# Protecting U.S. gun manufacturers from lawsuits, good or bad? **URL:** \ **Category:** Great Debates\ **Created:** [October 21, 2005, 2:25am UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189 "2005-10-21T02:25:42Z")\ **Posts on this page:** 20\ **Page:** 9
**Author:** ![justwannano](https://avatars.discourse-cdn.com/v4/letter/j/7ab992/32.png) [@justwannano](https://boards.straightdope.com/u/justwannano)\ **Post date:** [October 29, 2005, 8:45pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/161 "2005-10-29T20:45:54Z")
> [@Campion](#): > > A few points of clarification: The gun manufacturers were not being charged with being accessories to a crime. They were being sued civilly. The theories of liability being used in civil court, as far as I know, generally did not include accusing the gun manufacturers of being an accessory. But to the extent that they did, those causes of action would survive this new legislation, under the section exempting aiding and abetting or conspiracy. > True, any third-grader could tell you that if you point a gun at someone and pull the trigger, you’re responsible for what you did. But that isn’t the question. The question is: how did you get to that point? Did anyone help you? Should they be held responsible for getting you there? > > The arguments made (at least in the _Young_ case) were that the gun manufacturers deliberately targeted a segment of the population that planned to use the gun to commit crimes, and that in doing so – in putting more guns into the hands of the criminal element – the gun manufacturers created a public nuisance, making our cities less safe, and endangering everyone. > > Baloney? Yeah (in my biased opinion). But that’s how the law deals with baloney theories – they get run up the flagpole and shot down a few times before there’s a significant body of law that makes it clear the theory is bunk. > The problem isn’t the moral blame; it’s the legal liability. Congress passed this law to make it plain that these types of lawsuits no longer are viable. I’m a bit confused because it seems that you oppose the law, but in fact all of your arguments are in favor of it. If these actions are, indeed, frivolous, as you seem to be arguing, then why shouldn’t Congress pass a law that states that? Why should we have to wait for the slow development of the common law in all jurisdictions as these cases are tested and rejected? And, again, there is a tremendous cost, including to the judicial system itself, to having these suits work themselves through the system if they are baseless. The time that the courts spend on these cases is time they cannot spend on other matters. Take the _Young_ case – it took the trial court, appellate court, and state supreme court’s time to resolve. > Maybe it is what the law is about, but it isn’t what the law ought to be about. The law (including equity) ought to be about justice. The reason we have a system set up as we do is to permit justice to happen. I realize that this isn’t the general perception of the legal system (and some days, it’s not my perception of it either). > > Another thing – the lawyers who bring these types of suits are not generally “high paid,” but they are rich, and they do have significant war chests, money accumulated in other lawsuits that they use to fund these lawsuits. > > The one benefit of the law we really haven’t explored is that it changes the leverage for settlement. Because this law sets a blanket prohibition on a category of lawsuits, any lawyer bringing one of the prohibited suits knows that he will have a harder time forcing a settlement. Because the outcome of such a suit is now more certain than it was before the law was passed, it means that a gun manufacturer is less likely to be extorted for settlement money – “If you don’t pay me X million dollars, I’ll pursue this lawsuit and it will cost you that much to pay your own lawyers to defend.” The founders of this country established 3 branches. When one branch goes awry the other 2 are empowered to grab them by the knap of the neck and give them a good shake. Now I don’t know how someone could graduate from high school let alone several years of college and not know that. Its amazing that college educated folks are paid high bucks because for their knowlege because lots of time they don’t use it. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [October 30, 2005, 4:11pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/162 "2005-10-30T16:11:22Z")
> [@Campion](#): > > A few points of clarification: > > :snip: That’s all nice, **Campion** , but from where I’m sitting (been watching these suits for several years), it seems that most have been “shot down” as you put it, only to be taken to a new jurisdiction to be tried again. And again. And again. And again. Now I know that laws vary by state; does it take a ruling from the supreme court of every state that such lawsuits have no merit for them to go away? Does it take a ruling from each federal district and circuit court for these “nuisance” lawsuits to go away? Note that I do NOT automatically equate any lawsuit against a firearms manufacturer as a “nuisance” suit, but I think we had a runaway activist bench more than ready to facilitate the anti-gun groups who found a legal loophole to pressure an industry _they thought_ was “bad.” And Congress, as one of the three branches of government, acted responsibly in crafting this legislation. Yes, it is narrow, and it does nothing to protect manufacturers and distributors who actually break the law (nor should it). But it does draw a “line” that firearms manufacturers are not responsible for the actions of third parties, which will cut out at least one of the more ridiculous aspects of the lawsuits. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [October 30, 2005, 5:09pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/163 "2005-10-30T17:09:26Z")
