Gustafson, M. v. Springfield 282 A.3d 739

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2022 PA Super 140

MARK AND LEAH GUSTAFSON, : IN THE SUPERIOR COURT OF

INDIVIDUALLY AND AS : PENNSYLVANIA

ADMINISTRATORS AND PERSONAL :

REPRESENTATIVES OF THE ESTATE :

OF JAMES ROBERT ("J.R.") :

GUSTAFSON :

:

Appellants :

: No. 207 WDA 2019

:

v. :

:

:

SPRINGFIELD, INC. D/B/A :

SPRINGFIELD ARMORY AND SALOOM :

DEPARTMENT STORE AND SALOOM :

DEPT. STORE, LLC D/B/A SALOOM :

DEPARTMENT STORE, :

:

Appellees :

:

THE UNITED STATES OF AMERICA :

:

Intervenor :

Appeal from the Order Entered January 15, 2019

In the Court of Common Pleas of Westmoreland County Civil Division at

No(s): 1126 of 2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,

J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.

DISSENTING OPINION BY OLSON, J.: FILED: AUGUST 12, 2022

As I believe that the trial court was correct in dismissing this action, I

must respectfully dissent from the Per Curium Order to Reverse.

I.

I agree with Part I of Judge Kunselman’s Opinion in Support of Per

Curium Order to Reverse. Specifically, I believe that the federal statute

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entitled the Protection of Lawful Commerce in Arms Act of 2005, 15 U.S.C. §§

7901-7903 (“PLCAA”), bars the product liability lawsuit filed by Mark and Leah

Gustafson against the Appellees as a result of the tragic death of their son,

J.R. However, I part company with my colleagues who conclude that PLCAA

is unconstitutional. Instead, I believe, as the many courts who have

considered these constitutional arguments have concluded, that PLCAA is

constitutional. Therefore, I would affirm the trial court’s order sustaining the

Appellees’ preliminary objections and dismissing the Gustafsons’ complaint

with prejudice. I write separately to address the constitutional arguments

raised by the Gustafsons.

II.

The Enactment of PLCAA

In the late 1990s and early 2000s, an increase in gun violence in the

nation’s municipalities prompted gun control advocates to seek stricter laws

governing the manufacture and sale of firearms. When state legislatures failed

to pass such laws, advocates for stricter firearms regulations turned to the

courts for redress resulting in an increase of lawsuits being filed against the

firearms industry. In light of the increase in such lawsuits and the impact

such suits would have on consumers and the marketplace, Congress enacted

PLCAA in 2005. The purpose of PLCAA was to prevent lawsuits against

“manufacturers, distributors, dealers, and importers of firearms that operate

as designed and intended . . . for the harm caused by the misuse of firearms

by third parties, including criminals”. 15 U.S.C. § 7901(a)(3). In the lengthy

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debates that preceded the passage of PLCAA, Congress highlighted the

extensive costs associated with litigation brought against the firearms industry

and the impact those costs have on the industry and the consumers.

Bankruptcy was perceived as a threat to the industry and the many workers

employed therein. 151 Cong. Rec. S9807-01 (daily ed. June 27, 2005)

(statement of Sen. Baucus) (the expenses associated with the lawsuits are “a

significant drain on the firearms industry, costing jobs and millions of dollars,

increasing business operating costs, including skyrocketing insurance costs,

and threatening to put dealers and manufacturers out of business”).

Moreover, concerns were expressed of the harm that could befall the United

States military as domestic gun manufacturers supply the military with

necessary firearms. Id. Thus, as noted by Senator Larry Craig of Idaho, one

of the sponsors of the Act, PLCAA is intended to stop litigation “that attempt[s]

to pin the blame and the cost of criminal behavior on businesspeople who are

following the law and selling a legal product. In fact, the one consumer product

where access is protected by nothing less than our Constitution itself is our

firearms, and that is exactly what is at stake []: the right of law-abiding

American consumers, American citizens, to have access to a robust and

productive marketplace in the effective manufacturing and sale of firearms.”

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151 Cong. Rec. S9807-01 (daily ed. June 27, 2005) (statement of Sen.

Craig).1

PLCAA specifically sets forth the findings upon which Congress based

the passage of the Act. As expressly stated, Congress found, inter alia, that

the Second Amendment of the United States Constitution protects the rights

of individuals to keep and bear arms; lawsuits have been brought against the

firearms industry seeking damages for harm caused by the misuse of firearms

by third parties, including criminals; and such lawsuits are done for the

purpose of having the judicial branch circumvent the legislative branch of

government thereby threatening the separation of powers doctrine and the

principles of federalism and comity between states. 15 U.S.C. § 7901(a).

Thus,

[t]he possibility of imposing liability on an entire industry for harm

that is solely caused by others is an abuse of the legal system,

erodes public confidence in our Nation’s laws, threatens the

diminution of a basic constitutional right and civil liberty, invites

the disassembly and destabilization of other industries and

economic sectors lawfully competing in the free enterprise system

of the United States, and constitutes an unreasonable burden on

interstate and foreign commerce of the United States.

____________________________________________

1 During the debates, Senator Craig emphasized the limitations imposed by

PLCAA as it “is not a gun industry immunity bill”. 151 Cong. Rec. S9807-01

(daily ed. June 27, 2005) (statement of Sen. Craig). “This bill does not create

a legal shield for anybody who manufactures or sells a firearm. It does not

protect members of the gun industry from every lawsuit or legal action that

could be filed against them. It does not prevent them from being sued for

their own misconduct. This bill only stops one extremely narrow category of

lawsuits, lawsuits that attempt to force the gun industry to pay for the crimes

of third parties over whom they have no control.” Id.

