Anti-gun activists know they can’t get what they want through legislation, so they’re trying to get it in the courts.
Anti-gun activists know they can’t get what they want through legislation, so they’re trying to get it in the courts.
A recurring theme in political-issue activism is that when activists cannot achieve their desired policy ends through traditional democratic routes, many resort to other means they hope will ultimately have a similar effect. Often, this means litigation. For example, after being legislatively stymied, environmental groups have pushed dubious lawsuits targeting oil and gas companies, claiming that those companies tortiously brought about climate change by producing and selling the fuels demanded by all of humanity.
Gun-control activists have embarked on a similar campaign. Their goal appears to be bankrupting (or at least significantly curtailing) the firearms industry through lawsuits aimed at holding companies directly liable for harms associated with gun violence. Last year, a federal district court dismissed a $10 billion lawsuit brought by the Mexican government against Smith & Wesson and seven other gun manufacturers or distributors, which claimed that those companies should be held responsible for Mexico’s significant gun-violence problem. Major gun-control activist groups such as Everytown for Gun Safety, the Giffords Law Center, and March for Our Lives filed an amicus brief opposing the motion to dismiss, and the case has been appealed to the First Circuit.
In dismissing Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc. et al., the district court relied largely on a federal law that it determined “unequivocally” barred such lawsuits: the Protection of Lawful Commerce in Arms Act (PLCAA), passed by a bipartisan congressional majority in 2005.
The basic idea behind the PLCAA is that those lawfully engaged in the firearms business should not be held liable solely because somebody else misused their products — e.g. a criminal using a gun to commit a crime. Congress had quite reasonably found, among other things, that such lawsuits were an “attempt to use the judicial branch to circumvent the Legislative branch” and amounted to “an abuse of the legal system,” but nevertheless feared that a claim might one day be sustained “by a maverick judicial officer” or jury. Lawsuits arising from situations in which the gun manufacturer or retailer itself did something wrong — such as by making a defective product or knowingly selling a gun to a prohibited person — were unaffected by the law.
The PLCAA was (and remains) intuitively fair. Senator Bernie Sanders (I., Vt.) was a high-profile defender of the law before flipping his position during the 2016 Democratic presidential primaries. Yet its repeal remains a top legislative priority for some of the biggest gun-control advocacy nonprofits including Everytown, Giffords, and the Brady Campaign. Such groups misleadingly characterize the law as a blanket immunity that improperly shields the industry from “accountability,” and Everytown has even gone so far as to label it a “myth” that “criminals are responsible for their crimes, not the gun industry.” Failing a congressional repeal, activists and sympathetic politicians have fallen back on the same tactics that the PLCAA was originally enacted to thwart: using the courts as a legislative workaround.
Recently, several states have passed laws that place broad new restrictions on the firearms industry and deem any violation a civilly actionable public nuisance. These laws aim to exploit one of the PLCAA’s statutory exceptions, which applies to certain instances in which a business “knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” For example, New York’s version requires (among other things) that “gun industry members . . . establish and utilize reasonable controls and procedures” to prevent guns from being possessed or used unlawfully by others, or face civil liability.
An officer with the National Shooting Sports Foundation — a firearms-industry trade association — called such laws a “transparent and obvious attempt to circumvent the will of Congress,” and the association has sued over them in New York, New Jersey, and Delaware. Those cases are working their way through the federal court system, and speculation is growing that the Supreme Court will ultimately need to weigh in. An executive with Everytown noted that if the laws are ultimately upheld, the gun industry’s potential civil-liability exposure could revert to pre-PLCAA levels.
Gun control is a perennially polarizing issue that elicits strong passions on both sides. Much as with climate change, that passion has driven some activists and politicians to adopt an ends-justify-the-means approach to restricting Americans’ access to firearms. Giffords itself has said that such lawsuits work by pressuring the gun industry “in circumstances where legislators have been unwilling to enact laws.” A bipartisan Congress recognized back in 2005 that this was an inappropriate tactic. The lawsuits barred by the PLCAA, and the burgeoning state efforts to circumvent that law, are simply backdoor attempts by gun-control activists to achieve at least some of their policy aims without having to go through the democratic legislative process.