A Worrying Day for Gun Rights — But Promising Signs on Ending DACA

People line up outside the Supreme Court as it resumes oral arguments at the start of its new term in Washington, D.C., October 7, 2019. (Mary F. Calvert/Reuters)
Two big developments at the Supreme Court

The Supreme Court had a big day Tuesday, with two developments in particular that will be of special interest to conservatives. First, it declined to weigh in on a lawsuit against Remington by families victimized by the Sandy Hook massacre. And second, it heard arguments regarding the Trump administration’s attempt to end Deferred Action for Childhood Arrivals, a program through which the Obama administration had granted a special legal status to “Dreamers” who came to America illegally as minors.

The Remington decision could prove to be a significant defeat for gun rights. As I explained in more detail here, a 2005 statute called the Protection of Lawful Commerce in Arms Act (PLCAA) was designed to stop frivolous lawsuits against firearm companies. It was passed in the face of a massive, coordinated attempt to bankrupt these businesses in court — not necessarily by winning lawsuits, but mainly by forcing the companies to incur the costs of defending themselves over and over again.

The idea of the PLCAA was that when someone tries to hold a gun company liable for the criminal misuse of its products, and yet the company has clearly followed all the applicable laws, courts must simply throw the lawsuit out rather than letting it drag on. The lawsuit against Remington is just that kind of situation.

The suit tries to get around the PLCAA by offering a far-flung theory to fit the company’s behavior into one of the law’s exceptions: The ads for the gun used in the massacre (which were admittedly silly and hyper-masculine) somehow constituted a knowing violation of Connecticut’s law against “unfair or deceptive” trade practices. And lawsuits can proceed when such a knowing violation of state law is present. Should this tactic succeed, it could open the floodgates to a new wave of litigation.

The Court should have taken the case and killed it, but instead it declined to get involved. We can’t know why; there’s no explanation of the reasoning. We can only hope that the Court will revisit the issue in the future to resolve differences among the federal circuit courts, perhaps even at the conclusion of the trial. If you want to get your hopes up, click to read the rest of this Twitter thread from Gabriel Malor exploring possible reasons for the denial:

The results were more encouraging on the DACA case, which I’ve also covered previously. It’s never certain which way the Court will rule until the ruling is actually handed down, but conservatives should be cautiously optimistic on this one.

DACA is an Obama-era program through which illegal immigrants who arrived as minors can apply for a special legal status that comes with work authorization. There was no statute giving President Obama the authority to create the program; he simply decided to exempt an entire class of people from enforcement of the immigration laws. A similar program — “DAPA,” for the illegal-immigrant parents of citizen and permanent-resident kids — was actually struck down in a lower court as illegal. (In 2016, the Supreme Court deadlocked 4–4 on the question of DAPA’s legality, making the lower court’s ruling the final say.)

But this case isn’t even a direct challenge to the legality of DACA. The Court is being asked to refuse to let the Trump administration end the illegal program voluntarily, on the grounds that the administration didn’t adequately explain its decision to do so. The administration’s initial explanation may have been terse, but how much more of a reason does one need than that the program is flagrantly illegal and runs an obvious risk of being struck down in court?

This will probably come down to Chief Justice John Roberts, and while he didn’t clearly telegraph which way he’d vote, some of his questions at oral argument should give the Right hope. In one exchange he grilled a lawyer about the case in which DAPA was struck down: “You’ve got a Court of Appeals decision affirmed by an equally divided Supreme Court. Can’t he just say that’s the basis on which I’m making this decision?”

To be sure, he asked hard questions of the other side as well, and this is the guy who saved Obamacare. But — call me an incurable optimist — I don’t see him refusing to let a presidential administration end an illegal program invented out of whole cloth by the previous presidential administration.

Over at the Volokh Conspiracy, Josh Blackman speculates there are five votes for the administration’s decision not even being subject to judicial review, and possibly six if Elena Kagan crosses over to join the conservatives. If the Court goes that route, it will essentially punt DACA to the next administration, thanks to a long wind-down period.

And this piece, from Zachary Price, shows why even liberals should be wary of the Trump administration losing this case. If one president can exempt classes of people from the law under the guise of “prosecutorial discretion” and the next has to jump through hoops to reverse course, Republican administrations could have a lot of fun with, among much else, business regulations.

It is a big disappointment that the Court declined to end the threat the Remington case poses to the Second Amendment. But there is still hope for the rule of law where DACA is concerned.

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