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Id. at § 7901(a)(6).

Under PLCAA, “[a] qualified civil liability action[2] may not be brought in

any Federal or State court”. Id. at § 7902(a). However, six exceptions apply

to this rule, including “an action for death . . . resulting directly from a defect

in design or manufacture of the product, when used as intended or in a

reasonably foreseeable manner, except that where the discharge of the

product was caused by a volitional act that constituted a criminal offense, then

such act shall be considered the sole proximate cause of any resulting death

. . .”. Id. at § 7903(5)(A)(v). As Judge Kunselman correctly found, this

exception does not apply in this case. See Kunselman Opinion at 5-11.

Accordingly, PLCAA is applicable to the Gustafsons’ claims and, so long as

PLCAA is deemed constitutional, will bar said claims.

Constitutionality of PLCAA

Since its enactment in October 2005, the constitutionality of PLCAA has

been challenged in various state and federal courts. Every appellate court

____________________________________________

2 A “qualified civil liability action” is defined in relevant part as “a civil action .

. . brought by any person against a manufacturer or seller of a qualified

product . . . for damages . . . or other relief, resulting from the criminal or

unlawful misuse of a qualified product by the person or a third party”. 15

U.S.C. § 7903(5)(A). The firearm and ammunition used in this case meet the

definition of a “qualified product”. See id. at § 7903(4).

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that has addressed these issues have found that PLCAA passes constitutional

muster.3

A. The Commerce Clause

In their original brief filed with this Court, the Gustafsons devote less

than two pages to their argument that Congress had no authority under the

Commerce Clause to enact PLCAA. Appellants’ Brief at 47-49. In their

underdeveloped argument, the Gustafsons argue that the trial court did not

explain how its decision “comports with [the] requirement that permissible

preemption involve[s] regulation of private actors, not sovereign states – or

how allowing unlimited liability in states with codified liability standards, but

no liability in states that rely on common law, is a rational regulation of

interstate commerce.” Id. at 48. Following the order granting en banc

consideration, the Gustafsons filed a supplemental brief in which they agree

____________________________________________

3 Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009), cert. denied, 560 U.S.

924 (2010); City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d

Cir. 2008), cert denied 556 U.S. 1104 (2009); Delana v. CED Sales, Inc.,

486 S.W.3d 316 (Mo. 2016); Estate of Kim v. Coxe, 295 P.3d 380 (Ak.

2013); Adames v. Sheahan, 909 N.E. 2d 742 (Ill. 2009), cert. denied sub.

nom. Adames v. Beretta U.S.A. Corp., 558 U.S. 1100 (2009); District of

Columbia v. Beretta U.S.A. Corp., 940 A.2d 163 (D.C. 2008), cert. denied

sub. nom. Lawson v. Beretta U.S.A. Corp., 556 U.S. 1104 (2009). I note

that the United States Supreme Court has denied each of the writs of certiorari

filed in the cases dealing with the constitutionality of PLCAA. I further note

that this Court “is not bound by the decisions of federal courts, other than the

United States Supreme Court, or the decisions of other states’ courts ...

[H]owever, we may use them for guidance to the degree we find them useful

and not incompatible with Pennsylvania law.” Eckman v. Erie Ins. Exch., 21

A.3d 1203, 1207 (Pa. Super. 2011) (internal citation omitted).

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with the original panel’s finding that the Commerce Clause prohibited

Congress from enacting PLCAA; however they clarify their argument as

follows:

PLCAA’s constitutional deficiency does not hinge on a finding that

litigation is not sufficiently related to commercial activity. PLCAA

violates the Commerce Clause because it targets the states

themselves, rather than any private individuals or any arguably

commercial activity, by dictating to the states how they must

exercise their lawmaking functions. State decisions on how to

distribute lawmaking functions among the branches of state

government – namely, whether liability standards should be

generated through judicial development of the common law or

through legislation – are not commercial activity within the proper

ambit of Congress’s Commerce Clause authority.

Appellants’ Supplemental Brief at 6 (emphasis in original).4

The Gustafsons’ argument regarding the Commerce Clause is misplaced.

Instead of arguing that Congress lacked authority under the Commerce Clause

to regulate interstate and international commerce of firearms, the Gustafsons

repackage their argument regarding the Tenth Amendment in terms of the

Commerce Clause; i.e. state decisions on whether liability standards should

be established via common law or through legislation is not commercial

activity that may be regulated by Congress. As will be addressed infra, this

argument is meritless.

____________________________________________

4 In her dissenting opinion, Judge Murray suggests that we could find that the

Gustafsons waived their argument regarding the Commerce Clause by failing

to present “a cogent legal argument on this issue”. Dissenting Opinion

(Murray, J.) at 18. I agree the argument is underdeveloped, but I do not

agree that the issue should be deemed to be waived.

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Notwithstanding the Gustafson’s faulty argument, Judge Kunselman

concludes that “PLCAA is not a valid exercise of Congress’s Commerce Clause

authority”. Kunselman Opinion at 32. In reaching this conclusion, Judge

Kunselman ignores the cases that have expressly considered the application

of the Commerce Clause to PLCAA, and instead, does her own analysis based

upon the United State Supreme Court’s “historical interpretation” of the

Commerce Clause. Id. at 15. I believe that this “historical interpretation” is

flawed.

