Thomas Gallatin / March 15, 2019

Court Opens Crack in Federal Law Protecting Gunmakers

Connecticut Supreme Court okays Sandy Hook victims’ liability lawsuit against Remington.

The Protection of Lawful Commerce in Arms Act (PLCAA), the 2005 federal law designed to shield firearms manufacturers from direct legal liability for crimes committed by third-party individuals using their weapons, is under assault. In a 4-3 ruling Thursday, the Connecticut Supreme Court overturned a lower court’s dismissal of a liability lawsuit against Remington Outdoor Co. brought by nine family members of victims of the 2012 massacre at Sandy Hook Elementary School.

In its narrow ruling, the court actually upheld the lower court’s dismissal of all aspects of the lawsuit except a key one regarding the state’s authority in regulation of marketing. The court stated, “The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers.” The decision further states:

We conclude that the trial court properly determined that, although most of the plaintiffs’ claims should have been dismissed, PLCAA does not bar the plaintiffs’ wrongful marketing claims… Specifically, if the defendants did indeed seek to expand the market for their assault weapons through advertising campaigns that encouraged consumers to use the weapons not for legal purposes such as self-defense, hunting, collecting, or target practice, but to launch offensive assaults against their perceived enemies, then we are aware of nothing in the text or legislative history of PLCAA to indicate that Congress intended to shield the defendants from liability for the tragedy that resulted.

To put it simply, the court ruled that Remington, maker of the Bushmaster AR-15 rifle stolen and then used by the Sandy Hook assailant, could potentially be held legally liable for how its firearm was used based upon how it marketed its product. The court is stretching in its attempt to find a hole in PLCAA. How do we know? One clear indication is that the judges used the misnomer “assault weapons” when describing Remington’s marketing. We may be wrong, but we can’t think of a single gun manufacturer that uses this bogus term to describe its semiautomatic rifles. Thus, the judges say, the lawsuit can proceed based on malicious mischaracterization by the Left, not marketing by Remington.

So, if this legal line of logic succeeds, spoon and fork manufacturers better take cover as those utensils “cause” a lot of heart disease, and the manufacturers should be liable. You can start a long list of other inanimate objects that could be held liable for “causing” human injury and death.

Gun-control activists were quick to celebrate the ruling, seeing in it a roadmap for getting around PLCAA protections to go after firearm manufacturers. Adam Winkler of UCLA School of Law observed, “This is a landmark and potentially historic ruling. It opens up an avenue to hold gunmakers responsible despite federal immunity. It will encourage a lot more litigation.”

The lawsuit will now proceed in the lower court, where the plaintiffs will attempt to make the case that Remington marketed its firearms in such a fashion as to have encouraged their illegal use. This clearly sets up a collision course with constitutional rights protected by the First and Second Amendments. If influencing the illegal use of firearms via marketing makes an organization liable for criminal activity, then Hollywood and video-game creators top the list of the worst offenders.

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