More Legislation from the Bench

Just as we went to press, an Indiana judge ruled that the city of Gary’s frivolous lawsuit could proceed in spite of the new federal law that prohibits such suits. Named in the suit are 16 firearm manufacturers, including Smith & Wesson, Colt, Browning, Ruger, and Beretta. Lake County Superior Court Judge Robert A. Pete declared that The Protection of Lawful Commerce in Arms Act, enacted a year ago, is unconstitutional.

A spokesman for the National Shooting Sports Foundation (NSSF) called the ruling "a badly flawed constitutional analysis" and promised an appeal. The lawsuit, originally filed in 1999, seeks to blame firearm manufacturers for gun crimes committed in Gary, Indiana. The manufacturers had moved to have the suit against them dismissed based on the Act. During congressional debate on the measure, Gary’s suit was cited as an example of precisely the sort of frivolous lawsuit that the bill was intended to stop.

Nevertheless, Judge Pete ruled that the Act is unconstitutional, claiming it violates the city’s constitutionally protected due process rights and violates the separation of powers between the judicial and legislative branches of government. "The court’s ruling that the city of Gary has "due process" rights is badly flawed. It’s black-letter law that municipalities do not have due process rights," said Lawrence G. Keane, senior vice president and general counsel of NSSF.

Equally at odds with well-established law, Keane said, is the Indiana court’s finding that the Act violates separation of powers. "Congress is well within its power to regulate interstate commerce and preempt state lawsuits. Every other court in the nation that has examined the law has concluded it is perfectly constitutional. We’re confident this clearly erroneous decision will not stand up on appeal, said Keane.

Gary’s suit served as a catalyst for passage of an Indiana state law in 2001 that would have prohibited the filing of Gary’s suit if it was filed today. That law was not an issue in this week’s ruling because, unlike the federal Act, it does not apply to cases pending at the time it was enacted. Prior to the passage of the federal law, over 33 states had enacted similar laws to block suits against gun makers for the criminal misuse of firearms.

Essentially, what this means is that a county judge from Indiana thinks he has veto rights over 33 state legislatures (including his own state’s) as well as over the U. S. House and Senate. I can’t help but be reminded of an old joke. Question: "What do you calla lawyer who’s not smart enough to succeed in private practice?" Answer: "Your Honor." I’ll keep you posted on this one. Editor Keith Lawrence Technical