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The fate of New York City’s lawsuit against the gun industry may rest on how a federal judge interprets an exception to sweeping legislation recently enacted by Congress. During two hours of oral argument Monday, Eastern District of New York Judge Jack B. Weinstein asked repeated questions about a provision of the Lawful Commerce in Arms Act that would allow a lawsuit if gun manufacturers had violated a state statute in the sale or marketing of firearms. At the same time, however, the judge greeted with great skepticism the city’s claim that the legislation, signed by President George W. Bush in October, was unconstitutional. The city’s suit alleges that gun manufacturers have created a public nuisance through their sales and marketing of guns, which end up in the hands of criminals. While the Protection of Lawful Commerce in Arms Act clearly was intended to curtail such lawsuits, it contains an exception that allows actions “in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, if the violation was a proximate cause of the harm for which relief is sought.” The city claims its suit falls under this exception because the gun manufacturers, including Beretta U.S.A. Corp., Smith & Wesson Corp., and Colt’s Manufacturing Company LLC, violated New York Penal Law �240.45, criminal nuisance in the second degree. Michael L. Rice of Jones Day, which represents Colt’s Manufacturing, told Weinstein that the exception was not applicable to the city’s suit because �240.45 was a general nuisance statute, rather than a law specifically applicable to the sale or marketing of guns. Weinstein asked what would happen if the New York Court of Appeals construed the statute to apply to the sale of firearms. When Rice said such an interpretation would not matter, the judge pressed the hypothetical. “I just want to get this clear because we have a very interesting federalism problem here,” Weinstein said. Rice argued that the state statute would have to specifically apply to the sale and marketing of firearms. An interpretation by a state court, he said, would not convert a general nuisance statute into an exact equivalent of a state statute contemplated by Congress when it passed the Lawful Commerce in Arms Act. Assistant Corporation Counsel Eric Proshansky countered that the city’s claim fell within the exception provided by Congress. “The Act was trying to get rid of certain suits, not all suits,” Proshansky said. Rice also urged the judge to consider the intent of Congress in passing the recent legislation. The clear purpose, he said, was to protect lawful commerce, not preserve liability claims, and to do otherwise would be to willfully ignore the wishes of Congress. Proshansky contended that the judge should rely on the text of the statute, rather than on what Congress might have intended. CONSTITUTIONAL ARGUMENT While Weinstein took great interest in the debate over the legislation’s language and function, he was all but dismissive of the city’s argument that the legislation violated the U.S. Constitution. When Robert S. Peck of the Center for Constitutional Litigation tried to advance that argument on behalf of the city, Weinstein would have none of it. “I don’t understand why the statute is unconstitutional,” the judge asked. He noted that Congress had limited lawsuits against vaccine makers and had regulated countless other areas of commerce, from small aircraft to sugar beets. It has always regulated the sale of guns, which the judge pointed out are as liked in some parts of the country as they might be disliked in New York City. “It’s done it with respect to industry after industry,” he said of Congress’s regulating powers. “Why can’t Congress say it is more important for people in Ohio to have guns than people in New York to not have guns?” Peck argued that the gun legislation did not create a new standard by which the judiciary could judge gun lawsuits, but simply ordered the judiciary to dismiss those suits. “This is Congress saying we are going to supplant the courts,” Peck said. “Courts just don’t decide cases, they rule on them.”

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