Congress Cannot Cancel Constitutional Rights Through Legislation

Congress Cannot Cancel Constitutional Rights
Through Legislation

By Thomas Coffin

The Constitution is the Supreme Law of the Nation, and the Congress lacks the power to nullify its precepts and its rights bestowed on the people through legislation that shrinks and even eradicates what the Constitution guarantees.

Yet that is precisely what Congress has attempted to accomplish through the infamous immunity legislation, enacted in 2005, known as the Protection of Lawful Commerce in Arms Act (PLCAA).

Allow me to explain:

Congress has barred victims of mass shootings from access to the courts to seek redress and hold the gun manufacturers accountable for their commercial trafficking in military weaponry which are directly responsible for serial mass murders being repeatedly inflicted on innocent victims, including school children, without any ending in sight. The findings made by Congress to justify this immunity legislation—that gun dealers are not complicit in the criminal misuse of the assault weapons they sell—have since been shown to be false. That evidence consists in part of their marketing techniques.

The Shelby County Supreme Court case decided in 2013 ruled the Voting Rights Act of 1965 to be unconstitutional with the passage of time because the Court contended the States subject to the Act were in fact not suppressing the voting rights of African-Americans as Congress had found. That case provides a precedent to question the constitutionality of the PLCAA because the passage of time has disclosed abundant evidence that the gun makers are complicit in the murders being committed with the assault weapons the industry promotes and sells. Under the Fifth and Fourteenth Amendments, the victims have a basic right to access the courts to seek redress and compensation for the taking of the lives and injuries suffered as a result of selling and promoting these military weapons indiscriminately to the public at large despite knowing full well how they are being used.

The Fifth and Fourteenth Amendments to our Constitution forbid government from taking anyone’s life, liberty, or property without due process of law. This precept protects the people from tyranny by enshrining the rule of law as a firm barrier to arbitrary and lawless deprivations of those things which are deemed fundamental rights under our Constitutional system of government.

It is long past the time to take a sober look at the Constitutional defects in the PLCAA which bestowed virtual immunity on the arms industry from any accountability for the deadly carnage reaped over the last 17 years by purchasers of the military weaponry the industry has sold under its protection.

As noted, there is Supreme Court precedent for revisiting the continued enforcement of the PLCAA in light of what we now know about its calamitous impact on the people and the entire nation, as well as on a number of fundamental rights which have been essentially forfeited by the many in order to enhance the corporate profits of the wealthy few.

In Shelby County, the Court, in an opinion authored by Chief Justice Roberts, ruled that a key provision of the Voting Rights Act of 1965 had turned unconstitutional with age because the data relied upon by Congress had become stale. (In actuality, Roberts cited erroneous data to justify his finding that voter suppression no longer existed in the States subject to the VRA, but such is beside the point here.) What’s sauce for the VRA is much less than the sauce which exists for the PLCAA.

Thus we need to re-examine the wholly inappropriate Congressional gift of immunity to the non-military sellers of war weapons to the private sector. The facts tell a gruesome story, a cruel saga that reveals a culture that assigns more value to private ownership of lethal military weaponry than it does to the lives of schoolchildren and other victims.

Just a small sample will suffice to demonstrate the point: Virginia Tech, 33 fatalities (2007); Fort Hood, 14 fatalities (2009); Sandy Hook Elementary, 27 fatalities (2012); Aurora, 12 fatalities (2012); San Bernardino, 14 fatalities (2015); Orlando, 49 fatalities (2016); Sutherland Springs Baptist Church, 26 fatalities (2017); Las Vegas, 58 fatalities (2017); Stoneman Douglas High School, 17 fatalities (2018), El Paso, 22 fatalities (2019); Dayton, 9 fatalities (2019); Buffalo, 10 fatalities, and Ulvalde, 21 fatalities (2022).

There are many more mass shooting fatalities and casualties inflicted by murderers using military weaponry since the Congressional immunity legislation was enacted 17 years ago. The evidence is staggering, overwhelming, and emphatically cuts against the premise that the sales of military weaponry to the private sector is not really the but-for cause of the massive loss of lives being inflicted by those wielding them.

In the findings made by Congress when it passed the immunity legislation, it relied on the proposition that businesses in the United States should not be held liable for harm caused by those who criminally misuse firearms and characterized the liability actions as without foundation. Congress further explicated that such an expansion of liability would even constitute a deprivation of rights, privileges, and immunities guaranteed to a citizen under the 14th Amendment, as well as characterizing the purpose of the Act to preserve the citizens access to firearms for hunting and self-defense.

These findings are belied, however, by the facts as developed over the past two decades.

First, guns are now a leading cause of death for children in the U.S. as firearm-related deaths have soared and continue to increase on a daily basis with no end in sight to the vicious cycle.

Second, AR-15s and similar semi-automatic assault weapons are responsible for a significant percentage of the fatalities and casualties in mass shootings throughout the nation.

Third, such military weaponry is not being used in any significant instances of self-defense or for hunting game. This category of arms is designed and developed for killing mass numbers of the enemy in combat, and that function has become the most notorious usage of them in practice.

Fourth, it is not the law that private sector ownership of military weaponry such as assault rifles is a personal right that is guaranteed by any provision in the Constitution. Currently, the jurisprudence is consistent and allows the government to regulate and even ban assault weapons from private sector possession.

Finally, the “criminal misuse” of such war weapons is now such a regular phenomenon as to constitute the “regular use” of them in our society. Why does the arms industry and its chief lobbyist, the NRA, continue endlessly to feign surprise every time one of these weapons is used to murder kids at school, shoppers at a grocery store, worshippers at church, etc.? This is their function. It is the very purpose for which the military designed them and ordered them from the manufacturers. They are no different in purpose than grenades or machine guns.

The real question is: Why is Congress enabling the distribution of military weaponry to non-military civilians? Who is the enemy that is the target?

The answer clearly seems to be ourselves—these weapons are being used in hate crimes, gang feuds, and even civil strife like insurrections. The next time a candidate loses an election, are military weapons the solution? And then, most tragically, there are the children. What society elevates guns above the lives of children?

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020.

He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School.
Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.
The Blackberry Pie Society is pleased to include a collection of his essays on our website. We will post them as they become available.

Posted 6.22.2022