The United States Constitution vests Congress with the power “[t]o

make all Laws which shall be necessary and proper for carrying into Execution”

its authority to “regulate Commerce with foreign Nations, and among the

several States”. U.S. CONST. art. I, § 8. In determining whether Congress

has authority to pass various pieces of legislation pursuant to the Commerce

Clause, the United States Supreme Court acknowledges that “[t]he path of

[the Court’s] Commerce Clause decisions has not always run smooth”. Nat’l

Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2003). However, “it

is now well established that Congress has broad authority under the Clause.”

Id. In assessing Congress’ authority under the Commerce Clause, the

Supreme Court “afford[s] Congress the leeway to undertake to solve national

problems directly and realistically” and the approach to judge whether

Congress properly exercised its authority is guided by two principles:

First, Congress has the power to regulate economic activities that

substantially affect interstate commerce. This capricious power

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extends even to local activities that, viewed in the aggregate,

have a substantial impact on interstate commerce. [Wickard v.

Filburn, 317 U.S. 111, 125 (1942)] (“[E]ven if appellee’s activity

be local and though it may not be regarded as commerce, it may

still, whatever its nature, be reached by Congress if it exerts a

substantial economic effect on interstate commerce.”) (emphasis

added)).

Second, we owe a large measure of respect to Congress when it

frames and enacts economic and social legislation. Pension

Benefit Guaranty Corporation v. R.A. Gray & Co., 467 U.S.

717, 729 (1984) (“[S]trong deference [is] accorded legislation in

the field of national economic policy.”); Hodel v. Indiana, 452

U.S. 314, 326 (1981) (“[The Supreme] Court will certainly not

substitute its judgment for that of Congress unless the relation of

the subject to interstate commerce and its effect upon it are

clearly non-existent.”). When appraising such legislation, we ask

only (1) whether Congress had a rational basis for concluding that

the regulated activity substantially affects interstate commerce,

and (2) whether there is a reasonable connection between the

regulatory means selected and the asserted ends.

In answering these questions, we presume the statute under

review is constitutional and may strike it down only on a plain

showing that Congress acted irrationally.

Id. at 601-603 (Ginsberg, J., concurring and dissenting) (some quotation

marks, parentheticals, and citations omitted) (emphasis in original); see also

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (“Although

activities may be intrastate in character when separately considered, if they

have such a close and substantial relation to interstate commerce that their

control is essential or appropriate to protect that commerce from burdens and

obstructions, Congress cannot be denied the power to exercise that control.”).

Moreover, Congress’ power under the Commerce Clause includes the power

to regulate “purely local activities that are part of an economic ‘class of

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activities’ that have a substantial effect on interstate commerce”. Gonzales

v. Raich, 545 U.S. 1, 17 (2005) (Congress had power to regulate the growing

and consumption of marijuana that took place entirely within a state).

Congress’ power under the Commerce Clause also extends to the imposition

of restrictions on civil litigation if Congress concludes that the restrictions will

promote interstate commerce. Pierce County v. Guillen, 537 U.S. 129, 147

(2003) (Congress had authority to pass federal statute that barred the use of

documents in civil trials that were prepared or collected by state authorities

pursuant to a federal program to identify hazardous sections of state

highways).

PLCAA was enacted to promote interstate and foreign commerce in

firearms. 15 U.S.C. § 7901(a)(6) (the possibility that manufacturers,

distributors and sellers of firearms would be held liable in legal actions of the

type foreclosed by the Act “constitutes an unreasonable burden on interstate

and foreign commerce of the United States”). Courts “must defer” to the

finding that the firearms industry operates in interstate and foreign commerce

as long as there is a rational basis for the finding. Preseault v. I.C.C., 494

U.S. 1, 17 (1990).

The Second Circuit Court of Appeals followed the general guidelines

noted above in holding that Congress had authority under the Commerce

Clause to enact PLCAA. In City of New York v. Beretta U.S.A. Corp., 524

F.3d 384 (2d Cir. 2008), cert. denied 556 U.S. 1104 (2009), the court noted

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that there are three general categories of regulation in which Congress is

authorized to act under the Commerce Clause: 1) Congress may regulate the

channels of interstate commerce; 2) Congress may regulate the

instrumentalities of interstate commerce; and 3) Congress may regulate

“those activities having a substantial relation to interstate commerce, i.e.,

those activities that substantially affect interstate commerce.[5]” Id. at 393.

It is the third category of regulation that is implicated with respect to the

enactment of PLCAA. Id. Relying on U.S. v. Lopez, 514 U.S. 549 (1995)6

and U.S. v. Morrison, 529 U.S. 598 (2000)7, the City of New York argued

____________________________________________

5 In further defining the third category of regulation under the Commerce

Clause, the Second Circuit Court of Appeals stated “[a]lthough activities may

be intrastate in character when separately considered, if they have such a

close and substantial relation to interstate commerce that their control is

essential or appropriate to protect that commerce from burdens and

obstructions, Congress cannot be denied the power to exercise that control.”

City of New York, 524 F.3d at 393, quoting NLRB v. Jones & Laughlin

Steel Corp., 301 U.S. 1, 37 (1937).

6 In Lopez, the Supreme Court held that Congress exceeded its authority in

passing the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A)

(1988 & Supp. V), which criminalized the possession of a gun within a school

zone. The Supreme Court found that the link between the possession of a

gun by a local student in a local school zone and a substantial effect on

interstate commerce was weak at best and, therefore, violative of the

Commerce Clause.

7 In Morrison, the federal government argued that gender-motivated violence

that prompted the passing of the Violence Against Women Act, 42 U.S.C.

