In this podcast episode with Richard Epstein and John Yoo, Insurrections, The Militia Cause, and Getting Dunked on By Charles Barkley, they discuss, inter alia, the recent case Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos and the Protection of Lawful Commerce in Arms Act. 1
See discussion at 38:40, in particular this comment by Epstein:
[44:20] … and it’s 9-0 in both cases, and I have yet to find anybody who thinks that these are sort of imprudent decisions, no matter what they think about guns.
Well, I, for one, disagree with the ruling and the law, as the Federal Government has no authority to regulate state tort law. But then I seem to be the only non-centralist libertarian who opposes such unconstitutional laws.
This is the same reason the Kelo ruling was correct, despite libertarian caterwauling to the contrary. 2 While patent and copyright are arguably constitutional 3, others like the federal Lanham Act (trademark) are not. 4 And see my comments about CDA §230: 5
The other problem is I believe the CDA itself, and the 230 clause, are unconstitutional since defamation is state law and the feds have no business regulating this. (In fact, if I recall, most of the CDA has already been thrown out as unconstitutional, leaving basically the 230 exemption standing).
It’s also why the National Right-to-Carry Reciprocity Act (H.R. 822), which was introduced in the U.S. House of Representatives in 2011 and co-sponsored by Ron Paul, would have been unconstitutional and a violation of federalism, even if in terms of substance it would have been a good idea.
- Justices reject Mexico’s suit against gun manufacturers; Unanimous Supreme Court rules against Mexico in guns case. [↩]
- A Libertarian Defense of Kelo and Limited Federal Power, LewRockwell.com, June 27, 2005. [↩]
- But see Copyright is Unconstitutional. [↩]
- See Trademark Ain’t So Hot Either…; Trademark and Fraud; Discussion with George Reisman; Copyright is Unconstitutional; also “Defamation as a Type of Intellectual Property,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 2024). But see On Constitutional Sentimentalism; also KOL457 | Sheldon Richman & IP; Andre from Brazil re Contract Theory, Student Loan Interest Payments, Bankruptcy, Vagueness, Usury; Napolitano on Health-Care Reform and the Constitution: Is the Commerce Clause Really Limited? [↩]
- No, Libertarians, We Should NOT Abolish the CDA §230 and DMCA Safe Harbors! [↩]
