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Municipalities and individuals suing gun manufacturers say the Protection of Lawful Commerce in Arms Act of 2005, which President George W. Bush signed into law last week, may not stand the constitutional test of time. The new law shields firearms manufacturers and dealers from liability lawsuits. Sayre Weaver, legal director of the Educational Fund to Stop Gun Violence of Washington, said that “the law suffers from a number of constitutional infirmities on its face. “The legislation violates federalism and separation of powers constraints when sweeping statements in its purported evidentiary findings are actually legal conclusions, and when Congress assumes a role of telling state courts to dismiss cases,” said Weaver, who also is of counsel to Richards, Watson & Gershon in Los Angeles. “The part of the law that requires courts immediately to dismiss pending cases violates substantive and procedural due process and creates all kinds of ‘as applied’ challenges under the Fifth and Fourteenth amendments,” she said. Dennis A. Henigan, director of the Legal Action Project of the Brady Center to Prevent Gun Violence, a Washington-based advocacy group, agrees. “It’s the raw attack on vested common law rights that’s unprecedented,” Henigan said. The U.S. Supreme Court may view this case in a manner analogous to the dim view it took in May 2000 when it threw out a provision of the federal Violence Against Women Act of 1998 that Congress had enacted through its commerce power, Weaver said. In U.S. v. Morrison, 529 U.S. 598, the court struck down the civil remedy Congress provided in the act on top of existing state remedies for victims of gender-motivated violence, holding that Congress exceeded its constitutional authority when it based this provision on its right to regulate interstate commerce. But Christopher A. Conte, legislative counsel for the NRA Institute for Legislative Action, said he expects plaintiffs to challenge the law but is confident that it will be equal to their challenges. “The legislature can, in civil matters in particular, expand and contract judicial oversight, autonomy and jurisdiction. I think [the courts] are going to uphold it,” Conte said. Conte said he expects the first case to file for dismissal on the basis of the new law is likely to be the defendant in District of Columbia v. Beretta U.S.A. Corp., No. 00-0000428 (D.C. Super. Ct.), because it is closest to the U.S. Supreme Court. The district’s high court, the District of Columbia Court of Appeals, declined to strike down the district’s strict liability statute as unconstitutional in that case in April, and the U.S. Supreme Court denied review on this issue earlier this month.

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