We're All Federalists (Sometimes)

Speaking of a new federal firearms law, someone said the following: "The legislation violates federalism and separation of powers constraints ...."  Was it someone arguing against the Brady Act, which imposed a federal waiting period on all handgun sales.  Perhaps it was someone arguing the federal "assault weapons" ban, which outlawed hundreds of firearms?  My guess is that the speaker is Robert Levy of the Cato Institute, or Second Amendment god Stephen Halbrook.  Bzzt - wrong!  The speaker was none other than Sayre Weaver, legal director of the Educational Fund to Stop Gun Violence of Washington.  The context?

Ms. Weaver was criticizing a new federal law that immunizes gun makers from being sued.  State and local governments in blue states had begun suing gun manufacturers, and the lawsuits threatened to drive the gun industry out of business.  In other words, lawsuits in blue states would keep guns out of red states.  Whether the Protection of Lawful Commerce in Arms Act of 2005 violates federalism is an interesting issue: here is a link to the debates.  What is amusing to me is that those who intend to challenge the law are now friends of federalism.

Where was Ms. Weaver and her pro-gun-prohibition organization during the Brady Act debates?  Was she a federalist then?  Looking at her organization's website, I see that they support federal regulation of everything firearms-related, except federal regulation that would end gun-related lawsuits.

Poor federalism! 

 

Comments

[KipEsquire]

There is no such thing as a "state's right" to permit frivolous lawsuits. Instead, one should be thinking in terms of a federal due process right not to face a frivolous lawsuit.

Never be too eager to worship the false god of federalism.

[Mike]

There is no such thing as a "state's right" to permit frivolous lawsuits.

Aha, Kip, but you're begging the question. Namely, as the common law has developed over hundreds of years, it has been left to the states to determine what is a "frivolous" lawsuit. In California law allows a lawsuit, well, it's per se not frivolous, right? At least under California law. So the frivolous lawsuit argument doesn't work with me, since a lawsuit grounded in the law of the jurisdiction is per se not frivolous - perhaps imprudent or wrong-headed, but not frivolous.

This doesn't mean I don't support the federal law. I'm sympathetic to the law, since there is a very clear nexus between lawsuits in state A eliminating a product from state B. (IOW, we could apply something much higher than rational basis and still uphold the law.) Indeed, the Commerce Clauses amends federalism principles to the extent that federalism principles would allow State A to drive a product entirely from the interstate market.