against the gun industry. That’s pretty skimpy evidence of a firearms torts crisis. Yes, things might one day get out of hand. If a state, or the District of Columbia, eventually does endanger Americans’ Second Amendment rights through bogus damage awards against gun makers, those excesses will indeed justify federal intervention under the 14th Amendment. But we’re not there yet. To the contrary, law-abiding gun owners across the nation have pressured statehouses to prevent a “tort tax” on the price of firearms.

The Supreme Court’s position, fleshed out in City of Boerne v. Flores (1997), is that federal legislation to enforce the 14th Amendment must be “congruent and proportional” to any underlying violation by the states. Today, action by Congress is clearly premature. Let’s not throw out the constitutional baby with the frivolous lawsuit bathwater.

The defeat of S. 1805 is good news for federalism. And the downfall of the two killer amendments is just as gratifying. The “assault weapons” ban is shot full of holes. Ownership of fully automatic firearms has been heavily regulated by federal law since 1934. Semi-automatic firearms, which fire only one round each time the trigger is pulled, have been around for more than a century. They are used by tens of millions of Americans for hunting, self-defense, recreational target shooting, and in formal marksmanship competitions, including the Olympics. Even the rabidly anti-gun Washington Post admits, “Assault weapons play a part in only a small percentage of crime.”

Naturally felons, drug addicts, illegal aliens, minors, and incompetents cannot buy firearms–semi-automatic or otherwise. The ban on “assault weapons” is arbitrary and capricious. It does little to curb criminal violence; but it does a great deal to inhibit the full exercise of rights secured by the Second Amendment. For now, the ban is dead. Good riddance.

Ditto for the effort to require background checks on private sales of firearms at gun shows. According to the Bureau of Alcohol, Tobacco and Firearms, only 2 percent of criminal guns are purchased at gun shows, and that includes straw purchases (which are already illegal) and purchases through licensed dealers (which are already subject to background checks). Bad guys buy their guns on the black market, not at gun shows. The proposal for background checks on private sales is a feel-good effort to placate anti-gun zealots. Its practical effect is to saddle honest firearm owners with yet another needless regulation.

“Public Choice,” or the science of legislative action, predicts that the interplay of special interests will often result in passage of the worst kinds of legislation. Here, the opposite happened. Supporters of the legislation were trapped. They loved the tort-suit immunity favored by one special-interest group. But they hated even more the gun-control amendments offered by another special-interest group. The result: a legislative outcome that ultimately respected both federalism and Second Amendment rights. Few if any senators wanted that result. But from our perspective, two cheers for the demise of S. 1805.

Michael I. Krauss is professor of law at George Mason University. Robert A. Levy is senior fellow in constitutional studies at the Cato Institute. This article is drawn in part from the authors’ forthcoming Cato Policy Analysis, “Can Tort Reform and Federalism Coexist?”


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