The Right Opinion

Shooting Down the 2nd Amendment, One Lawsuit at a Time

By Arnold Ahlert · Oct. 11, 2012

It was one of those little stories that most people miss, even more so when it is released during a heated presidential election. But it is one that is critically important because it represents an unprecedented power grab by the one profession that has arguably done more damage to America than any other. If Americans don’t demand an end to this nonsense, we have no one to blame but ourselves. The details of the story are both simple and infuriating: a New York appeals court in has ruled that a former high school athlete shot in 2003 can sue – the companies that made and distributed the handgun used to shoot him.

Danny Williams, now 25, was promising high school basketball player who was shot in the stomach while playing hoops in front of his house. As a victim, he deserves nothing but sympathy. Cornell Caldwell, who shot him in a case of mistaken identity, is currently in prison, and deserves to be prosecuted to the fullest extent of the law. But the distributor and manufacturer of the gun involved?

The continued pursuit of this case rests on the idea that gun manufacturer, Beemiller, “knew” it was making guns tied to urban street crime, as did the gun distributor, MKS Supply, which was working closely with Beemiller. They “knew” because the gun used to shoot Williams was among some 250 guns purchased at Ohio gun shows by now-convicted gun trafficker James Nigel Bostic. Williams' attorneys contend that gun show dealer Charles Brown, also “had to have known” Bostic was buying guns for illegal purposes.

Attorneys for the gun industry – an ominous phrase that inadvertently reveals the staggering scope of where trial lawyers would like to take the concept of “legal causation” – countered that Brown believed Bostic was planning to open a gun shop. More importantly, Brown followed all the rules set out by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, regulating gun-show sales.

The industry attorneys added two other important details to their argument as well: first, because the gun sales occurred in Ohio, New York State has no legal standing in the case. Second, Beemiller and MKS Supply are insulated from liability by the Protection of Lawful Commerce in Arms Act. That law was enacted in 2005 and ostensibly protects firearm manufacturers and sellers from being held liable for harm caused by the criminal misuse of their non-defective products.

That such a law is even necessary is a great indication of where the legal profession would like to take this country. In case you don’t know what I mean, ask yourself this: if the gun distributor can be held liable, and then, in turn, the gun manufacturer, why not the company that mined the ore to make the gun? Why not the smelter of that ore, or the state where that ore was taken out of the ground?

And as always in a case involving firearms, partisan politics is also part of the mix. “This important ruling states that gun companies who choose to supply the criminal gun market are not above the law,” said Jonathan Lowy, a Brady Center attorney who, along with Buffalo lawyer Terrence Connors, represents Williams. The Brady Center is named after Jim Brady who was seriously wounded when John Hinckley, Jr. attempted to assassinate President Reagan on March 30, 1981. Again, Jim Brady merits the sympathy of a nation. His center’s efforts to eviscerate the Second Amendment do not.

In the initial ruling on the case, state Justice Frederick J. Marshall agreed with the gun manufacturers, and dismissed it on May 18, 2011. This ruling overturns that one, but it’s not over. “We believe [the lower court ruling dismissing the case] was a courageous and legally correct decision, but the Fourth Department was unwilling to follow his well-reasoned opinion,” said Jeffrey Malsch, who represents MKS Supply. “Whether we appeal or not, we are confident that ultimately the facts will contradict the baseless allegations in the complaint, and the case will be dismissed.”

That’s the small picture. The larger picture is what should deeply concern every American. Nothing has affected this nation more deeply than the “sue everyone” mentality that is rapidly turning virtually any interaction between two human beings into a potentially litigious event. Add the reams of rules and regulations enacted by government at every level to the mix – so much so that the law not only becomes unknown, but unknowable – and the trajectory is clear: we are litigating and regulating our way into a totalitarian strait-jacket.

The solution? It begins with tort reform, but that is only a beginning. Lawyers who would pursue unlimited causation must be sanctioned. Repeat offenders should be disbarred. The alternative is the continued expansion of causality to the point where not only freedom becomes a casualty, but the economic health of the nation as well.

As for this particular case, the long term – and progressive – objective is clear: the Second Amendment can effectively be overturned without having to go through that “messy” process of acquiring the approval of two-thirds of Congress and three-fourths of state legislatures to do so. All we have to do is get enough courts to hold enough gun-makers liable for crimes committed with firearms, and we’ll eventually make it impossible for gun manufacturers to remain in business. Make no mistake: that’s what these legal termites and their enablers are hard at work trying to do.

And for the very first time since the 2005 law was enacted, a court is letting them do it.