§ 13981 affected interstate commerce by deterring potential victims from

traveling interstate and engaging in interstate business employment. The

Supreme Court rejected this argument as there was no basis to connect the

initial occurrence of a violent crime against a woman to interstate commerce.

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that the activity that PLCAA seeks to regulate – civil lawsuits against the

firearms industry for harm caused by the unlawful acts of third parties – was

outside Congress’ regulatory power. The Second Circuit rejected this

argument, finding that “the connection between the regulated activity and

interstate commerce under [PLCAA] is far more direct than that in Morrison

and Lopez.” Id. at 394 (quotation marks, citations, and corrections omitted).

The court went on to explain:

When enacting [] PLCAA, Congress explicitly found that the

third-party suits that [PLCAA] bars are a direct threat to the

firearms industry, whose interstate character is not questioned.

Furthermore, [] PLCAA only reaches suits that have an explicit

connection with or effect on interstate commerce. . . .

Accordingly, unlike the Gun-Free School Zones Act and Violence

Against Women Act, [] PLCAA raises no concerns about

Congressional intrusion into “truly local” matters. . . .

We agree that the firearms industry is interstate – indeed,

international – in nature. Of course, we acknowledge that simply

because Congress may conclude that a particular activity

substantially affects interstate commerce does not necessarily

make it so. We also should not and do not express any opinion

as to the accuracy of the Congressional findings with respect to

[PLCAA]. Nevertheless, due respect for the decisions of a

coordinate branch of Government demands that we invalidate a

congressional enactment only upon a plain showing that Congress

has exceeded its constitutional bounds. There has been no such

showing here. We find that Congress has not exceeded its

authority in this case, where there can be no question of the

interstate character of the industry in question and where

Congress rationally perceived a substantial effect on the industry

of the litigation that [PLCAA] seeks to curtail.

Id. at 394-395 (citations, corrections, and some quotation marks

omitted).

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A year after the Second Circuit Court of Appeals found that Congress did

not exceed its authority under the Commerce Clause in enacting PLCAA, the

Ninth Circuit Court of Appeals likewise upheld the constitutionality of the Act.

In Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009), cert. denied 560 U.S.

924 (2010), Bufford Furrow, who was carrying at least seven firearms which

he possessed illegally, shot and injured five people at a summer camp and

later that day shot and killed Joseph Ileto. The shooting victims and Mr.

Ileto’s wife filed a lawsuit pursuant to California common law tort statutes

against the manufacturers, marketers, importers, distributors, and sellers of

the firearms. Four years after the plaintiffs’ lawsuit was filed, Congress passed

PLCAA. The defendants sought the dismissal of the lawsuit in light of PLCAA’s

ban against such actions. The district court dismissed some of the claims

against certain defendants but permitted claims against other defendants to

proceed. On appeal, the plaintiffs argued that the district court erred in

applying PLCAA to the California tort claims brought against the defendants

and, alternatively, that PLCAA was unconstitutional. The Ninth Circuit

disagreed with the plaintiffs, finding that PLCAA preempted the California tort

claims and PLCAA was constitutional.

As to the constitutionality of PLCAA, the plaintiffs argued in part that

PLCAA violated the equal protection and substantive due process principles

embodied in the Constitution. In rejecting this argument, the Ninth Circuit

noted that the plaintiffs faced “an uphill battle” since “barring irrational or

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arbitrary conduct, Congress can adjust the incidents of our economic lives as

it sees fit. Indeed, the Supreme Court has not blanched when settled

economic expectations were upset, as long as the legislature was pursuing a

rational policy.” Id. at 1140 (citations, quotation marks, and corrections

omitted). The court went on to hold as follows:

There is nothing irrational or arbitrary about Congress’ choice

here: It saw fit to “adjust the incidents of our economic lives” by

preempting certain categories of cases brought against federally

licensed manufacturers and sellers of firearms. In particular,

Congress found that the targeted lawsuits “constitute an

unreasonable burden on interstate and foreign commerce of the

United States” and sought “to prevent the use of such lawsuits to

impose unreasonable burdens on interstate and foreign

commerce”. Congress carefully constrained [PLCAA’s] reach to

the confines of the Commerce Clause.

Id. at 1140 (citations and corrections omitted). In relying in part on the

Second Circuit Court of Appeals’ reasoning in City of New York and the

District of Columbia Court of Appeals’ decision in District of Columbia v.

Beretta U.S.A. Corp., 940 A.2d 163 (D.C. 2008), cert. denied sub. nom.,

Lawson v. Beretta U.S.A. Corp., 556 U.S. 1104 (2009)8, the Ninth Circuit

explained:

Plaintiffs disagree with Congress’ judgment in this regard. In their

view, the firearms industry is subject to relatively few lawsuits

compared to other major industries and, in any event, the pending

____________________________________________

8 In finding PLCAA constitutional, the District of Columbia case held in part:

“PLCAA . . . is reasonably viewed as an adjustment of the burdens and benefits

of economic life by Congress, one it deemed necessary in exercising its power

to regulate interstate commerce.” District of Columbia, 940 A.2d at 175

(quotation marks, citations, and corrections omitted).

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lawsuits could not possibly have an appreciable effect on the

firearms industry (and, by extension, on interstate or foreign

commerce). We need not tarry long on these considerations,

because our only task is to consider whether Congress’ chosen

allocation was irrational or arbitrary. We have no trouble

concluding that Congress rationally could find that, by insulating

the firearms industry from a specified set of lawsuits, interstate

and foreign commerce of firearms would be affected.

Ileto, 565 F.3d at 1140-1141 (citations and quotation marks omitted).