> [@ExTank](#): > > Now I know that laws vary by state; does it take a ruling from the supreme court of every state that such lawsuits have no merit for them to go away? Does it take a ruling from each federal district and circuit court for these “nuisance” lawsuits to go away? It would take either (a) a federal law that “pre-empts” state laws on the topic or (b) a decision by each state’s highest court and each circuit court of appeals (or the U.S. Supreme Court). This legislation seems a more effective means to an end. > [@](#): > > Note that I do NOT automatically equate any lawsuit against a firearms manufacturer as a “nuisance” suit, but I think we had a runaway activist bench more than ready to facilitate the anti-gun groups who found a legal loophole to pressure an industry they thought was “bad.” And Congress, as one of the three branches of government, acted responsibly in crafting this legislation. I’ll disagree with “a runaway activist bench” but grant you “certain judges in various (sometimes influential) jurisdictions.” I’ll also agree that Congress did its job: it passed legislation on which the courts can base their decisions; that’s what Congress is supposed to do. I’m sensing a certain amount of pushback from **ExTank** and **justwannano** (although I’ll confess I didn’t understand **justwannano** ’s post), and maybe that’s because I haven’t endorsed the position that the courts were too permissive in permitting these lawsuits to go on as long as they did. From a longer-term perspective, things worked as they ought to: the lawsuits eventually were dismissed, and Congress has now passed a law to prevent much of the abuse. Were gun manufacturers “unfairly” targeted for suit? Sure, some were, and it cost them millions and millions of dollars in legal fees alone (which they will never be able to recover, even when found not liable). But as others have pointed out, other industries also are unfairly targeted, and will continue to face meritless lawsuits (and incur significant defense costs). Should we consider tort reform generally, rather than attacking it piecemeal? I suppose that’s a pipe dream. Personally, I don’t know whether this law will be effective. It will be interesting to see how the courts interpret it, and how the plaintiffs’ bar tries to work around it. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 30, 2005, 8:14pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/164 "2005-10-30T20:14:24Z")
I’m not sure how much help this bill will be. Remember that under the [_Rooker-Feldman_ doctrine](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&linkurl=%3C%25LINKURL%25%3E&graphurl=%3C%25GRAPHURL%25%3E&court=US&case=/data/us/460/462.html) , lower federal courts don’t have jurisdiction to review state court decisions. The only avenue for review of the decisions is through a _writ of certiorari_ in the Supreme Court. Any gun manufacturer that hopes to use this bill as a defense in an “activist” court system (whichis apparently one that permits frivolous cases to proceed) will have to try the case and lose (I’m neglecting the possibility of interlocutory review, of course, but that has its own complications), appeal the case unsucessfully throught the stat court’s appellate system, and then seek discretionary review by the Supreme Court. Assuming they get there, the gun manufacturers will have to deal with this language from [_Erie_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=304&invol=64#78): > [@](#): > > Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. So state tort reform legislation would be much more effective than federal legislation. And if the state decides that gun manufacturers ought to be liable on the theories described by the bill, why should Congress have the power to overrule them. Madison’s proposal to give Congress the power to negate state laws was rejected, after all. _Compare_, [http://www.classbrain.com/artteenst/publish/article\_34.shtml](http://www.classbrain.com/artteenst/publish/article_34.shtml) (Article 6 of Virginia Plan included negative on state laws) \*with \* [http://www.house.gov/Constitution/Constitution.html](http://www.house.gov/Constitution/Constitution.html) (no negative on state laws included in constitution). IMO, a better way to deal with frivolous lawsuits is to enforce the existing rules against them. Judges already have the power, as you noted early, to dismiss a case for failure to state a claim upon which relief may be granted. They also have the power to sanction an attorney for filing a frivolous lawsuit. They generally do neither. Maybe we should devote some time to figuring out why not? ---
