Shook Public Policy Group Co-Chair Victor Schwartz and Of Counsel Chris Appel have authored "Pennsylvania Court Shoots Down Federal Tort Law as Beyond Congress's Commerce-Clause Power" for the Washington Legal Foundation's Legal Opinion Letter. Schwartz and Appel explain a Pennsylvania appeals court decision holding that "Congress lacked the authority under its constitutional power to regulate interstate commerce to adopt the Protection of Lawful Commerce in Arms Act of 2005 (PLCAA)."
"The crux of the court’s ruling in Gustafson is that the PLCAA offends the Commerce Clause and the Tenth Amendment by granting the firearms industry 'total immunity from common-law liability,' which 'improperly regulates the States’ abilities to apply their respective common laws,'" the authors explain. They note "several fatal flaws in that analysis with respect to both constitutional law and tort law," including that the act does not provide "total immunity" because it includes several exceptions.
"[W]here the imposition of massive tort liability threatens the viability of a national industry––as has been the case with respect to industries such as the general aviation industry, biomaterials industry, and firearms industry (among others)––Congress can and should assert its constitutional power to protect industry from the uncertainties and potential unfairness of state tort law," Behrens and Appel conclude.