Posted on 12/19/2001 7:23:59 AM PST by white trash redneck
1. Where in the U.S. Constitution is there any mention of "public rights"?
They are talking about common law rights. That is a different kind of rights from constitutional rights, but they are still very real in the law and very important. For example, if someone carelessly ran over your house with a bull dozer, or if somebody made a contract with you and then just broke it and kept your money, I suspect you'd like to be able to sue them and recover damages for it. Well the constitution doesn't give you any right to those damages. But the common law of torts and contracts do. And the common law also establishes certain public rights. You may disagree with this judge's assessment of the scope of public rights, but there's no point in denying that they exist or suggesting that they somehow must derive from the Constitution.
2. Yes he is bound to follow the federal court. The Constitution and laws on the United States are the supreme law of the land.
Actually, that's not really true in this instance. All of the issues that this court was deciding were issues of New Jersey state law, not federal law. That means New Jersey courts are the controlling authority on what New Jersey law is and whether this is a valid case. You and I happen to think that this particular New Jersey judge was wrong and will be overturned by the New Jersey intermediate appellate court or by the New Jersey Supreme Court - but if we're wrong and the New Jersey Supreme Court were to agree with this judge, there would be nothing that any federal court could do about it. The U.S. Supreme Court could not reverse a decision of the New Jersey Supreme Court about whether Newark has stated claims against the gun companies under New Jersey tort law. The gun companies would have to come up with some federal reason, whether constitutional or statutory, why the New Jersey tort law was overridden or preempted by federal law, and unfortunately they haven't been able to come up with any such argument about federal law that any court has been willing to accept. Where the gun manufacturers have won, they've won because of what courts have decided about state law, not federal, and that's how they'll ultimately win in New Jersey too.
3. The defendants should remove this case to federal court and also file a civil rights action against the city for violating a number of their constitutional rights. If the do and prevail, which they will, the city will have to pay damages plus all their legal fees. It is a sure way to get cities to stop this nonsense.
The gun manufacturers have tried to remove cities' lawsuits to federal court a total of eleven times - and the attempt has been unsuccessful every single time. The federal courts send the cases back to state court (they "remand" them, to be technical) because they find that there is no federal jurisdiction over the cases, because as I said the cases present state law issues only.
As for suing the cities, what I would call "fighting fire with fire," I think that's a really great idea. Unfortunately, it's been attempted three times now (once by Second Amendment Foundation, once by the National Shooting Sports Foundation and seven gun manufacturers, and once by a Texas group called the Civil Liberties Defense Foundation) and it's been a pretty miserable failure every time. It's easy to say "Let's sue them back," but it's a lot tougher to come up with a legal theory that would actually work against them. The law doesn't always accomplish what would be justice.
Newark, NJ now fancies itself the arbiter of what constitutes "the legitimate gun market."
NOT...
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