Petition for writ of certiori...
This is the petition for writ of certiori to the Supreme Court. It presents the following questions:The answers that our side wants should be obvious. The District's Strict Liability Statute should be ruled unConstitutional because the District simply does not have the authority to regulate the matters that Statute seeks to regulate. States can regulate commerce within their borders; the Federal Government can regulate interstate commerce; the District is entirely a creature of the Federal Government and has no authority outside the District of Columbia itself. It certainly cannot usurp the power of Congress. It's remotely possible that a twisted interpertation of the enabling legislation for the District's government might be construed to delegate some of Congress' interstate regulatory power within that government, but I doubt it -- and if there is such a tortured interpertation possible, it can't possibly have been intended. So how does the District expect to prevail, if their Statute is unConstitutional on its face? Simple: remember how they view the case. They believe that the firearms manufacturers are maliciously and negligently distributing firearms to the areas surrounding the District (primarily Virginia; Maryland's firearm laws are rather tight already), deliberately oversupplying those markets in order to ensure a ready supply of firearms to the criminal market within the District itself. If you assume malice, it becomes a different question. Consider an individual who sets up a cannon in Virginia and regularly fires cannonballs across the border into the District. It's perfectly legal (at least in this hypothetical) to fire the cannon in Virginia, so long as you don't then damage someone else's property... in Virginia. But since the cannonball was fired at the District, the damage it does is within the District's jurisdiction. And if they can't arrest the person shooting the cannon in Virginia, they can make him liable for the damage if his cannonballs actually damage anything. That's the theory that the District is working from, or at least the only one that seems to make any sense. Manufacturing firearms, to the District, is an action that involves actual malice or at least negligence. Once manufactured, distributing those firearms to dealers loads the cannon; and private sales propel the firearm into the private sector, where they may well cross the border and do harm. In fact, the District considers the very presence of the firearm within its borders to inevitably result in harm. That's how they are trying to push the causal chain backwards to reach the manufacturers; if it is inevitable that manufacturing a firearm leads to harm, then the intervening events are nothing more than successive elements in some Rube Goldbergian contraption with a criminal use as the final result. This is something of a relevation to me; I feel that I finally understand how the lawyers arguing these cases for the gun control organizations are thinking. It's such a foreign viewpoint that I'm not surprised it took me so long to pick up on it. And believe me, looking out at the world through this particular viewpoint is not pretty. At any rate, so long as you are actually talking about cannonballs shot across a border, it doesmake a certain amount of sense. The cannonball is fired in Virginia and the laws of physics dictate what happens. The problem, of course, is that the idea of shooting cannonballs is much more direct causation than anything actually being alleged in this case; the flight of a cannonball, governed by the equations of physics, is not even remotely comparable to the often-lengthy chain of sales, thefts, and criminal acts involved in getting a legally-manufactured firearm into the hands of a criminal within the District. The petition calls out a few points of the Strict Liability Act worth examining, especially since the earlier filings that I have posted do not have much discussion of this aspect. In particular, the Act contains an exception for "assault weapons" originally sold to law enforcement, as well as for "assault weapons" used by criminals to injure themselves. Neither exception applies to "machine guns" (remember, the District considers any magazine-fed semiautomatic to be a machine gun). This leads to the possibility of finding, say, Beretta, liable for the medical care applied to a criminal who shoots himself with a police offcer's stolen firearm while trying to murder said police officer. I can't think of any reason to apply the exception only to "assault weapons" but not to "machine guns", except simple error in drafting the law. Still, that is what the law says, and clearly that can lead to absolutely absurd results. The exception itself was clearly intended to allow manufacturers to continue to sell to police officers, since the District would undoubtedly prefer not to face its disarmed peasantry without a substantial disparity in armament. Under the circumstances I am suprised any manufacturer would agree to sell to anyone in the District at all, but that's the free market for you... The petition proceeds to review the original Superior Court decision holding the Strict Liability Act unConstitutional. In short, it is unConstitutional because:
One way that the petition seeks to reframe the issue is by suggesting that the balancing test between the local benefits of the statute and the burden on interstate commerce (from Pike, above) should not be applied at all. The Appeals Court applied that test and found that the local benefits outweighed the burden (a result that is absurd on its face -- but oh well; that's what you get when you allow a court to make a value judgement). The petition points out that when a statute "directly regulates" commerce in other States, the Court doesn't bother to apply a balancing test; it merely strikes down the statute. If successful, that would avoid the balancing test altogether. That would require viewing the Strict Liability Act as direct regulation, something that isn't quite obvious on its face. Remember that the Act purports to assign liability for the consequences of criminal acts that occur inside the District to parties operating outside the District. It is only in combination with the District's draconian gun control laws that the intent of the Act becomes clear; it must be intended to affect interstate commerce because there is (almost) no legal intrastate commerce in firearms! And, in truth, the industry has already cited the statement of intent for the law, which explicitly speaks of regulating commerce activity outside the District. Denying that is nothing more than partisan handwaving. The same basic argument is applied to the Due Process clause as well, this time citing BMW v Gore. That case stated: "each State has ample power to protect its own consumers, [and] none may use the punitive damages deterrent as a means of imposing its regulatory policies on the entire Nation." The DC Appeals Court distinguished from that case by claiming it applied only to punitive damages, not compensatory damages. The point is also made that even if the Act is intended to remedy injuries occurring within the District's jurisdiction, that is not enough to save it if the practical effect of the Act is to control conduct within the boundaries of the State. The petition then makes the case that the lower courts are "divided and confused" about how, and whether, to apply the "direct regulation" test. That's only of tangential interest to us, so I will not analyze it. The same applies to the jurisdictional argument. I would not be surprised if the Supreme Court chooses to take this case. If they take it, I think the industry has an excellent chance of winning... depending, of course, on exactly who is sitting on the Court that hears the case. Rehnquist would probably have been a solid voice on our side; Roberts is supposed to be similarly strict on commerce clause questions (confirmation-hearing waffles about Lopez aside). No hints of a replacement for O'Conner, but we are unlikely to see Bush nominating anyone at serious risk of waffling on this issue. That result, if we get there, might be the killing blow to the various other pending lawsuits. That will depend on exactly how those lawsuits are structured. The District's Strict Liability Act, handgun ban, and its pseudo-State status make it somewhat unique among plaintiffs. However, those are only peripheral to this case, and a Supreme Court precedent on the permissibility of liability might at the least require future lawsuits to impose liability only on firearms sold within the appropriate jurisdiction. That said, the Supreme Court is in flux right now, and rulings are likely to be unpredictable for the next few years. |
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