Use the Seventh Amendment to sue bad gunmakers

Last year the Supreme Court issued a major Second Amendment decision striking down New York’s century-old handgun licensing statute. States across the country face years of litigation against gun rights absolutists over the bounds of permissible firearms regulation.

Meanwhile, however, another case working its way through the courts offers hope. That case, National Shooting Sports Foundation v. James, will determine whether victims of gun violence can bring personal injury lawsuits — called “tort” suits in legalese — against gun companies.

In addition to compensating victims, tort suits function as a backup, court-driven form of product safety regulation. The auto industry, for example, spends billions to reduce collision risk on top of what government regulators demand, to avoid paying even more billions in liability judgments. Tort litigation against Purdue Pharma put an end to its reckless promotion of opioids.

Purdue Pharma was sued for failing to take reasonable precautions to make sure its dangerous products did not wind up in the hands of people likely to misuse them. This is a perfectly legitimate tort claim, and ordinarily a similar claim could be made against gun companies.

Unfortunately, when it comes to guns and the law, ordinary rules often do not apply.

In 2005, Congress passed an extraordinary, NRA-backed law — the “Lawful Commerce in Arms Act,” or “LCAA” — to immunize the gun industry against personal injury lawsuits. In response, several states have enacted legislation attempting to get around the LCAA. NSSF v. James involves New York’s version. (James is New York Attorney General Letitia James).

If the case reaches the Supreme Court, the majority justices’ oft-proclaimed commitment to an “originalist” method of constitutional interpretation will leave them no choice but to allow gun violence victims their day in court.

The constitutionality of the LCAA hinges on the Seventh Amendment, which begins: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved…” Today, this language probably sounds arcane. But to the Founders, the right to a jury in civil cases was an essential component of federalism.

Indeed, the Founders saw the entire Bill of Rights as a structure of protection against federal overreach. The role of the Seventh Amendment in this structure was to ensure that states, not the federal government, would make the rules governing citizens’ ordinary, day-to-day conduct. The phrase “common law” in the Amendment refers to traditional laws of contract, property and tort. Crucially, these were state laws when the Bill of Rights was ratified in 1791 and the Founders wanted to keep it that way.

By protecting the use of juries in state-law civil cases, the Seventh Amendment protected the existence of those civil cases in the first place — that is, it protected the integrity of states’ lawmaking power against federal government interference.

The LCAA — a congressional act prohibiting a whole category of state-law tort suits — would have horrified the Founders.

Obviously much has changed since 1791. The federal government has metastasized and its relationship to the states has flipped. Federal regulations, not state law, govern most economic activity.

The Supreme Court thoughtfully accommodated these shifts in a series of cases following the New Deal. Most relevant here, the court allowed Congress to replace patchwork state laws with a uniform national rule — a “complete scheme of regulation,” in the court’s formulation.

But the LCAA established no comprehensive regulatory scheme. Congress asserted a power that goes far beyond the court’s precedents and far beyond what the Seventh Amendment permits.

The status of the Seventh Amendment today is reminiscent of the Second Amendment 50 years ago. Lawyers used to treat the right to keep and bear arms as an anachronism, superseded in practice by the firepower of modern weapons and the size of modern police forces. The NRA embarked on a campaign to resurrect the Second Amendment, which came to full fruition in the court’s decision last summer.

Many scholars, myself included, dispute the court’s reading of Second Amendment history. But I concede that, as Justice Scalia wrote, “it is not the role of this Court to pronounce the Second Amendment extinct.” The same goes for the Seventh Amendment.

Like many pillars of our democratic culture, the legitimacy of the Supreme Court is perilously close to toppling. It is bad enough that many Americans think the court’s originalist philosophy is misguided. The graver danger is that many doubt the justices’ good faith. If the majority want to dispel those doubts, and if they genuinely believe in upholding the Founders’ intent, they must strike down the Lawful Commerce in Arms Act and permit traditional, state-law tort suits against gun companies.