**Author:** ![justwannano](https://avatars.discourse-cdn.com/v4/letter/j/7ab992/32.png) [@justwannano](https://boards.straightdope.com/u/justwannano)\ **Post date:** [October 30, 2005, 8:45pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/165 "2005-10-30T20:45:10Z")
> [@Campion](#): > > It would take either (a) a federal law that “pre-empts” state laws on the topic or (b) a decision by each state’s highest court and each circuit court of appeals (or the U.S. Supreme Court). This legislation seems a more effective means to an end. > I’ll disagree with “a runaway activist bench” but grant you “certain judges in various (sometimes influential) jurisdictions.” I’ll also agree that Congress did its job: it passed legislation on which the courts can base their decisions; that’s what Congress is supposed to do. > > I’m sensing a certain amount of pushback from **ExTank** and **justwannano** (although I’ll confess I didn’t understand **justwannano** ’s post), and maybe that’s because I haven’t endorsed the position that the courts were too permissive in permitting these lawsuits to go on as long as they did. From a longer-term perspective, things worked as they ought to: the lawsuits eventually were dismssed, and Congress has now passed a law to prevent much of the abuse. Were gun manufacturers “unfairly” targeted for suit? Sure, some were, and it cost them millions and millions of dollars in legal fees alone (which they will never be able to recover, even when found not liable). But as others have pointed out, other industries also are unfairly targeted, and will continue to face meritless lawsuits (and incur significant defense costs). Should we consider tort reform generally, rather than attacking it piecemeal? I suppose that’s a pipe dream. > > Personally, I don’t know whether this law will be effective. It will be interesting to see how the courts interpret it, and how the plaintiffs’ bar tries to work around it. quote …things worked as they ought to: the lawsuits eventually were dismissed, and Congress has now passed a law to prevent much of the abuse. Were gun manufacturers “unfairly” targeted for suit? Sure, some were, and it cost them millions and millions of dollars in legal fees alone (which they will never be able to recover, even when found not liable). But as others have pointed out, other industries also are unfairly targeted, and will continue to face meritless lawsuits (and incur significant defense costs). Should we consider tort reform generally, rather than attacking it piecemeal? I suppose that’s a pipe dream. So you did understand. You understand that it was an agenda to "…cost them millions and millions of dollars in legal fees alone(which they will never be able to recover, even if found not liable) . What I don’t understand is your reluctance to admit its time to start putting an end to this practice. Just because it may (or may not) be more useful if it were broader, to include more industries ,a dangerous precident IMO which is a isn’t a good reason to bash it. This could be a start. ---
**Author:** ![justwannano](https://avatars.discourse-cdn.com/v4/letter/j/7ab992/32.png) [@justwannano](https://boards.straightdope.com/u/justwannano)\ **Post date:** [October 30, 2005, 8:49pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/166 "2005-10-30T20:49:54Z")
quote me Just because it may (or may not) be more useful if it were broader, to include more industries ,a dangerous precident IMO which is a isn’t a good reason to bash it. That should read Just because it may (or may not) be more useful if it were broader, to include more industries ,which is a dangerous precident IMO isn’t a good reason to bash it. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [October 30, 2005, 10:32pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/167 "2005-10-30T22:32:07Z")
> [@Gfactor](#): > > I’m not sure how much help this bill will be. Remember that under the [_Rooker-Feldman_ doctrine](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&linkurl=%3C%25LINKURL%25%3E&graphurl=%3C%25GRAPHURL%25%3E&court=US&case=/data/us/460/462.html) , lower federal courts don’t have jurisdiction to review state court decisions. The only avenue for review of the decisions is through a _writ of certiorari_ in the Supreme Court. Any gun manufacturer that hopes to use this bill as a defense in an “activist” court system (whichis apparently one that permits frivolous cases to proceed) will have to try the case and lose (I’m neglecting the possibility of interlocutory review, of course, but that has its own complications), appeal the case unsucessfully throught the stat court’s appellate system, and then seek discretionary review by the Supreme Court. But prior to this legislation, I don’t think that there was a constitutional question that would have enabled appeal to the SCOTUS. Instead, cases would fight their way through the state system, and would terminate there. Now: > [@Section 3 of the bill](#): > > (a) In General- A qualified civil liability action may not be brought in any Federal or State court. But going back to a point earlier: if this bill is intended to pre-empt state law, then the real danger is (a) activist judges who will ignore the law and (b) more really bad preemption analyses. Here’s a [quick definition of preemption](http://www.ftc.gov/privacy/glbact/conn020607.htm): > [@](#): > > A federal enactment may preempt state law either through (1) express statutory preemption; (2) implied preemption where the intent of the federal law is to occupy the field exclusively (“field preemption”); or (3) implied preemption where state and federal law actually conflict (“conflict preemption”). See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S. Ct. 