Why Congress Should Pre-Empt Most Lawsuits Against Gun Manufacturers:

Still more evidence comes 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 (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):

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. "Machine gun" means a gun that shoots more than one round per trigger pull; that's the nearly universal definition. Semiautomatic guns aren't machine guns.

What's more, this definition labels as a machine gun the overwhelming majority of all semiautomatic guns, since even those semiautomatic guns that come with a smaller magazine can generally be used with a larger magazine -- the only "conversion" required is simply slapping in the bigger magazine. But in any event, regardless of what labels the D.C. law uses, it likely covers about half or more of the guns that are sold throughout the country, including most standard handguns (other than revolvers) and most semiautomatic rifles.

And this law imposes liability for manufacturing and distributing semiautomatic weapons even if the manufacturers and dealers are distributing the guns far outside D.C., in a jurisdiction where the guns are perfectly legal -- and semiautomatic guns are legal nearly everywhere in the U.S. 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 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 generally. (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.

UPDATE: My original post said that Congress "represents the nation as a whole"; reader Elliot Reed pointed out that Congress of course doesn't represent D.C. Nonetheless, whatever one thinks of the merits of D.C. residents' not being represented, that decision is a deliberate judgment in our Constitution; and even if it's wrong for the representatives of 99.8% (I set aside here the territories) to make rules for 100%, surely having representatives of 0.2% make rules for 100% is not the right remedy.

FURTHER UPDATE: I realize that there are also other arguments for federal action, for instance that such lawsuits jeopardize the right to bear arms, and thus that it's legitimate for Congress to protect this right. My point here is limited to the federalist concern about one U.S. jurisdiction effectively banning, restricting, or taxing conduct that's perfectly legal in other jurisdictions. (I speak here of the propriety of the action, and not just its mere constitutionality under either the Commerce Clause, the Federal District Clause as to D.C., or conceivably the Fourteenth Amendment Enforcement Clause as to states.)

YET FURTHER UPDATE: When first writing this, I foolishly missed the fact that the law covers nearly all semiautomatics. Instead, I wrote only that it applies to those designed to be used with large magazines -- this even though my post last year on this statute got it right. The theoretical point is the same, of course; but it's good to keep in mind just how practically broad the law is, and how it makes potentially actionable probably about half or more of all nationwide gun sales. I've therefore corrected the post accordingly; thanks to a reader for reminding me of this.

Federal Preemption of Some Product Liability Lawsuits, and States' Rights:

D.C. law holds manufacturers of semiautomatic guns liable when criminals use those guns to commit crimes in D.C., even though the manufacturers made and sold those guns entirely outside D.C. Last week, I complained about this; D.C., I argued, shouldn't be able to impose its policy judgments on behavior in other states:

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. . . .

[I]t'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.

This reasoning, of course, would apply equally to other products, such as alcohol (which I mentioned in my original post) or whatever else.

But what about states' rights, some readers asked? Here's one message that I got:

[A]llowing federal preemption of such [product liability] claims would vastly expand federal power into an undisputed traditional domain of state law — not the kind of thing I expected a defender of states' rights (such as yourself) to say.

My position, though, is all about protecting states' rights to govern behavior within their own states. I do generally think that on many (though not all) issues Oregonians should be deciding what's allowed in Oregon and Tennesseans should be deciding what's allowed in Tennessee. Rules of behavior in Tennessee should generally be set by the Tennessee Legislature, not the federal Congress.

But rules of behavior in Tennessee shouldn't be set by the California Legislature or the D.C. City Council, either. And that's precisely what the D.C. statute that I faulted does: By imposing tort liability on behavior in Tennessee, it operates as a tax, a regulation, or even (practically) a prohibition on what Tennesseeans can do in Tennessee.

It's a violation of states' rights, not a vindication, for one state to impose such regulations — whether framed as tort liability or otherwise — on behavior in another state. (Let's treat D.C. as a state for these purposes, since my call for federal preemption would apply equally if it had been a state.) Likewise, it's a vindication of states' rights, not a violation, for Congress to step forward to protect the rights of other states against this sort of unilateral imposition by D.C. law, or, for instance, by California law that is interpreted as holding Glock liable for Glock sales practices in Washington State.

Finally, I would caution against appeals to tradition here. It's true that most tort law has traditionally been state law; but that's partly because historically most tort liability has involved either entirely intrastate behavior or behavior that's largely intrastate. In particular, I don't think there has been a long tradition of tort law imposing liability on defendants' purely out-of-state behavior in the first place, especially when defendants' behavior was lawful in the state in which it took place.

Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what's "traditional" here.