Almost three years ago, on August 5, 1997, I visited the Cato Institute to speak at a Policy Forum with Bob Levy regarding the proposed tobacco settlement and the rule of law. On that occasion, I criticized the absence of any legal basis and the unsound policy of the suits filed by many of my colleagues from other states against the tobacco industry. From the outset, my concerns involved the precedent that my colleagues sought to create and the consequences of that precedent for other industries, for the right of the people to govern themselves, and for the rule of law. Unfortunately, the precedent of the government litigation against the tobacco industry has been followed by dozens of government lawsuits against the firearms industry.

Throughout the development of this new form of abusive public litigation, the Clinton administration has been more than a mere cheerleader; President Clinton, with the aid of Attorney General Reno and other cabinet officials such as HUD Secretary Andrew Cuomo, is the managing partner of these teams of government plaintiffs. Clinton is joined by his state partners, Attorney General Richard Blumenthal of Connecticut and Attorney General Eliot Spitzer of New York, and big city mayors - Morial of New Orleans, Campbell of Atlanta, Daley of Chicago, and recently even Giuliani of New York, among others. Together, they have created a Clintonian framework for big government that is the antithesis of the Madisonian framework for limited government established more than two centuries ago. In the end, this Clintonian framework erodes both the separation of powers and federalism, undermines the protection of civil rights, denies individual responsibility, and if continued will lead to a vicious cycle of futile dependence on ever expanding government power. Nowhere is the doomed nature of this enterprise of extortion masquerading as law more apparent than in the context of the war on guns.

Today I will provide a contrast of the Clintonian and Madisonian framework. I will then discuss the flaws of the gun litigation. I will conclude with a discussion of the Madisonian response to the War on Guns.

The Clintonian Framework

The Clintonian framework employs a six-step strategy. First, vilify an industry that has resisted for years abusive litigation and government regulation and manufacturers a potentially dangerous product. Scorn the industry as a band of criminals without ever mustering the courage to bring formal criminal charges. Second, pursue grandiose regulation through traditional legislative channels. Refuse to compromise, and when you predictably fail, denounce the so-called gridlock of the legislative process. Third, enlist your wealthiest and most politically active supporters, the trial bar, to create what they now call a "fourth branch of government," a phrase appropriated by Wendell Gauthier, the trial lawyer who filed the first gun suit on behalf of the City of New Orleans. Herald their aggressive pursuit of the "public interest" through litigation while secretly negotiating lucrative contingent fee contracts, the rewards of which will bankroll your next political campaign. Fourth, unite your allies in public office, especially Democrats, with a few liberal Republicans for the cover of bipartisanship, to pursue litigation, where your legislation failed. Because there are fewer of these officials holding governorships than several years ago, seek out the last bastions of liberalism in the offices of state attorneys general and big-city mayors. Fifth, as the costs of multiplicity of litigation and its varying results threaten to bankrupt the defendant industry, join the fray with the announcement of a proposed federal lawsuit. Sixth, settle your novel litigation with a vulnerable member of the industry, such as Smith & Wesson, (or in the context of tobacco, Liggett) and create incentives for an eventual settlement with the entire industry, which then achieves most of your earlier legislative goals. Secretary Cuomo calls this "death by a thousand cuts."

The Madisonian Framework

The Clintonian framework stands in stark contrast with the Madisonian paradigm of limited government that has served this Nation so well. Rather than vilifying an industry, the Madisonian framework respects and promotes the innovation and opportunity of free enterprise through the protection of freedom of contract, private property, and the free flow of interstate commerce. The Madisonian framework promotes majoritarian compromise in the legislative process as the sole method of lawmaking rather than using a fourth branch of leftist bounty hunters to combine executive and judicial powers in a new lawmaking enterprise. The Madisonian paradigm also allows variations in policies at state and local levels through federalism as opposed to enlisting state and local officials to create a national public policy that overrides the choices of objecting or nonparticipating jurisdictions and usurps the exclusive authority of Congress to exercise its enumerated powers to create national laws.

The Flaws and Inevitable Failure of the Gun Litigation

The pursuit of gun control through litigation represents an attempt to export flawed local policies and achieve national regulations that have failed to gain the approval of Congress. The big city mayors who have seen crime rates explode after they imposed tight gun control laws are attempting to blame states and local jurisdictions that have enjoyed low crime rates with fewer regulations of firearms. Federal officials, who have failed to enforce a myriad of national regulations of firearms, likewise are trying to shift the blame to Congress for not enacting even more regulations.

