NRPLUS MEMBER ARTICLE I n 2005, a wave of lawsuits threatened to bankrupt the gun industry. These suits were based on — pick your adjective — “creative,” “novel,” “inventive,” and “imaginative” legal theories that rarely held up in court, and they did their damage primarily by forcing gun companies to incur the costs of defending against them. Congress, seeing the problem, stepped in to put a stop to it — or at least tried to — by passing the Protection of Lawful Commerce in Arms Act (PLCAA).
A decade and a half later, anti-gun activists have responded with yet more new legal theories, and the Connecticut courts have bought one of them. Some families victimized by the Newtown massacre are being allowed to pursue a wrongful-death claim against Remington, which owns Bushmaster, the company that made the rifle used in the attack.
The U.S. Supreme Court is being asked to take the case and reverse the Connecticut supreme court’s decision. It should, as numerous briefs from gun-rights supporters have argued this month.
The problem here traces back to a flurry of legal activity in the 1980s and 1990s. Anti-gun activists faced a conundrum: It’s easy enough to file a wrongful-death suit against someone who committed murder with a gun, or to sue a company that sold a defective gun, or to go after a gun store that knowingly sold a gun to a criminal. But the activists didn’t just want to punish those who broke the existing rules; they thought the rules were too lax, and they’d had little success getting legislatures to change them.
So they sued gun companies for following the rules, spinning elaborate theories about why different, stricter rules should apply instead. Those companies were creating a “public nuisance.” They were “oversupplying” guns to high-crime neighborhoods, or continuing to send guns to stores that had had too many crimes traced back to them, or making products that appealed to the wrong sorts of people. Never mind how bizarre it is to hold a company liable for the criminal misuse of its legal products; never mind that state and federal governments had already written detailed laws about which guns were legal to sell and how gun sales were to take place; never mind that the targeted companies were following the prescribed process of dealer licenses and background checks; never mind that the alleged “bad apple” gun stores were licensed by the federal government to continue selling guns. If legislatures wouldn’t draw the lines the way the activists wanted, maybe judges and juries would instead.
Practically speaking, the problem with these suits was not that they had much chance of succeeding on the merits. The plaintiffs almost never won. Rather, the suits threatened to drown the industry in a sea of legal costs. Late in the Clinton administration, Andrew Cuomo, who was organizing lawsuits by federally funded housing authorities as the secretary of housing and urban development, told gunmakers they’d suffer “death by a thousand cuts” if they didn’t give in to the gun-control lobby’s demands. Some gunmakers did in fact go bankrupt.
So Congress decided to nip these suits in the bud. Under the PLCAA, there would be no more lengthy court proceedings: Whenever a court was asked to find a gun company liable simply because someone else had misused its products, the lawsuit would be unceremoniously tossed out. Contrary to some of the lies about the law spread in the media, it didn’t touch legitimate lawsuits. You can still sue gun companies if they sell defective products or break the law. Indeed, gun-rights supporters often cheer such lawsuits.
Eventually, though, activists came up with creative theories as to why the law against creative theories didn’t apply.
The case against Remington alleges that the marketing of the gun used in the Newtown massacre violated the Connecticut Uniform Trade Protection Act, which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” This is relevant because the PLCAA allows lawsuits when a gun company “knowingly violated a State or Federal statute applicable to the sale or marketing of the product” and the violation was a “proximate cause” of the harm at issue.
There are several layers of problems here.
For one thing, it’s not clear that a generic law like Connecticut’s is “applicable” to guns in the relevant sense. (The word can mean “capable of being applied” or “specifically applied.”) As 22 members of the House note in their brief, two different appeals courts have interpreted the word narrowly, and Congress clearly meant to bar lawsuits based on “remote theories” tying marketing to criminal acts.
Nor is it easy to see how Bushmaster violated the statute at all, much less knowingly violated it. Some of Bushmaster’s ads were cringeworthy; the “CONSIDER YOUR MAN CARD REISSUED” one is the most famous example. But it’s a hell of a stretch to say that to run such an ad is to knowingly engage in an “unfair or deceptive act or practice.” And as a group of Second Amendment scholars explain in another brief, the advertising themes decried in the lawsuit — military imagery, defense against adversaries — “have necessarily been common in American arms culture.”
Yet as the National Shooting Sports Foundation (NSSF) notes, the Connecticut supreme court found that “the plaintiffs could survive a motion to dismiss by simply alleging that the defendant[s] . . . had marketed their products in a manner that encouraged their use for offensive assault missions.”
The idea that the gun’s marketing directly contributed to the massacre is absurd as well. There is no evidence the shooter ever saw any Bushmaster ads, and he did not even buy the gun himself; he stole it from his mother. This, too, should protect Remington under the PLCAA.
Put simply, if a dubious allegation that a company violated a generic statute is enough to punch through the protections of the PLCAA, the PLCAA won’t mean much at all. As the NSSF argues, an attorney “can easily craft an allegation of ‘unfair’ conduct sufficient to survive a motion to dismiss under modern pleading standards. And nearly all states have statutes that prohibit ‘unfair’ trade practices in language as broad and as vague as the Connecticut Unfair Trade Practices Act.”
If the PLCAA doesn’t mean much, the Second Amendment itself won’t mean much, either. Just as they did last time around, anti-gun activists will be free to flood the courts with lawsuits that have little chance of success but are guaranteed to rack up massive legal fees capable of bankrupting gun companies. And the people can’t keep and bear arms if businesses can’t make and sell them.
The Supreme Court needs to take this case — and then nuke it into oblivion.
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