2404, 2414 (2001); Crosby v. National Foreign Trade Council, 530 U.S. 363, 372-73 (2000); English v. General Elec. Co., 496 U.S. 72, 78-79 (1990). Conflict preemption may be found where the state law frustrates the purpose of the federal statutory scheme or where compliance with both the state and federal laws is physically impossible. See Crosby, 530 U.S. at 372-73; Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 873 (2000); English, 496 U.S. at 79. I think that Section 3(a) of the bill could be either an express statement of preemption, or at worst, implied preemption. And if the new law is held to preempt state common law, you don’t need to reach _Erie_. > [@Gfactor](#): > > Assuming they get there, the gun manufacturers will have to deal with this language from [_Erie_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=304&invol=64#78): > > > [@](#): > > > > Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. > > So state tort reform legislation would be much more effective than federal legislation. And if the state decides that gun manufacturers ought to be liable on the theories described by the bill, why should Congress have the power to overrule them. Madison’s proposal to give Congress the power to negate state laws was rejected, after all. _Compare_, [http://www.classbrain.com/artteenst/publish/article\_34.shtml](http://www.classbrain.com/artteenst/publish/article_34.shtml) (Article 6 of Virginia Plan included negative on state laws) \*with \* [http://www.house.gov/Constitution/Constitution.html](http://www.house.gov/Constitution/Constitution.html) (no negative on state laws included in constitution). So explain to me why we need to go to _Erie_? As you will recall, _Erie_ involved a railroad’s duty to a person walking next to the railroad tracks. The railroad argued that Pennsylvania law applied, and that pursuant to Pennsylvania common law, Tompkins’ claim was barred because he was a trespasser. Tompkins said that Pennsylvania had no statutory law on point and therefore federal “general law” ought to apply. Let’s look at the holding of the Court, which was quoted in part above. The entire holding (not the snippet quoted above) is instructive: > [@](#): > > Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. So, again, why are we discussing _Erie_? One last thing, **Gfactor** – curse you for making me read _Erie_ again! > [@Gfactor](#): > > IMO, a better way to deal with frivolous lawsuits is to enforce the existing rules against them. Judges already have the power, as you noted early, to dismiss a case for failure to state a claim upon which relief may be granted. They also have the power to sanction an attorney for filing a frivolous lawsuit. They generally do neither. Maybe we should devote some time to figuring out why not? Agreed, and the only thing I’ve come up with is a _Conley v. Gibson_ rationale, that something smells in Denmark and judges are loathe to dismiss a case before discovery. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 31, 2005, 3:15am UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/168 "2005-10-31T03:15:49Z")
> [@Campion](#): > > But prior to this legislation, I don’t think that there was a constitutional question that would have enabled appeal to the SCOTUS. Instead, cases would fight their way through the state system, and would terminate there. I agree. Which, IMO, is as it should be. But besides that, if the purpose of the bill is to insulate gun manufacturers from state courts that are activist, in the sense that they will not dismiss tort claims even though they are frivolous (which normally means not supported by existing law or a reasonable argument for modification thereof), the statute is really a terrible failure. As you have pointed out, the same courts that are currently ignoring state law can ignore federal law with impugnity. If the trial court allows the case to go forward, either the state appellate system will determine that the claim is really a valid one (and therefore not frivolous at all) or the state appellate system will reverse the trial court. Gun manufacturers will spend just as much money defending the case. I don’t see the possibility that SCOTUS will grant cert and reverse to be a meaningful addition to the rights already in play, except in the most questionable way possible: by displacing state law on the topic and replacing the state’s judgments with federal substantive law and Congress’s judgment. It just doesn’t solve the problem that it claims to be addressing. > [@](#): > > Now:But going back to a point earlier: if this bill is intended to pre-empt state law, then the real danger is (a) activist judges who will ignore the law and (b) more really bad preemption analyses. Agreed. How does the bill solve either problem? > [@](#): > > I think that Section 3(a) of the bill could be either an express statement of preemption, or at worst, implied preemption. Isn’t it a clear case of conflict preemption? If a state says that plaintiff can’t file a case like that. A judge who wanted to comply with state law (assuming that state law permitted the claim to go forward) would not be able to comply with both federal and state law. If state law did not permit the claim, the state’s procedures for handling frivolous claims would frustrate the purposes of the bill unless they were identical. And if they were identical, and the state court system decided that they had been complied with, what then? More to follow [but I have to review a couple of cases first]. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [October 31, 2005, 3:59am UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/169 "2005-10-31T03:59:57Z")