This litigation is an assault on fundamental civil rights, particularly those protected by the first two amendments in the Bill of Rights. In a republic that promotes a free society, as opposed to a police state, one of the basic organizing principles is that individuals have a right of self-defense and a right to acquire the means for that defense. In the American experience, that right is embodied in the Second Amendment, which expressly states that "the right of the people to keep and bear arms shall not be infringed." The firearms litigation, which is designed to coerce a settlement agreement, not produce a final adjudication, if successful, will impair the access to firearms for lawabiding citizens who are virtually unrepresented in the litigation. The framers of the Clintonian paradigm desire no hearing of that complaint of a civil rights' violation.

Less noticed, but no less dangerous, is the violation of first amendment rights. The Clintonian war on guns began with a public relations campaign against a political advocacy group, the National Rifle Association. The Clintonians attacked the group rather than its ideas. Then they used litigation to attack the freedom of pro-gun groups to speak both in the political arena and the marketplace. The gun suits, for example, named the National Shooting Sports Foundation and the Sporting Arms and Ammunition Manufacturers Institute as defendants even though these trade associations do not manufacture firearms. These associations instead engage in first amendment advocacy. Similarly, the gun suits challenge the marketing practices of the manufacturers of firearms; that is, the gun suits seek to limit the commercial speech of the manufacturers.

The overarching result of this new paradigm is the further erosion of individual responsibility. Rather than recognize that crimes are caused by criminals and punish those criminals in the traditional public litigation known as criminal law, the Clintonians argue that crimes are the responsibility of the firearms industry and should be addressed in a new form of public civil litigation. The Madisonian respect for individual responsibility, as embodied in the private law of torts, with its principles of assumption of risk and contributory negligence, is discarded in favor of a Clintonian framework of a new public law of torts with theories of negligent marketing and negligent design. The resolution of social problems, such as gun violence, is no longer primarily the responsibility of individuals in a free society; only the government allegedly can solve the problems.

Gun control through litigation, in the end, will produce only more crime. As the costs of guns increases and their supply diminishes, the consumers who are most responsive to these economic factors, law-abiding citizens and law enforcement agencies, will become less able to combat crime. Meanwhile, criminals, whose demand for firearms is nearly inelastic, will become more powerful adversaries and their black market for firearms will become even more profitable. The proponents of this litigation ignore the substantial evidence that laws allowing concealment of firearms by law-abiding citizens actually reduce crime.

When this new paradigm fails, as is inevitable, guess what the Clintonians will offer as the next solution? More government. While freedom is superior to pervasive regulation, the Clintonian framework promises a vicious cycle of failure that, with more regulation, continually produces even worse results. That is why the war on guns, like the war on tobacco, is ultimately another stage of the war on freedom.

The Madisonian Response to the War on Guns

Although the Clintonian framework of regulation through litigation is dangerous and should be stopped, not all of the news on this front is bad. Indeed, there are encouraging signs that the Madisonian framework is still flexible, resilient, and hopefully enduring. One example of the strength of the Madisonian framework is the legislative response to regulation through litigation. As a result of the gun litigation, several states, including Alabama, have enacted laws to prohibit municipal suits against the firearms industry. I favor broader state legislation using the model of the Litigation Fairness Act sponsored by U.S. Senator Mitch McConnell of Kentucky. That legislation bars governments from having rights to sue for harm to citizens that are more liberal than the rights of citizens to sue on their own behalf. In addition, a couple of states, Texas and North Dakota, have enacted new laws to regulate the hiring of government lawyers, especially on a contingent fee basis.

Another encouraging sign is the judicial response to the war on guns. In at least some quarters, apparently there are still some judges who are committed to the rule of law. In Cincinnati, for example, the trial court dismissed the gun suit filed by the city as "an improper attempt to have this Court substitute its judgment for that of the legislature, something which this Court is neither inclined nor empowered to do." That court reasoned, "To permit public nuisance law to be applied to the design and manufacture of lawful products would be to destroy the separate tort principles which govern those activities."

In my own state, I have responded to the efforts of the Clinton administration to persuade mayors to grant a preference to Smith & Wesson by reminding those officials of their obligations under Alabama law. To grant a preference to a manufacturer of firearms would violate both the competitive bid laws of my state and our constitutional prohibition of exclusive grants and franchises. Furthermore, effective August 1, all municipal regulation of firearms will be prohibited by a law passed by the Legislature at the end of its last regular session.

In the end, we also have the ultimate Madisonian response: the ballot box. If you care about the rule of law and desire to reverse its erosion under this administration, you will have an opportunity in November to, as we like to say in Alabama, "send them a message." As much harm as there has been to the rule of law, that damage can be reversed steadily by our efforts on all these fronts.

                                                           
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