Did Gun Manufacturer Immunity Survive The Broccoli Analysis?[1]

June 21, 2016


Akyra Murray was a top student and standout athlete at her Philadelphia high school, a teenager who impressed those who watched her on the basketball court and those who felt her "warmth and magnetic embrace."The 18-year-old, celebrating her graduation from West Catholic Preparatory High School with a trip to Orlando, died in the mass shooting at the Pulse nightclub on Sunday.[2]


Sig Sauer, Inc., of Newington New Hampshire, manufactured, advertised and sold the gun which in the hands of a mad man worked as designed and killed 49 people including Akyra Murray.  Sig Sauer is protected from any consequences by a federal law passed in 2005 called the “Protection of Lawful Commerce in Arms Act.”[3]  Congress claimed the power to protect Sig Sauer from the consequences of its business  under the Commerce Clause.[4]  Seven years later, in 2012, in the “Obamacare”  decision, a majority of the Supreme Court, in dicta, said that


[t]he individual mandate, however, 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.[5]



Does the Congressional protection of Sig Sauer survive the Supreme Court’s analysis?  Akyra Murray was involved in no interstate commerce.  She did nothing.  She was just in the wrong place at the wrong time.  Yet she became subject to “a new and potentially vast domain” of congressional authority.    


Congress has the authority to “regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’”[6]  Akyra Murray was not a channel of interstate commerse.  She was not participating in interstate commerce.  Her activities did not substantially affect interstate commerce.  By the rationale of the majority of the Obamacare court, Congress has no power to regulate her. 


Yet despite the lack of power, Congress has, it purports, forbidden her to  bring a “civil liability action … in any Federal or State court” against Sig Sauer.[7]  When that bullet entered her, she, and her estate, acquired certain rights including the right to compensation for the damage that had been done to her by those responsible.  If, as a majority of the Supreme Court said they believed, the Congress could not require the consumption of broccoli[8] simply because that would improve the interstate commerce of  healthcare, then the violent tort that involuntarily thrust upon Akyra Murray rights no one would want did not thrust her into interstate commerce and into the maws of Congressional regulation.  If Sig Sauer is responsible it must pay and the Congressional attempt to bar recompense to victims is barred because the Supreme court has “reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce.”[9]  Akyra Murray was violently, criminally gunned down standing in a bar and Congress has no power to protect any person who might be responsible.




[1]  Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591, 183 L. Ed. 2d 450 (2012)


[2].Orlando Sentinel, June 13, 2016. http://www.orlandosentinel.com/news/pulse-orlando-nightclub-shooting/victims/os-orlando-mass-shooting-akyra-murray-20160613-story.html


[3] 15 U.S.C. §7901 et. seq.


[4] “Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.”15 U.S.C.A. § 7901 (West); C.f.,  U.S. Const. art. I, § 8, cl. 3 (granting Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”)



[5] Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2587, 183 L. Ed. 2d 450 (2012)


[6] Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578, 183 L. Ed. 2d 450 (2012), quoting,

United States v. Morrison, 529 U.S. 598, 609, 120 S. Ct. 1740, 1749, 146 L. Ed. 2d 658 (2000) (holding unconstitutional a federal law against gender based violence as beyond the power of the commerce clause).


[7] 15 U.S.C.A. § 7902 (West)


[8] Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591, 183 L. Ed. 2d 450 (2012)



[9] United States v. Morrison, 529 U.S. 598, 617, 120 S. Ct. 1740, 1754, 146 L. Ed. 2d 658 (2000)


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