So we’re up to five posts in a row that I can’t understand! 😉 It’s okay really. I’ll leave my understanding at that it is unclear how much this law really accomplishes, but it likely isn’t much. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [October 31, 2005, 4:14am UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/170 "2005-10-31T04:14:24Z")
> [@DSeid](#): > > So we’re up to five posts in a row that I can’t understand! 😉 It’s okay really. I’ll leave my understanding at that it is unclear how much this law really accomplishes, but it likely isn’t much. Sorry! I realized after I posted that my post was a bit too much directed at **Gfactor**. But if I understand where **Gfactor** is going, and I think there’s a 60% chance I do, his argument is two-fold: 1. This law does nothing. 2. This law exceeds the federal government’s authority. I think we pretty much agree about point one (and I think that’s **justwannano** ’s bone of contention), but probably not on the second. I don’t think that this law is particularly well-drafted, and I don’t think it’s going to have the effect it’s being sold as having. Which raises an interesting point: if it fails, who will the NRA rally their constituents to blame? The judiciary, or as has been put recently, the activist bench. The pro-gun lobby’s argument will not be “sorry, blame Congress for writing a bad law,” but instead, “blame the judges who are pro-gun control. Even when there’s a law directly on point, they’ll weasel around it to push their activist agenda.” Now in fairness, Congress has been known to write some sloppy, sloppy laws, while praying that the judiciary will be able to figure it out and make some good law. And the legislative history on this law is pretty extensive, so maybe the judiciary will be able to intuit Congress’s intent. But it wouldn’t surprise me if this is just another set-up to blame the judiciary. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 31, 2005, 5:04am UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/171 "2005-10-31T05:04:13Z")
> [@Campion](#): > > And if the new law is held to preempt state common law, you don’t need to reach _Erie_. I think Erie is quite instructive. In _Erie_, the court made clear that Congress lacked the power to dictate state common law by statute. > [@](#): > > Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. The _Erie_ Court so ruled because it was reversing _Swift v. Tyson_, which relied on a construction (albeit a twisted one) of the Rules of Decision Act. The Court was very certain that Congress could not declare substantive rules of common law. Gun liability cases are usually based on state common law, and it is difficult to come up with a reasonable construction of the act that does have it declaring substantive state law. Take a look at the definition of > [@](#): > > ``` > (5) QUALIFIED CIVIL LIABILITY ACTION- > > (A) IN GENERAL- The term `qualified civil liability action' means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include-- > > (i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted; > > (ii) an action brought against a seller for negligent entrustment or negligence per se; > > (iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including-- > > (I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or > > (II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code; > > (iv) an action for breach of contract or warranty in connection with the purchase of the product; > > (v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or > > (vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26, United States Code. > > (B) NEGLIGENT ENTRUSTMENT- As used in subparagraph (A)(ii), the term `negligent entrustment' means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others. > > ``` The statute picks and chooses among state law claims that may or may not be brought. Of course, one could try to read it so that it does not declare substantive rights. 1. You could read it as saying that irrespective of whether a plaintiff has a right to sue under state law, as a matter of procedure, gun manufacturers are simply exempt from suit. Two problems with this really. First, it doesn’t really make sense of the substance of the statute. And second, wouldn’t such a construction be a violation of due process? Under this construction, we admit that the plaintiff has a state law right (a property right) to sue, but under federal law, is being deprived of the right without due process. The plaintiff is not even allowed into court. 