I agree with the holdings of the Second and Ninth Circuit Courts of

Appeal. There is no question that Congress considered the impact that

multiple lawsuits filed against manufacturers, distributors, and sellers of

firearms have on the industry. The costs associated with those lawsuits and

the negative effect damages awards could have on the economic survival of

the industry was rationally found to have an impact on interstate and foreign

commerce.9 Congress did not act irrationally or arbitrarily in making this

finding but gathered relevant data and considered input from stakeholders

____________________________________________

9 Judge Kunselman takes exception to Congress’ findings that the cost of

litigation against the firearms industry has a significant impact on interstate

and foreign commerce. Specifically, she states “history has shown that

litigation against manufacturers and seller[s] of products in other industries

does not substantially affect the free flow of such products among the several

States. The costs of such lawsuits and any damages imposed are ultimately

folded into the cost of the products. In that way, tort victims receive

compensation, manufacturers produce safer products, and the cost of

litigation and subsequent improvements is shared by those who actively

participate in the marketplace.” Kunselman Opinion at 27 (emphasis in

original). Not only does Judge Kunselman fail to cite to any support for these

conclusions, but these findings directly conflict with well-established

precedent that Congress’ factual findings are entitled to great deference.

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before enacting PLCAA.10 Courts that have considered this issue have not

“blindly accepted Congress’[] judgment of its own Commerce Clause

authority”, as Judge Kunselman suggests. Kunselman Opinion at 17. Instead,

they followed the Supreme Court’s prevailing jurisprudence when analyzing

the Act. See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305,

330 n.12 (1985) (“When Congress makes findings on essentially factual issues

such as these, those findings are of course entitled to a great deal of

deference, inasmuch as Congress is an institution better equipped to amass

and evaluate the vast amounts of data bearing on such an issue.”).11

Judge Kunselman dismisses out of hand the holdings of the Second and

Ninth Circuit Courts of Appeal. First, she concludes that “Ileto is not a

Commerce Clause case” and, therefore is irrelevant to the “issue at hand.”

Kunselman Opinion at 14, 15. I find this puzzling as the above-referenced

____________________________________________

10Judge Kunselman implies that Congress had no evidence upon which to

conclude that certain defined lawsuits against the firearms industry had an

adverse impact on interstate and foreign commerce. Kunselman Opinion at

26-27. In refutation, I point to the record of the extensive debates of the

109th Congress that took place prior to the enactment of PLCAA.

11 Judge Kunselman criticizes the trial court for not conducting its own analysis

as to “whether the intrastate activities that Congress sought to regulate under

PLCAA substantially affect interstate commerce.” Kunselman Opinion at 17.

However, such an analysis would be contrary to Supreme Court dictates. See

Rostker v. Goldberg, 453 U.S. 57, 72-83 (1981) (critical of the trial court’s

review of the factual findings and legislative history compiled by Congress

prior to enacting the statute, as it was “wrong in undertaking an independent

evaluation of this evidence, rather than adopting an appropriately deferential

examination of Congress’ evaluation of that evidence”) (emphasis in original).

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discussion clearly establishes that, although the plaintiffs in Ileto argued that

PLCAA violated the substantive due process and equal protection principles

under the Fifth Amendment, the Ninth Circuit expressly addressed Congress’

authority under the Commerce Clause in enacting PLCAA. See supra at

**13-15; see also Ileto, 565 F.3d at 1140 (declaring: “Congress carefully

constrained [PLCAA’s] reach to the confines of the Commerce Clause.

See, e.g., [15 U.S.C.] § 7903(2) (including an interstate- or

foreign-commerce element in the definition of a ‘manufacturer’); id.

§ 7903(4) (same: ‘qualified product’); id. § 7903(6) (same: ‘seller’)”)

(emphasis added).

Judge Kunselman’s rejection of the Second Circuit’s City of New York

decision is even more perplexing. Although she acknowledges that the Second

Circuit found that PLCAA did not violate the Commerce Clause, she found the

court’s “reasoning unpersuasive in light of more recent Supreme Court

authority.” Kunselman Opinion at 20. Judge Kunselman then relies on the

Supreme Court’s decision in National Federation of Independent

Business v. Sebelius, supra to conclude that Congress exceeded its

authority under the Commerce Clause in enacting PLCAA. I find that her

reliance on Sebelius is misplaced.

In Sebelius, the Supreme Court held that the Patient Protection and

Affordable Care Act (“Affordable Care Act”) violated the Commerce Clause as

the individual mandate provision of the Act required most Americans to

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maintain health insurance coverage. In finding that Congress lacked authority

under the Commerce Clause to enact the Affordable Care Act’s individual

mandate, the Court found:

The individual mandate [under the Affordable Care Act] does not

regulate existing commercial activity. It instead compels

individuals to become active in commerce by purchasing a

product, on the ground that their failure to do so affects interstate

commerce. Construing the Commerce Clause to permit Congress

to regulate individuals precisely because they are doing nothing

would open a new and potentially vast domain to congressional

authority. Every day individuals do not do an infinite number of

things. In some cases they decide not to do something; in others

they simply fail to do it. Allowing Congress to justify federal

regulation by pointing to the effect of inaction on commerce would

bring countless decisions an individual could potentially make

within the scope of the federal regulation, and – under the

Government’s theory – empower Congress to make those

decisions for him.

Sebelius, 567 U.S. at 552 (emphasis in original). Thus, the Court held “[t]he

Affordable Care Act is . . . unconstitutional in part. The individual mandate

cannot be upheld as an exercise of Congress’s power under the Commerce

Clause. That Clause authorizes Congress to regulate interstate commerce,

not to order individuals to engage in it.” Id. at 588.

