Congress Bans Abusive Anti-Gun Lawsuits:

At approximately noon, eastern time, the House of Representatives voted to pass S. 397, 283-144. The bill, known as the "Protection of Lawful Commerce in Arms Act," has been endorsed by the White House, and now goes to the President for his signature.

The bill is the culmination a decade of tort reform work, aimed at addressing the problem of abusive lawsuits against gun manufacturers. The bill is an excellent exercise of the congressional power over interstate commerce, for precisely the purpose for which Congress was originally granted that power: the billis necessary and proper to stop local governments from interfering with interstate commerce, including by attempting to use a verdict in a single state court to impose national firearms controls which have been rejected by Congress and by all state governments.

S. 397 is also a proper exercise of Congressional power under section 5 of the 14th Amendment, to prevent local governments, including local courts, from infringing the Second Amendment rights (and the parallel state constitutional rights in 44 states) which are guaranteed to all law-abiding Americans.

In addition, the bill is also a necessary and proper exercise of the Congressional war power, because the civilian firearms industry is now, and always has been, essential to the production of firearms for the military. Without a robust civilian firearms industry, manufacturers who had to produce only for a military or police market would have to charge much higher prices, and would innovate far less. Almost every gun ever used by the U.S. military was originally developed for the civilian market. Accordingly, the Department of Defense stated that is "strongly supports" S. 397 because the bill "would help safeguard our national security by limiting unnecessary lawsuits against an industry that plays a critical role in meeting the procurement needs of our men and women in uniform."

Thirty-four states had already enacted their own laws to prohibit such suits, but Congressional action was necessary to ensure that a single court in one of the hold-out states did not attempt to destroy the U.S. firearms industry, or to impose the will of a single judge as a national system of firearms restrictions.

The Brady Center, the instigator of the abusive suits, has already expressed its intention to fight the new federal law in court. Significantly, no court anywhere in the United States has ever ruled in favor of similar challenges to the state statutes restricting abusive lawsuits against Second Amendment rights.

The Senate added two unrelated items to S. 397, both of which have caused concern among some Second Amendment activists:

First, the bill increases the already severe mandatory minimum sentences for use of armor-piercing ammunition in a violent or drug trafficking crime. Mandatory minimums are generally a bad idea, but since actual armor-piercing ammunition, as defined by federal law, is very rare, the practical effect of the new sentences will be very small.

Second, the bill requires all licensed firearms dealers to include a locking mechanism with each handgun they sale. Almost every American manufacturer already includes a lock (either an internal lock or, more commonly, a cable lock or trigger lock), with every new gun.

Accordingly, the main effect of S. 397's lock provision will be to force sellers of used handguns to raise their price by several dollars to provide customers an item that the customer may not need. (For example, the customer may already own a gun safe, or may plan to keep the handgun always ready for self-defense, so that it should not be locked up.)

The bill also provides civil immunity for persons who use locking devices. There have been a few state court cases in which guns were effectively treated as ultra-hazardous products, and gun owners whose guns were stolen and used in a crime were found civilly liable, even though their guns had been stored in a safe.

Both of the extra provisions have slippery slope risks: Senator Kennedy and a significant number of Senators favor expanding the definition of "armor-piercing" ammunition so as to include the vast majority of conventional rifle ammunition. And several states have enacted dangerous laws which require handguns to be locked up, and thus inaccessible for emergency self-defense.

However, the future dangers of slippery slopes are far outweighed by the immediate threat posed by abusive lawsuits. On the whole, S. 397 is an immense victory for constitutional rights.

For background on the abusive lawsuit issue, you may wish to read some of the ten articles I've written on the subject, including the 1995 Seton Hall Legislative Journal article which argued that courts should protect the Second Amendment from abusive lawsuits, just as they protected the First Amendment from abusive lawsuits in New York Times v. Sullivan. But even better than judicially-created protection is legislatively-created protection. Today's bi-partisan vote is a tremendous victory for the constitutional rights of citizens, and is the result of Congress exercising its powers for precisely the pro-freedom reasons for which those powers were granted to Congress by the American people.