Pennsylvania Supreme Court Weighs Constitutionality of Protection of Lawful Commerce in Arms Act

AP Photo/Alan Diaz

When the parents of a Pennsylvania teen who was shot and killed by his friend teamed up with gun control advocates to sue the companies that manufactured the pistol and sold it at retail, a judge dismissed their claims; ruling that the lawsuit was precluded by the Protection of Lawful Commerce in Arms Act. But on appeal, the state's Superior Court issued a surprising opinion ruling that the PLCAA was unconstitutional, declaring "Tort law is decidedly a state issue," adding that if "courts allow Congress to regulate tort litigation involving these products, it could eventually regulate all litigation.”


I won't pretend to be an expert on tort law, but I will note that the Commerce Clause of the Constitution does grant Congress the power to "regulate Commerce with foreign Nations, and among the several States". Since the goal of the Protection of Lawful Commerce in Arms Act is clearly to, well, protect lawful commerce, it seems to me that the PLCAA fits comfortably within the confines of the Constitution. 

Even Joe Biden, who's repeatedly demanded the repeal of the PLCAA, has never claimed it's unconstitutional. In fact, in an ironic twist, attorneys for the DOJ's civil division were on hand for Tuesday's oral arguments to defend the federal statute. 

The Supreme Court has also never accepted the idea that the federal government has no role to play in tort law, even though it has laid out some guardrails. In U.S. v Lopez, the 1995 case that struck down the federal Gun-Free School Zones Act, the Court laid out several areas where Congress was empowered to act:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.


If Congress is empowered to regulate "things in interstate commerce", that must include firearms, but former Brady attorney Jonathan Lowy, now heading up Global Action on Gun Violence (the same outfit behind the Mexican government's lawsuit against major gun makers) argued before the Pennsylvania Supreme Court that they too should find the PLCAA unconstitutional

In writing the Protection of Lawful Commerce in Arms Act, Congress explicitly stated that it intended to prevent lawsuits that “impose unreasonable burdens on interstate and foreign commerce.”

But in the Superior Court nine-member decision, the panel noted that neither J.R. nor his parents purchased the gun that killed him, which means they did not engage in interstate commerce of any kind.

“Hence, at the time of J.R.’s death, there was no existing commercial activity between the Gustafsons and the gun industry for Congress to regulate,” they wrote in their opinion.

“Congress may not regulate those who do not actively participate in commerce with an interstate industry. Nor may it rely upon the Commerce Clause as a catchall to use any eventual economic impact upon an interstate industry as a pretext to legislate on purely state matters.”

Lowy took that one step further.

“Congress has no legitimate business telling the states how they make their law.”


No, the commercial activity was between the gun maker, the distributor, the retailer, and the purchaser of the firearm. Of all those entities, the only party that might bear any responsibility for the criminal misuse of the gun was the owner. Ultimately, though, it's the person who pulled the trigger who is to blame for J.R. Gustafson's death, and he has been held accountable in a court of law.  

The 14-year-old friend, John Burnsworth III, got the gun from the homeowner, removed the magazine and thought it was unloaded. But it wasn’t; there was still a bullet in the chamber. He then pointed it at J.R. and pulled the trigger.

Burnsworth pleaded delinquent to involuntary manslaughter in juvenile court.

The Protection of Lawful Commerce in Arms Act was meant to halt a flood of junk lawsuits blaming gun makers for the actions of criminals. In this case, a teen pleaded guilty to the criminal act of involuntary manslaughter, which alone should be reason enough to dismiss the lawsuit.

J.R. Gustafson's death is a tragedy, and I feel for the parents who lost their son. We can be sympathetic to their grief, however, without buying into the gun control lobby's claim that the gun maker and seller are responsible. It wasn't the gun manufacturer or the retailer who violated the basic rules of gun safety by pointing a pistol at his friend and pulling the trigger. It was a teenage boy who made that fatal mistake, and it would be an injustice for the Pennsylvania Supreme Court to allow this lawsuit against these companies to continue any further. 


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