The Corner

Hillary Clinton’s Unconstitutional Anti-Gun Talking Point

In response to Maybe He Used Geithner’s Copy of TurboTax

Charlie, as you note at the end of your excellent post refuting Hillary Clinton’s support for throwing unprecedented liability risks on gun manufacturers, one does not so easily strip Americans of their constitutional rights. The purchase and possession of a gun for self-defense is a right every bit as constitutionally-protected as the right of free speech or the right of free exercise of religion, and liability rules that are transparently designed to choke off access to guns would be no more constitutional than liability rules transparently designed to punish free speech. 

First Amendment jurisprudence has long guarded against creative use of the tort system to stifle free speech. For example, just as the government can’t directly ban tough criticism of public figures, it can’t indirectly ban such speech by empowering private causes of action. Indeed, the Constitution mandates that state libel laws provide generous protections even for mistaken factual assertions against public figures, and good luck suing anyone for an “offensive” statement of opinion.

Libel law is at least directed at the bad actor. Hillary’s law is far worse. I like your analogy of the absurdity of, say, suing Ford if a maniac drives his perfectly-functioning truck through a crowd, but given the constitutional implications, Hillary’s law would be like suing the maker of a printing press because the National Enquirer lied about Kim Kardashian. Or, to make things more current, it would be like suing Apple because Salon slandered a pastor.

Incidentally, this is another reason why Second Amendment activists aren’t fooled by Democrats’ assertion that they’re simply interested in “common-sense” gun control and aren’t “after your guns.” If it’s now received conventional wisdom in the Democratic primary that gun manufacturers can and should be sued into oblivion for making a perfectly-functioning product, then they’re going far beyond closing the mythical “gun show loophole” and instead advocating closing the market for new firearms. Remington could no more survive lawsuits for misuse of a well-manufactured Model 870 than could Ford for the misuse of a well-made F250


David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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