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March 2, 2010
My New Article: Lawyers, Guns, and Money: Why the Tiahrt Amendment’s Ban on the Admissibility of ATF Trace Data in State Court Actions Violates the Commerce Clause and the Tenth Amendment
Everyone today is understandably focused on McDonald v. City of Chicago, in which the Supreme Court could eventually find that the Second Amendment is incorporated through the Fourteenth Amendment's Due Process Clause and/or that the Second Amendment is one of the privileges and immunities of the citizens of the United States. While Chicago's gun laws could be deemed unconstitutional as a result of this opinion, they also spawned Congressional legislation which arguably exceeded Congress' Commerce Clause power and violated the Tenth Amendment. That legislation is the Tiahrt Amendment, and, according to my friend at the Brady Center to Prevent Gun Violence, the issue of whether the Amendment is (un)constitutional is set to become the new big issue after McDonald v. City of Chicago. Here is the abstract of my article on the issue, which you can now download from SSRN:
The Tiahrt Amendment provides in relevant part that ATF trace data "shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court..." This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as well as federal court proceedings, it is defensible, if at all, under Congress’ Commerce Clause power.
President Obama backed away from a campaign promise to repeal the Amendment, but the Amendment appears vulnerable to constitutional attack. In United States v. Lopez, the Supreme Court found that the Gun-Free School Zones Act (GFSZA) of 1990 exceeded Congress' Commerce Clause power because it was directed at criminal conduct, not commerce, and in Printz v. United States, it found that interim provisions in the Brady Handgun Violence Prevention Act violated the Tenth Amendment because they purported to direct state executive officers to participate in the administration of a federally enacted regulatory scheme. This article argues that the state court evidentiary provisions on the Tiahrt Amendment are not meaningfully different from the GFSZA and the interim Brady provisions, rendering them similarly indefensible under the Commerce Clause and the Tenth Amendment.
March 2, 2010 | Permalink
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