The Contours of Gun Industry Immunity: Separation of Powers, Federalism, and the Second Amendment

Abstract

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), granting the firearms industry sweeping immunity from civil lawsuits. However, PLCAA immunity is not absolute. This Article demonstrates that both state and federal courts have fundamentally misread PLCAA when adjudicating cases involving the scope of gun industry immunity. Properly understood, PLCAA permits lawsuits against the gun industry so long as they are based on statutory causes of action rather than common law. While broadly preempting state common law claims, PLCAA affords state legislatures autonomy in deciding how to regulate the gun industry within their borders.

Additionally, this Article addresses unresolved questions concerning constitutional limits on gun industry regulation. PLCAA explicitly strikes a balance between three constitutional principles. It safeguards the individual right to keep and bear arms by protecting the gun industry from civil litigation that would unduly curtail civilian access to firearms. It insists that the separation of powers requires that gun industry regulation should derive from legislation not common law adjudication. It affords state governments autonomy in deciding how to regulate the gun industry, recognizing that there are regional differences in attitudes about how to best reduce firearms-related violence. We counsel against interpretations of the Second Amendment’s application to gun industry regulation that would expand the right to keep and bear arms at the expense of other important constitutional principles such as the separation of powers and federalism.

Keywords: Firearms, Second Amendment, Gun Industry, Tort Litigation, Public Nuisance, Product Liability, Bruen, Federalism

JEL Classification: H77, I18, Z18