In concluding that Sebelius controls, Judge Kunselman finds that

“Congress commits the same constitutional overreach in PLCAA. The Act

regulates the inactivity of individuals who may never have engaged in a

commercial transaction with the gun industry. As this case demonstrates,

PLCAA reaches out and forces J.R. Gustafson and his parents to provide

financial support for the gun industry by foregoing their tort claims against its

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members.” Kunselman Opinion at 22 (emphasis in original). I cannot agree

with this analysis (and I further note that the Gustafsons do not make this

argument). Unlike the Affordable Care Act which was directed at individuals

who chose not to engage in commercial activity by failing to purchase health

insurance, PLCAA is directed at those individuals, like the Gustafsons, who

chose to engage in commercial activity (i.e. litigation) that Congress found

substantially affects interstate commerce (a finding to which great deference

must be given).12 PLCAA does not force anyone to engage in commerce –

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12 Judge Kunselman takes exception to my analysis of Sebelius by pointing

out the difference between litigation and commerce. As she cogently states,

“[l]itigation is not commerce.” Kunselman Opinion at 23 n. 15. I agree. I do

not claim that litigation is commerce. Instead, I, like Congress, conclude that

litigation can be an economic activity that affects commerce. As the

Supreme Court has made abundantly clear “[E]ven if [an] activity be local

and though it may not be regarded as commerce, it may still, whatever

its nature, be reached by Congress if it exerts a substantial economic

effect on interstate commerce.” Wickard v. Filburn, 317 U.S. 111, 125

(1942) (emphasis added). In enacting PLCAA, Congress determined that

certain targeted litigation against the gun industry was an activity, “whatever

its nature”, that exerted “a substantial economic effect on interstate

commerce”. Moreover, as already noted, we must defer to Congress in

enacting economic legislation. Pension Benefit Guaranty Corp. v. R.A.

Gray & Co., 467 U.S. 717, 729 (1984) (“[s]trong deference [is] accorded

legislation in the field of national economic policy.”).

Additionally, Judge Kunselman makes the unfounded claim that, if the costs

associated with litigation justify Congressional action under the Commerce

Clause, then “all cases in state court would instantly come within

Congressional control” since “[e]very law or ordinance that any state, county

or municipality adopts eventually leads to litigation, where at least one party

will suffer a financial detriment.” Kunselman Opinion at 28, 29. (emphasis in

original). She makes this monumental leap by completely ignoring the limits

of Congress’ powers under the Commerce Clause. Specifically, Judge

(Footnote Continued Next Page)

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instead, it prohibits certain limited commercial activities that have a

substantial effect on interstate and foreign commerce. Hence, Sebelius lends

no support to the conclusion that PLCAA violates the Commerce Clause.

For the foregoing reasons, I conclude that Congress had the authority

under the Commerce Clause to enact PLCAA.

B. The Tenth Amendment

The Gustafsons argue, and Judge Kunselman agrees, that PLCAA

violates the Tenth Amendment by invading the province of state sovereignty.

I disagree.

The Tenth Amendment to the United States Constitution provides, “[t]he

powers not delegated to the United States by the Constitution . . . are reserved

to the States respectively, or to the people.” U.S. CONST., amend. X. The

Gustafsons contend that PLCAA violates this amendment because the Act

“bars states from imposing liability on negligent gun companies if states have

chosen to have their judiciaries establish the relevant liability standards

through common law (like Pennsylvania), while allowing identical claims if the

states used their legislatures to establish the relevant liability standards.

However, Congress has no permissible authority to infringe on a state’s

____________________________________________

Kunselman fails to do the appropriate analysis outlined by the High Court in

reaching this untenable conclusion, i.e., whether the hypothetical litigation

that arises out of these hypothetical laws “has such a close and substantial

relation to interstate commerce that [its] control is essential or appropriate to

protect that commerce from burdens and obstructions”. NLRB, 301 U.S. at

37.

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decision of which branch of government it chooses to make law.” Appellants’

Brief at 34-35 (citation omitted). The Gustafsons’ argument stems from one

of the exceptions to PLCAA’s ban on lawsuits against the firearms industry.

Specifically, PLCAA permits lawsuits against the firearms industry to proceed

if “a manufacturer or seller of a qualified product knowingly violated a State

or Federal statute applicable to the sale or marketing of a product, and the

violation was a proximate cause of the harm for which relief is sought”. 15

U.S.C. § 7903(5)(A)(iii). The Gustafsons argue (and Judge Kunselman

agrees) that this exception eliminates all state common law tort claims against

the firearms industry while permitting tort claims to proceed in states which

have codified their tort laws; hence, the Act infringes on states’ rights to enact

their laws the way they see fit in violation of the Tenth Amendment. This

analysis fails for several reasons.

First, the Gustafsons’ argument – PLCAA allows lawsuits against the

firearms industry to proceed in states with codified liability – is inapplicable to

the product liability claims brought in this case. The exception to PLCAA’s

ban on qualified civil liability actions set forth in § 7903(5)(A)(iii) is known as

the “predicate” exception and applies only to the knowing violation of a

statute dealing with the sale or marketing of a firearm. Ileto v. Glock, Inc.,

421 F. Supp. 2d 1274, 1296 (C.D. Cal. 2006), aff’d 565 F.3d 1126 (9th Cir.

2009). The predicate exception does not apply to statutes governing the

design of firearms. The Gustafsons’ claims allege design defects and,

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therefore, are governed by PLCAA’s design defect exception codified in

§ 7903(5)(A)(v). The design defect exception does not differentiate between

manufacturing or design defect claims based upon product liability statutes or

common law. Thus, even if a claimant brought a design defect claim in a state

that has codified its product liability laws, the claim would be barred unless

the claim fell within PLCAA’s design defect exception. As thoroughly

addressed by Judge Kunselman in Part I of her opinion, the Gustafsons’ design

defect claims do not fall within PLCAA’s design defect exception. Therefore,

even if Pennsylvania codified its product liability laws, the Gustafsons’ claims

would be barred under PLCAA. See Ileto, 565 F.3d at 1137 (“PLCAA

preempt[s] . . . theories of liability even in jurisdictions . . . that have codified

such causes of action”).

