The Supreme Court, the Gun Industry, and the Misguided Revival of Strict Territorial Limits on the Reach of State Law

Abstract:     
While tort lawsuits against gun manufacturers and sellers have captured much attention in recent years, there is an intriguing constitutional issue arising in the cases that has largely escaped notice. The gun companies build a defense from statements in a line of recent Supreme Court opinions indicating that the dormant Commerce Clause forbids application of a state statute to commerce occurring wholly outside the state's borders. The gun companies contend that it would be unconstitutional for them to be held liable under state tort law for the manufacture or sale of a gun that occurred outside the state. Several courts have accepted that argument, which would dramatically reduce the reach of state authority, while other courts have expressed bewilderment about the lack of clear precedent affirming or rejecting the argument.

This article contends that the Supreme Court should disavow its recent statements about strict territorial limits on the reach of state law. Those statements hark back to a conception of state authority that prevailed throughout the law a century ago but appeared to be dead until the Supreme Court's recent comments revived it. The statements have no support in modern precedent, they arose in part from a Supreme Court opinion's error in citation of authority, and they cannot be correct without rendering unconstitutional a vast number of the products liability and other tort claims that courts hear every day. Lower court decisions trying to follow the Supreme Court's lead on this point have produced only confusion and inconsistency. Strict territorial limits on the reach of state law died long ago for good reasons. The Supreme Court should let them rest in peace. While it ultimately fails, the gun companies' argument highlights the need for courts to clear up the substantial confusion surrounding this important but overlooked constitutional issue.

Keywords: Torts, Gun manufacturers, Gun companies, Gun control, Commerce Clause, Manufacture, Strict territorial limits, Product liability, Strict territorialism, Gun industry, Extraterritorial

JEL Classifications: K10, K13, K23, K41

Accepted Paper Series