Gun Control's "Third Way": State and Local Gun Purchase Preference Plans and the Dormant Commerce Clause

Abstract

This Note focuses on a so-called third way of gun control that grew out of the Smith & Wesson agreement: the formation of the national Communities For Safer Guns Coalition. This group aimed at pursuing a purchase preference plan, using the market leverage of states and municipalities, who purchase firearms for their law enforcement agencies, to induce gun manufacturers to commit to a set of regulations similar to that earlier agreed to by Smith & Wesson. Spearheaded by New York Attorney General Eliot Spitzer and Clinton Administration HUD Secretary Andrew Cuomo, this Coalition grew to include several hundred participants before Secretary Cuomo stepped down as HUD Secretary. While the Coalition effort was still in its early stages, several gun manufacturers and their national association, the National Shooting Sports Foundation, filed suit against the Coalition members, challenging the purchase preference plan effort as a violation of the Constitution's Commerce Clause. This Note will explore the Coalition's purchase preference plan, as well as the gun manufacturers' objections to the plan, to determine whether this unconventional method of gun control is permissible under the Constitution. Part I will provide dditional background information regarding the formation and goals of the national Coalition, as well as the manufacturers' subsequent lawsuit. Part II will explore whether the Coalition's efforts actually do impose an impermissible burden on interstate commerce, and whether that burden amounts to a violation of the prohibition embodied in the so-called Commerce Clause. Based on an analysis of the burden arising from the inconsistent state regulations potentially resulting from the Coalition's pursuit of its purchase preference plan, and the extraterritorial reach of those regulations, this Note will conclude that the purchase preference plan places a substantial burden on interstate commerce, a burden that cannot be justified by the Coalition's asserted interests. Part III will address the question of whether the Coalition can evade this fatal Commerce Clause scrutiny by invoking the market participation doctrine. This Part will conclude that such an exemption is unavailable to the Coalition members because their efforts have both a regulatory purpose and effect. Thus, because the Coalition's purchase preference plan impermissibly burdens interstate commerce, this third way of gun control cannot stand under the prohibition of the dormant Commerce Clause.