Posted by Eugene Volokh:
Why Congress Should Pre-empt Lawsuits Against Gun Manufacturers:
Still more evidence comes in [1]in District of Columbia v. Beretta,
U.S.A., just decided today by the D.C. Court of Appeals -- D.C.'s
equivalent of a state supreme court. The court generally rejected
various lawsuits against gun manufacturers, but held that victims of
gun crimes were entitled to sue gun manufacturers under D.C. Code sec.
7-2551.01:
Any manufacturer, importer, or dealer of an assault weapon or
machine gun shall be held strictly liable in tort, without regard
to fault or proof of defect, for all direct and consequential
damages that arise from bodily injury or death if the bodily injury
or death proximately results from the discharge of the assault
weapon or machine gun in the District of Columbia.
To quote the court further,
The SLA defines �assault weapon� to include a number of specific
products, and invests �machine gun� with the same meaning defined
in D.C. Code § 7-2501.01 (10), i.e., �any firearm which shoots, is
designed to shoot, or can be readily converted or restored to
shoot: (A) Automatically, more than 1 shot by a single function of
the trigger; [or] (B) Semiautomatically, more than 12 shots without
manual reloading.�
The latter definition of "machine gun" is of course highly misleading
-- a semiautomatic gun that fires one shot per trigger pull is not a
machinegun, even if it has a 13-round magazine -- but that's the
definition the law uses. So D.C. law holds manufacturers and dealers
liable for crimes committed using many ordinary guns, if the guns can
hold 13 or more rounds. (Under a separate statute, the city is also
entitled to sue manufacturers and dealers based on such crimes, for
reimbursement for various health care costs that it has had to pay.)
And this is so even if the manufacturers and dealers are distributing
the guns far outside D.C., in a jurisdiction where the guns are
perfectly legal. You may have the perfect right to buy such a gun in
some state (let's say Tennessee), sellers may have the right to sell
it to you there, and Tennessee-based manufacturers may have the right
to make it there, both under Tennessee law and under federal law. But
because of the actions of the D.C. City Council, the manufacturers may
find themselves having to stop selling the guns in Tennessee, for fear
of being sued in D.C. Or they may at least increase the gun's price,
which means that the D.C. City Council would have effectively imposed
a tax on what happens in Tennessee.
Now some people may think that such guns should be banned or taxed
because some people use them illegally, or gun manufacturers should be
held liable for that. Others (including [2]me) think that this is no
more proper than allowing lawsuits against car or alcohol
manufacturers because some people drive drunk. (There are about as
many alcohol-related and car-related deaths of innocent bystanders as
of gun-related bystanders.)
But whatever you think of the bottom line, surely it's wrong for the
D.C. City Council, which represents about 0.2% of the U.S. population,
to make rules that affect 99.8% of the population. That's precisely
the sort of burden on extra-state behavior that Congress has the power
to lift (even if the burden is imposed by a quasi-sovereign state,
rather than by the D.C. City Council, which is directly within
Congress's plenary power), and that Congress indeed should lift.
And I'd also say the same about similar liability rules imposed on
other products besides guns. Say that some neo-prohibitionist state
indeed decides to make alcohol manufacturers strictly liable for all
alcohol-related crimes caused in that state, even if the alcohol is
made and sold outside the state. It would be just as wrong for that
state to impose its alcohol-prohibitionist rules on out-of-state
manufacturers, distributors, and consumers as it is for D.C. to impose
its gun-prohibitionist rules.
Finally, one can also argue that the relatively pro-gun-rights states
are imposing their policies on other jurisdictions, by allowing the
sales of guns that eventually leak out into places that are trying to
restrict guns; and likewise in the alcohol hypothetical. But this too
is an argument for Congressional decision about what's the best policy
-- decision by a body that, for all its flaws, at least represents the
nation as a whole. (Perhaps there ought to be some constitutional
limits on such Congressional action, if it involves purely in-state
transactions; but under modern Commerce Clause jurisprudence, Congress
would have the power to control even such in-state economic
transactions, precisely because in-state transactions may have serious
out-of-state effects.)
Federalism means leaving many matters to states, even when one
disagrees with the decisions that particular states may reach. But it
also means leaving Congress with the power to resolve those issues
that involve genuinely interstate effects. When the D.C. City Council
imposes its vision of proper gun control on the remaining 99.8% of the
country, even a sincerely federalist Congress should step in.
References
1. http://www.dcappeals.gov/dccourts/appeals/pdf/03-CV-24+.PDF
2. http://volokh.com/2003_03_23_volokh_archive.html#200045364
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