Even if the predicate exception applied, the Tenth Amendment would

not bar the application of the Act to the Gustafsons’ claims. As the Tenth

Amendment expressly states, “powers not delegated to the United States

by the Constitution . . . are reserved to the States”. U.S. CONST., amend.

X (emphasis added). Here, PLCAA was enacted pursuant to the power to

regulate interstate and foreign commerce and that power was expressly

delegated to Congress through the Commerce Clause. “If a power is delegated

to Congress in the Constitution, the Tenth Amendment expressly disclaims

any reservation of that power to the States.” New York v. U.S., 505 U.S.

144, 156 (1992). Hence, PLCAA cannot be deemed to violate the Tenth

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Amendment unless it violates the anticommandeering doctrine. Travieso v.

Glock, Inc., 526 F. Supp. 3d 533, 549 (D. Ariz. 2021) (“when Congress

passes a law pursuant to the enumerated powers delegated to it under the

Constitution, the only applicable limitation to it is its anti-commandeering

doctrine”).

As the United States Supreme Court explained, “[t]he

anticommandeering doctrine may sound arcane, but it is simply the expression

of a fundamental structural decision incorporated into the Constitution, i.e.,

the decision to withhold from Congress the power to issue orders directly to

the States.” Murphy v. NCAA, ___ U.S. ___, 138 S. Ct. 1461, 1475 (2018).

Under this doctrine, Congress is prohibited from commandeering state

legislatures by requiring them to enact certain laws. New York v. U.S., 505

U.S. at 161 (“Congress may not simply commandeer the legislative processes

of the States by directly compelling them to enact and enforce a federal

regulatory program”). Secondly, the doctrine prohibits Congress from

commanding executive branch members of a state to “administer or enforce

a federal regulatory program.” Printz v. U.S., 521 U.S. 898, 903 (1997).

Congress had the express authority to enact PLCAA under its

enumerated powers granted by the Commerce Clause to regulate interstate

and foreign commerce. Thus, the only way PLCAA could violate the Tenth

Amendment is if the Act commands state legislatures to enact a particular law

or state executive officials to administer a federal law. PLCAA does neither.

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As the Second Circuit Court of Appeals succinctly noted, “PLCAA does not

commandeer any branch of state government because it imposes no

affirmative duty of any kind on any of them. [] PLCAA therefore does not

violate the Tenth Amendment.” City of New York v. Beretta U.S.A. Corp.,

524 F.3d 384, 397 (2d Cir. 2008) (quotation marks and citations omitted);

see also Adames v. Sheahan, 909 N.E.2d 742, 765 (Ill. 2009) (“[B]ecause

PLCAA is a valid exercise of the federal power to regulate interstate commerce,

Congress has not intruded upon an area of authority traditionally reserved to

the states and does not impermissibly commandeer the states or their officials

in violation of the [T]enth [A]mendment.”). Hence, PLCAA does not run afoul

of the Tenth Amendment. 13

C. Fifth Amendment – Due Process

____________________________________________

13 Judge Kunselman relies on Erie Railroad Co. v. Tompkins, 304 U.S. 64

(1938) to support her conclusion that PLCAA violates the Tenth Amendment

as the Act disfavors common law and prefers statutes enacted by state

legislatures. Kunselman Opinion at 33-35. Erie does not support this holding.

Erie stands for the proposition that there is no federal general common law.

Erie, 304 U.S. at 78. Erie makes clear that “[s]upervision over either the

legislative or the judicial action of the states is in no case permissible except

as to matters by the constitution specially authorized or delegated to

the United States.” Id. at 79 (emphasis added). Hence, a state is free to

make its own common law “providing there is no overriding federal rule which

pre-empts state law by reason of federal curbs on trading in the stream of

commerce.” Lehman Bros. v. Schein, 416 U.S. 386, 389 (1974). Here, the

Constitution specifically authorizes Congress to regulate interstate and foreign

commerce; therefore, state law is permissibly preempted.

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The Gustafsons argue that PLCAA violates their right to due process

guaranteed by the Fifth Amendment14 because “it eliminates any remedy for

victims of gun industry negligence like [the Gustafsons]” without “providing a

reasonable alternative remedy”. Appellants’ Brief at 39. PLCAA does not

violate the Gustafsons’ right to due process because 1) they do not have a

protected property right in an unvested common law claim15; and 2) PLCAA

contains exceptions that allow certain claims against the firearms industry to

proceed; hence, the industry does not have complete immunity.

The Gustafsons do not assert that they have a protected property right

in their unvested common law claim. Instead, they argue solely that, as a

result of PLCAA, their access to the courts has been eliminated with no viable

alternative. Yet, as the court in City of New York cogently stated “PLCAA

immunizes a specific type of defendant from a specific type of suit. It does

not impede, let alone entirely foreclose, general use of the courts by would-be

plaintiffs”. City of New York, 524 F.3d at 398; see also Ileto, 565 F.3d at

1143 (“PLCAA does not completely abolish [p]laintiffs’ ability to seek redress.

