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Scholarship Highlight: Regulatory Federalism and Firearm Externalities

  • Date:
  • February 20th, 2023

By: Andrew Willinger

Today’s post highlights two new pieces of firearms law scholarship.  First, in a new article forthcoming in the Florida Law Review, Hillel Levin and Timothy Lytton argue that gun industry regulation under PLCAA must accommodate principles of federalism and separation of powers by preserving state autonomy in regulatory choices.  Second, former Center research assistant Noah Levine has published a Note in the Duke Journal of Constitutional Law & Public Policy arguing that the public carry of firearms can create a "modern arms race" with substantial negative externalities.

Hillel Y. Levin and Timothy D. Lytton, The Contours of Gun Industry Immunity: Separation of Powers, Federalism, and the Second Amendment, Florida Law Review, Vol. 75, 2023 (Forthcoming)

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.

Noah Levine, The Spirit of Gun Laws, 18 Duke Journal of Constitutional Law & Public Policy Sidebar 241–265 (2023)

Abstract:

The firearms debate in the United States often pits public health against freedom. This false dichotomy implies that gun laws, even wise ones, inherently erode individual liberty. Indeed, this appeal to liberty finds fertile ground in the United States, where many Americans intuitively reject any incursion on their freedom. Yet this one-sided conception of liberty is, at best, incomplete: while the government can certainly encroach on our freedom, so too can our fellow citizens.

A historically grounded conception of liberty in the United States includes the sense of security that fosters self-expression without fear of arbitrary constraint. That is, when citizens feel safe, they can properly exercise their will. But this tranquility doesn't exist naturally. To achieve it, the government must exercise a monopoly of force and ensure that citizens do not fear other citizens. Only then can people act and express themselves without fear of reprisal.

Yet when civilians openly wield their guns in public, they impose an arbitrary constraint on others that represses others' ability to exercise their will. Armed goers change the risk calculations for their fellow citizens—often forcing them to avoid areas where guns are present or arm themselves in self-defense. As this Note discusses, each of these options begets a compounding harm to our liberty. And the resulting proliferation of civilian defensive arms in the United States—the modern arms race—does not represent peace, only détente.

By this understanding, open carrying itself subverts liberty, and its regulation upholds it. Although an individual's arms may constitute a productive solution to his own fear, the externalities on others are substantial. The state must prevent these costs to the liberty of others by regulating those wielding firearms in public spaces.