I am a senior fellow at the Manhattan Institute, with which I have been associated since 1985, and am the author of three books on the American civil justice system. My most recent book, The Rule of Lawyers (St. Martin’s, 2003), published in January, includes a chapter exploring the origins and objectives of the movement seeking to make makers and distributors of guns pay for criminals’ misuse of their wares. I conclude that the gun suits are at best an assault on sound tenets of individual responsibility, and at worst a serious abuse of legal process. Even more ominously, the suits demonstrate how a pressure group can employ litigation to attempt an end run around democracy, in search of victories in court that it has been unable to obtain at the ballot box. Finally, I argue that strong Congressional action to restrict litigation of this type is not only consistent with a due regard for federalism and state autonomy, but is in fact required by it.
Walter K. Olson
April 2, 2003
PROTECTION OF LAWFUL COMMERCE IN ARMS ACT HEARING
BEFORE THE SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES
[Reading the transcript was interesting. At that time, prior to the Heller Decision in 2008, SCOTUS had not definitively stated the right to keep and bear arms was an individual right. This was an issue in the hearings:
Mr. SCOTT. Thank you. In the finding, Mr. Keane, on the finding number one, citizens have a right protected by the second amendment to the United States Constitution to keep and bear arms, I notice it says ”citizens” and not ”a citizen.” there is no individual right in the Constitution to bear arms, is there?
Those were dark days.—Joe]
Even after Heller, I’ve heard politicians say that there is no individual right to own firearms, especially “military style assault weapons”. It is unconscionable that a person can be elected to a political office that requires taking an oath to “preserve, protect, and defend” the constitution, with less knowledge about the real meaning of the constitution than a hight school student used to get in a Civics class.
I must have a faulty copy of the Bill of Rights. The word, “citizen” does not appear anywhere in the Second Amendment I have….
Dark indeed, suppose the same farcical logic were applied to the fourth amendment, which says “people” rather than “a person”. One could incorrectly argue that it allowed for the search or arrest of any individual or an individual’s property without reason but that the detainment of a group or search of jointly owned property required a warrant.
Maybe I’d best not say that too loud. It might give someone ideas.
I’m sure someone has thought of that already and have readied draft laws to take advantage of that confusing thought in the event of an appropriate event that can be used to whip the population into an unthinking frenzy.
Good choice for a look back, Joe. The point I try to add every time the Lawful Commerce in Arms Act comes up is that it could have been just as, and possibly more effective without ever mentioning the words gun, firearm, or ammunition. If a manufacturer or seller faces liability for the wanton misuse of a product that functions as designed, then no industry is safe. Manufacturers of cars that carry criminals to and away from the scene of a crime are just as liable to a trial lawyer chasing deep pockets as a gun manufacturer.
While the LCAA is definitely a good thing, it unfortunately is too limited. It is also, sadly, the only pro-gun legislative achievement of a two-term Republican administration and Senate. Meanwhile, the 1968 Gun Control Act and 1934 National Firearms Act both need reforms regarding “engaging in the business,” and “sporting purposes” language that should be obsolete post-Heller.
After Heller I imagined the “sporting purpose” language and the import restrictions on certain types of guns would be gone in a few years–at most. And yet, the repeal of unconstitutional gun laws is barely noticeable and only by a very few court decisions rather than by concession in the legislative and executive branches.
Thank you Mr. Olsen. You’re about a hundred years late in your realization, but hey; better late than never. Welcome to the club.
“…strong Congressional action to restrict litigation of this type is not only consistent with a due regard for federalism and state autonomy, but is in fact required by it.”
On the other hand; if judges would uphold the law, and above all uphold that Supreme Law of the Land, the U.S. constitution, there’d be no reason to want to restrict litigation with additional legislation. Judges would simply throw out the cases in question, and they’d never see the light of day.
The call is always for additional layers upon additional layers of legislation, each layer of law patching up the violations (covering up the blood and the puss) of the previous layer of legislation, but it is axiomatic that if the original law isn’t being followed and upheld, as written and as intended, then the remedial law, ostensibly intended to support the original law, won’t be followed either.
It’s a game, and so anyone who calls for such remedial legislation really can’t be taken seriously. The “Firearm Owners Protection Act” is of just such a kind. If the second amendment isn’t all the protection firearm owners need, then the system is corrupt. In that case, the corruption must be the primary focus until it is rooted out and eliminated.
Rather than fix the corruption and prosecute and sentence the perpetrators, at best we’ll only see such Band-Aid laws built up, ineffectual layer upon ineffectual layer, each as a short term concession, until no one can make any sense of the jumble. At that point the original law will have been forgotten.
The very purpose and effect of these Band-Aid laws is to secure and cement, in the minds of the People, the insignificance of that original law which was the only thing that ever mattered in the first place.
As a replacement for law enforcement, we now have continuous legislation, with each new layer of law being the sole response to the rampant violations of the previous layers of law.
The result (and as I submit, the only intent there ever was) is the exultation of legislators at the expense of the law itself. In short, the rule of men at the expense of the rule of law.
In short; a Cult-of-Personality. And that’s just what we’ll get. And we’ll cheer its arrival.
“additional layers upon additional layers of legislation”
I call that the “Ptolemaic Epicycle System of Laws.”
As you say, throw another patch on the system rather than admit the first step was wrong.