____________________________________________

14 The Due Process Clause of the Fifth Amendment provides that “[n]o person

shall . . . be deprived of life, liberty, or property, without due process of law.”

U.S. CONST., amend. V.

15 It is well established that, although a cause of action is a “species of

property”, a party’s property right in a cause of action does not vest until a

final, reviewable judgment is obtained. Ileto v. Glock, Inc., 421 F. Supp. 2d

1274, 1299, aff’d 565 F.3d 1126 (9th Cir. 2009) (citations omitted). Here, the

Gustafsons have not obtained a final, reviewable judgment.

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[The Act] preempts certain categories of claims that meet specified

requirements, but it also carves out several significant exceptions to the

general rule. Some claims are preempted, but many are not.”); District of

Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 177 n.8 (D.C. 2008)

(Congress did not deprive injured persons of all potential remedies); Estate

of Kim v. Coxe, 295 P.3d 380, 391 (Ak. 2013) (following other courts in

concluding that plaintiffs’ due process rights were not violated).

As noted by the other courts who have considered this issue, PLCAA

does not foreclose all lawsuits against manufacturers and sellers of firearms.

To the contrary, it only eliminates certain identified claims. Moreover, PLCAA

does not prevent the Gustafsons from suing the young man who shot their

son or the homeowner whose gun was used in the shooting. See Travieso,

526 F. Supp. 3d at 549 (“Plaintiff may still pursue remedies against the owner

of the gun and the actual shooter who caused him harm; he simply elected

not to.”). As such, the Gustafsons’ rights under the Due Process Clause of the

Fifth Amendment have not been violated.

D. Fifth Amendment – Equal Protection

The Gustafsons argue that their right to equal protection under the Fifth

Amendment has been violated as PLCAA “discriminat[es] between classes of

tort plaintiffs without any rational basis.” Appellants’ Brief at 44. Specifically,

they assert “PLCAA creates a discriminatory judicial system in which persons

injured by gun industry negligence in states with legislation codifying

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judicially-created liability standards can recover damages; those harmed on

identical facts in states which rely on common law standards cannot recover;

and those injured from identical negligence from unlicensed gun sellers or

from defectively designed bb guns can recover everywhere”. Id. The

Gustafsons’ equal protection argument is similar to their Tenth Amendment

argument and likewise fails.

Although the Fifth Amendment does not specifically refer to equal

protection, the United States Supreme Court repeatedly has found there to be

an “equal protection component of the Due Process Clause of the Fifth

Amendment.” U.S. v. Armstrong, 517 U.S. 456, 464 (1996). However,

[w]hether embodied in the Fourteenth Amendment or inferred

from the Fifth, equal protection is not a license for courts to judge

the wisdom, fairness, or logic of legislative choices. In areas of

social and economic policy, a statutory classification that neither

proceeds along suspect lines nor infringes fundamental

constitutional rights must be upheld against [an] equal protection

challenge if there is any reasonably conceivable state of facts that

could provide a rational basis for the classification.

F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). As was

succinctly stated by the Ninth Circuit Court of Appeals, “barring irrational or

arbitrary conduct, Congress can adjust the incidents of our economic lives as

it sees fit. Indeed, the Supreme Court has not blanched when settled

economic exceptions were upset, as long as the legislature was pursuing a

rational policy.” Ileto, 565 F.3d at 1140 (quotation marks, citations, and

corrections omitted). As the Gustafsons concede, we must apply a rational

basis review in determining whether PLCAA violates the Fifth Amendment’s

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equal protection clause. Under this standard, “a classification must be upheld

against [an] equal protection challenge if there is any reasonably conceivable

state of facts that could provide a rational basis for the classification.” Heller

v. Doe by Doe, 509 U.S. 312, 320 (1993) (quotation marks and citations

omitted). In applying this highly deferential standard to PLCAA, it is clear that

Congress was pursuing a rational policy by enacting PLCAA. Congress

determined that certain lawsuits “threatened constitutional rights, destabilized

industry, and burdened interstate commerce. Protecting constitutional rights

and interstate commerce is a legitimate purpose and barring certain types of

tort suits while allowing others is a rational way to pursue this legitimate

purpose.” Estate of Kim, 295 P.3d at 392 (footnote omitted).

Moreover, as previously noted, the Gustafsons’ claims allege design

defects and, therefore, are governed by PLCAA’s design defect exception

codified in § 7903(5)(A)(v). This exception does not differentiate between

manufacturing or design defect claims based upon product liability statutes or

common law. Even if Pennsylvania codified its product liability laws, the

Gustafsons’ claims would be barred under PLCAA. Supra at 20. Hence, there

is no due process violation.

III.

Conclusion

I agree with Judge Kunselman that PLCAA applies to the Gustafsons’

product liability claims brought against the Appellees. However, I disagree

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that PLCAA is unconstitutional. Like the other courts that have addressed the

constitutionality of this Act, I find that Congress had the express authority

under the Commerce Clause to enact PLCAA; nothing in PLCAA commandeers

the states’ legislative or executive branches in violation of the Tenth

Amendment; and there is no infringement of the Gustafsons’ rights to due

process and equal protection under the Fifth Amendment. Therefore, I would

affirm the able trial court’s order sustaining the Appellees’ preliminary

objections and dismissing the Gustafsons’ complaint.

Judge Bowes and Judge McCaffery join.

Judge Murray concurs in the result.

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