And Now For Something Completely Different

• Published date: 01 October 2020
• Law Firm: Reed Smith
• Author: Mr James Beck

Anyone remember Monty Python's first movie, before anyone had ever heard of them? Along with the dead parrot and the Lumberjack Song, "And Now For Something Completely Different" featured a formally dressed man, sitting at an unexceptional desk, both of the sort you might find in a British law firm of the era (early 1970s) - except that the man and his desk were in some unusual location.

That's what came to mind when we read Gustafson v. Springfield, Inc., ___ A.3d ___, 2020 WL 5755493 (Pa. Super. Sept. 28, 2020). Only, replace the man at the desk in a strange place, with a courtroom scene located in a rather surreal legal landscape.

Gustafson determined that a federal statute, the Protection of Lawful Commerce in Arms Act of 2005, 15 U.S.C. '7901, et seq., ("PLCAA") was unconstitutional under the Tenth Amendment, relying primarily on a decision we've read many times − Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) - that never even mentions the Tenth Amendment. In so doing Gustafson employs a rationale, at once both paleolithically conservative and pro-plaintiffly radical, that would render any federal "tort reform" statute unconstitutional. Notably, Gustafson's rationale (should it stand) could include such current topics as the tort immunity conferred by the PREP Act and any federal attempt to immunize businesses from liability for COVID-19 infections.

Until the PLCAA, Bexis had spent the better part of five years arguing against the creation of "public nuisance" liability against manufacturers of properly functioning firearms in cases such as Young v. Bryco Arms, 821 N.E.2d 1078 (Ill. 2004), City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002), and Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055 (N.Y. 2001). By broadly preempting tort claims against manufacturers of properly functioning firearms, the PLCAA put a rather abrupt end to such litigation. Until Gustafson, perhaps.

Briefly, here's how Gustafson ended up with the result that the PLCAA is unconstitutional. Gustafson interpreted the Tenth Amendment as reflecting that "[t]he Founders feared fully centralized government." 2020 WL 5755493, at *10. It cites to the holding in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), that the Commerce Clause could not support Obamacare's individual mandate to purchase health insurance because that statute was creating commerce, rather than regulating it. But actually, Gustafson's primary reliance on NFIB, at both places it is discussed, 2020 WL 5755493, at *11, 16, is on Justice Scalia's dissent, rather than on the opinions supporting the Court's result in that case. In a declaration that rather ignores the 14th Amendment, Gustafson stated:

Moreover, the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce.

2020 WL 5755493, at *12 (citations and quotation marks omitted). If that statement were literally true, then everything from the civil rights legislation to interstate highway speed limits would be unconstitutional. The unstated significance of the 14th Amendment is that, with respect to federal power over the states, "the Framers" don't have the last word.

Gustafson analogized to NFIB to strike down the PLCAA because the plaintiffs who were barred from bringing suit were crime victims, and had not engaged in any "commerce" involving guns, which bears some similarity to uninsured people being required to buy insurance. "Congress commits the same constitutional overreach in the PLCAA [as in NFIB]. The Act regulates the inactivity of individuals who may never have engaged in a commercial transaction with the gun industry." 2020 WL 5755493, at *17.

But perhaps the most remarkable statement in Gustafson is this: "[T]he filing of a state lawsuit, in state court, based on state tort law, 'is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.'" 2020 WL 5755493, at *18. The quoted case United States v. Lopez, 514 U.S. 549, 567 (1995), had nothing whatever to do with lawsuits of any sort, but rather involved guns in school zones. Gustafson thus created its central legal proposition - that lawsuits aren't "commerce" for purposes of the Commerce Clause - out of thin air.

Although the...