1. You could read it as establishing federal substantive rights. If this were the case, the part of \*Erie \* that talks about “matters governed by the Federal Constitution or by acts of Congress,” would govern, and \*Erie \*would be inapplicable. But > [@](#): > > (C) RULE OF CONSTRUCTION- The exceptions enumerated under clauses (i) through (v) of subparagraph (A) shall be construed so as not to be in conflict, and no provision of this Act shall be construed to create a public or private cause of action or remedy. seems to contradict this interpretation. More important, \*Erie \* underscores that state substantive law is unquestionably an area of traditional state concern. [_US. v Morrison_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-5) (fact that matter regulated was a matter of traditional state concern was relevant in commerce clause analysis); _And see_, [_Gonzales v. Raich_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-1454), (Noting that the statute involved in Morrison created a remedy that was enforceable in both state and federal courts, and generally depended on proof of the violation of a state law). I agree that the strict holding of \*Erie \*(federal courts sitting in diversity jurisdiction may not create federal common law) does not control. But the \*Erie \* court’s words are instructive. More broadly, \*Erie \*embodies the principle that Congress should stay out of the state law business. Could Congress enact a law that: 1. Grants a federal cause of action against gun manufacturers; 2. Completely preempts state laws on gun manufacturer liability; and 3. Does not permit suits for the criminal actions of third parties? That is a harder question. But this law does not create federal rights, it abolishes state law causes of action. That’s different, at least as I read the cases. I was going to analyze _National League of Cities_, _Garcia_, and _New York v. United States_, but I will have to re-read them after I get rid of this headache. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 31, 2005, 5:42am UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/172 "2005-10-31T05:42:28Z")
> [@Campion](#): > > But if I understand where **Gfactor** is going, and I think there’s a 60% chance I do, his argument is two-fold: > > 1. This law does nothing. I wish it were that easy. Certainly some judges might follow the statute. As I understand it, some states have not addressed the issue of manufacturer liability for third party crimes yet. A non-activist judge in one of those states no longer needs to research state law in order to know the legal result. Of course this assumes the bill is constitutional. Regardless, a judge who is willing to ignore clear state law has no greater incentive to obey federal law. So it does something. But it doesn’t do what they say it does. It does both more and less. Can we expect it to convert activist judges? I can’t see how it begins to accomplish that goal. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [October 31, 2005, 3:13pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/173 "2005-10-31T15:13:47Z")
_Erie_ doesn’t apply; the statute does not declare what state substantive law is, it preempts state law. If your argument were correct, any preemption argument would go like this: 1. Congress passed a law preventing X. 2. Alabama has a law permitting X. 3. Congress intended to preempt state law. 4. Therefore Congress is saying what the law is in Alabama. 5. This is declaring state substantive law. 6. Therefore it is beyond Congress’s power. 7. Therefore Congress’s law violates _Erie_. This isn’t how it works, however. In broad terms, _Erie_ requires us to consider whether a state rule is procedural or substantive before applying it in a federal court. That’s not applicable here. > [@Gfactor](#): > > The statute picks and chooses among state law claims that may or may not be brought. Of course; the statute says that certain claims are barred. > [@Gfactor](#): > > Of course, one could try to read it so that it does not declare substantive rights. > > 1. You could read it as saying that irrespective of whether a plaintiff has a right to sue under state law, as a matter of procedure, gun manufacturers are simply exempt from suit. But since we’re all rational people, we won’t go there. It isn’t procedural, it’s substantive because it eliminates a legal theory as a basis for a claim for relief. > [@Gfactor](#): > > 1. You could read it as establishing federal substantive rights. If this were the case, the part of \*Erie \* that talks about “matters governed by the Federal Constitution or by acts of Congress,” would govern, and \*Erie \*would be inapplicable. That’s it: this is an exercise of Congress’s power, and whether Congress has overstepped its bounds is a constitutional issue, not an _Erie_ issue. > [@Gfactor](#): > > But > > > [@](#): > > > > (C) RULE OF CONSTRUCTION- The exceptions enumerated under clauses (i) through (v) of subparagraph (A) shall be construed so as not to be in conflict, and no provision of this Act shall be construed to create a public or private cause of action or remedy. > > seems to contradict this interpretation. No. That section simply states the rules of construction: first, that when a court interprets the statute, it should do so in such a fashion as to find that clauses (i) through (v) don’t conflict, so that the court doesn’t write out part of the statute when it figures out how poorly it’s written. But I think it’s the second part that’s troubling you, but all that says is that this statute does not create a new cause of action (i.e., it grants no right to sue that was not already there before), and it does not create any new remedy (i.e., you’re stuck with the remedies you had before). This does not implicate _Erie_. Bottom line: citing to _Erie_ is intriguing, but doesn’t add to the analysis. The question is whether this statute oversteps Congress’s authority under the commerce clause. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 31, 2005, 3:22pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/174 "2005-10-31T15:22:50Z")
