Jacob Sullum

But as Manhattan Institute senior fellow Walter Olson, author of The Rule of Lawyers <buy book> <read book review>, pointed out in congressional testimony earlier this month, the lawsuits themselves pose a threat to the balance of powers envisioned by the Framers. "By design and by necessity," he observed, "the antigun litigation campaign is interstate in its anticipated effects." In seeking to set national gun control policy through state courts, the lawsuits usurp the authority of state legislatures and Congress.

Supporters of the lawsuits make no bones about what they're trying to accomplish.

"Litigation is a powerful tool to promote the public's health -- especially when other avenues are stymied," writes Julie Samia Mair of the Johns Hopkins Center for Gun Policy and Research. "An industry, wanting to avoid paying an award or engaging in costly litigation, may voluntarily make its products safer and/or change the way it markets or distributes them."

Notice that it doesn't matter whether the cases have any merit. Judges so far have dismissed most of the gun lawsuits by local governments, but the cost of fighting them, coupled with the possibility of one big judgment, could be enough to persuade the industry to make concessions that would have the same impact as legislation.

Cigarette billboards are a thing of the past not because of a statutory ban (which would have violated the First Amendment) but because eliminating outdoor advertising was part of the price for settling state lawsuits against the tobacco companies. Gun makers, whose financial resources are puny compared to the tobacco industry's, are especially vulnerable to that sort of pressure.

Hence a lawsuit brought in New Jersey can affect the availability of guns in Virginia through a settlement or, if the plaintiffs should manage to win, an injunction. This nationwide impact, an explicit goal of the lawsuits, is a strong justification for congressional intervention, especially given the Second Amendment rights at stake.

The right to keep and bear arms, of course, is one part of the Constitution that Michael Barnes will never even pretend to like.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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