In fact, the legislation is just one more in a long list of statutes that some in Congress trumpet, oblivious to any constitutional restraints.
No doubt, Rep. Chris John (D‐La.) is correct when he warns that, “Frivolous lawsuits against gun manufacturers jeopardize a legitimate, legal business that is worth billions of dollars to our national economy.” But not every national problem is a federal problem. The Constitution establishes a government of limited powers. There is no federal power of the kind that the House and Senate bills would institute. Quite simply, the power to control frivolous lawsuits belongs to the states. Those who would have it otherwise, including the NRA, are asking for trouble. When Congress’ authority to regulate commerce is misused to impose federal rules that restrict state gun lawsuits, we should not be surprised that it will also be misused to impose federal rules that restrict gun possession and ownership.
Seven years ago, proponents of limited government concluded from the Supreme Court’s opinion in United States v. Lopez that the Commerce Clause of the Constitution reached only commercial activities, which might include a variety of economic undertakings but was not to be unleashed from the operative word “commerce” to cover all manner of human conduct. On that basis, so we thought, the Court had put an end to a statute making it a federal crime to possess a gun in a school zone. It was not to be. Congress simply revised the measure, adding boilerplate findings that interstate commerce was substantially affected by school violence.
Indeed, when Congress bothers episodically to pretend that it has constitutional authorization for its laws, the Commerce Clause is more often than not the cited rationale. Never mind that the large majority of federal statutes have nothing to do with commerce. Congress has shamelessly distended the Commerce Clause — preferring to posture on “hot button” issues like gun violence and church arson — to permit the regulation of anything and everything.
Originally, the purpose of the Commerce Clause was functional: to secure the free flow of commerce among the states. That means Congress may act only when actual or imminent state regulations impede that purpose, or when it’s clear that uniform national regulations are essential toward that purpose. Even then, Congress’ power ought properly extend no further than to regulate: (1) channels and vehicles of interstate commerce (such as waterways, airways, and railroads); (2) discrimination by a state against out‐of‐state interests (like restrictions on imported goods); and (3) attempts by a state to exercise sovereignty beyond the state’s borders (for example, state rules governing national stock exchanges, telecommunications, banking, and broadcast or Internet advertising).
The fundamental principle is this: No matter how worthwhile an end may be, if there is no constitutional authority to pursue it, then the federal government must step aside and leave the matter to the states or to private parties. The president and Congress can proceed only from constitutional authority, not from good intentions alone. If Congress thinks it necessary to expand its powers, the Framers crafted an amendment process for that purpose. But too often, rather than follow that process, Congress has disregarded the limits set by the Constitution and gutted our frontline defense against overweening federal government.
After seven decades, the Rehnquist Court has begun to rein in federal regulatory power asserted under the Commerce Clause. But the Court’s edicts have left too much wiggle room for a Congress bent on enacting regulations that appease politically connected constituents. That’s not what federalism is all about. Federalism is a system of dual sovereignty, of divided authority, with the states checking excessive power in the hands of the federal government and vice versa. Most particularly, federalism limits the federal role to those few and defined powers enumerated in the Constitution. Nowhere in that document — or in its “emanations and penumbras” — is there a federal power to set rules that control state lawsuits against gun makers. Those lawsuits are baseless and extortionate, but they are not the business of Congress.