My point is simply that the \*Erie \*court said that Congress lacked the authority to dictate state common law. I agree it was dicta. I’ve seen nothing to indicate that the court will abandon its dicta in _Erie_. Moreover, \*Morrison \*, \*Lopez \*, and even \*Raich \* can be easily harmonized with the \*Erie \*dicta. So yes, \*Erie \* doesn’t apply, but it’s language and its rationale are helpful in evaluating the scope of Congress’s police power and its relationship to state police power. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 31, 2005, 3:27pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/175 "2005-10-31T15:27:49Z")
> [@Campion](#): > > The question is whether this statute oversteps Congress’s authority under the commerce clause. We agree on this. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [October 31, 2005, 3:30pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/176 "2005-10-31T15:30:24Z")
> [@Gfactor](#): > > We agree on this. Don’t tell the others, but I think it does. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 31, 2005, 3:39pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/177 "2005-10-31T15:39:09Z")
> [@Campion](#): > > Don’t tell the others, but I think it does. Meet me at the rendezvous. We need to talk. 😉 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 31, 2005, 5:30pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/178 "2005-10-31T17:30:27Z")
> [@Campion](#): > > _Erie_ doesn’t apply; the statute does not declare what state substantive law is, it preempts state law. If your argument were correct, any preemption argument would go like this: > > 1. Congress passed a law preventing X. > 2. Alabama has a law permitting X. > 3. Congress intended to preempt state law. > 4. Therefore Congress is saying what the law is in Alabama. > 5. This is declaring state substantive law. > 6. Therefore it is beyond Congress’s power. > 7. Therefore Congress’s law violates _Erie_. Not sure I agree with this. I have actual work to do right now, so I’ll let it incubate, and get back to you when I get a minute. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [October 31, 2005, 7:38pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/179 "2005-10-31T19:38:55Z")
At the very least, it stops federal legislation-by-lawsuit, see Andrew Cuomo and Smith-Wesson. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 31, 2005, 10:56pm UTC](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189/180 "2005-10-31T22:56:02Z")
> [@Campion](#): > > the statute does not declare what state substantive law is, it preempts state law. It says what state law can’t be without creating any positive federal law–it declares what state law can’t be. It’s not part of any sort of over-arching regulatory scheme. It simply prohibits state (and federal) courts from deciding cases in the traditional way. Can you identify any other provision that does the same thing? And I’m not sure why you are so focused on preemption. Obviously, to the extent the statute is constitutional and it displaces state law, it prevails. If your argument were correct, any preemption argument would go like this: 1. Congress passed a law preventing X. 2. Alabama has a law permitting X. 3. Congress intended to preempt state law. 4. Therefore Congress is saying what the law is in Alabama. [/quote] Not so. Congress can certainly, as we saw in _Raich_, write federal laws that prohibit what state law permits. In _Raich_, for example, the federal law prohibitted (with minor exceptions) the possession of marijauna. State law said it was ok to possess it for medical reasons. The Court said that the federal law did not exceed Congress’s commerce power. The Court did not rule the state law inoperative–it just said that the feds could enforce the federal law despite a state law permitting the conduct. This bill is broader than that. It says that states can’t hold gun manufacturers liable for third party crime–under state law. That is a horse of a different color. It is reminscent of (note I do not claim that these cases control here) cases like [_New York v. United States_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=505&invol=144): > [@](#): > > even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. > [@](#): > > The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce. Here Congress is effectively ordering state courts to dismiss claims not based on any positive federal law, but on a prohibition against state laws. > [@](#): > > A qualified civil liability action that is pending on the date of enactment of this Act shall be immediately dismissed by the court in which the action was brought or is currently pending. Again, the cases are not directly on point, but the analogy is there. Where does Congress get the authority to order a state court to dismiss a case? > [@](#): > > That’s it: this is an exercise of Congress’s power, and whether Congress has overstepped its bounds is a constitutional issue, not an _Erie_ issue. \*Erie \*is a constitutional issue. I think we agree that Congress has exceeded its power here. The question is whether it did so in one way or many. [Previous page](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189.md?page=8) [Next page](https://boards.straightdope.com/t/protecting-u-s-gun-manufacturers-from-lawsuits-good-or-bad/327189.md?page=10)