By David French
Monday, March 18, 2019
Over the weekend, my colleague Kevin Williamson wrote an
outstanding piece illuminating the ideology and opportunism behind a Connecticut
Supreme Court opinion holding that the manufacturer of the semi-automatic rifle
used in the Sandy Hook shooting may be held liable for violating state
unfair-trade-practices statutes. The legal reasoning behind the ruling, if
applied broadly, would directly defy federal law and could potentially deal a
staggering financial blow to firearms manufacturers and sellers in the United
States.
In the simplest terms possible, the Connecticut Supreme
Court held that a lawsuit filed against Remington by the estates of nine Sandy
Hook victims could proceed, based on the claim that the alleged “wrongful
marketing” of the rifle used by shooter Adam Lanza “for illegal, offensive
purposes was a causal factor in increasing the casualties of the Sandy Hook
massacre.” If these words are read according to their plain meaning, it would
seem the court is claiming that Remington literally advertised the weapon’s
usefulness to criminals, but it did not. In fact, the court’s reasoning exposes
the breadth of its ruling — and its direct threat to the First Amendment. Let’s
break it down, piece by piece.
Under the federal Protection of Lawful Commerce in Arms
Act (PLCAA), plaintiffs are generally barred from filing suit against gun
manufacturers or sellers for criminal or unlawful misuse of weapons they make
and market. The act is designed to reinforce
traditional product-liability law and to protect gun rights from activist
judges. After all, no one thinks that Ford should be held liable if a terrorist
drives an F-250 into a crowd. Yet there are activists who believe that, say,
Ruger should be held liable if a bank robber uses an SR9 to commit a robbery.
While the PLCAA is broad, it does allow for specific,
commonsense exceptions. For example, suits can still be brought against a
manufacturer if its weapons malfunction or against a seller if he “aids or
abets” a person prohibited by law from possessing firearms in obtaining a gun.
Critically, the PLCAA also contains a provision permitting suits if the
manufacturer or seller “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 for which relief is sought.”
Now, here’s where the Connecticut court got very creative. There is no specific
state statute banning any of the specific ads at issue in the case. So instead,
the court took extraordinarily broad language from the Connecticut Unfair Trade
Practices Act and considered whether the ads for the rifle were “unethical,
oppressive, immoral, and unscrupulous.” And how were the ads potentially
unlawful on those grounds? Because the marketing was “militaristic.” Here’s the
plaintiffs’ description of the relevant ads:
The plaintiffs further contend that
the defendants unethically promoted their assault weapons for offensive,
military style missions by publishing advertisements and distributing product
catalogs that (1) promote the AR-15 as ‘‘the uncompromising choice when you
demand a rifle as mission adaptable as you are,’’ (2) depict soldiers moving on
patrol through jungles, armed with Bushmaster rifles, (3) feature the slogan
‘‘[w]hen you need to perform under pressure, Bushmaster delivers,’’
superimposed over the silhouette of a soldier holding his helmet against the
backdrop of an American flag, (4) tout the ‘‘military proven performance’’ of
firearms like the XM15-E2S, (5) promote civilian rifles as ‘‘the ultimate
combat weapons system,’’ (6) invoke the unparalleled destructive power of their
AR-15 rifles, (7) claim that the most elite branches of the United States
military, including the United States Navy SEALs, the United States Army Green
Berets and Army Rangers, and other special forces, have used the AR-15, and (8)
depict a close-up of an AR-15 with the following slogan: ‘‘Forces of opposition,
bow down. You are single-handedly outnumbered.’’
Note that nothing — absolutely nothing — about those ads
describes or urges illegal conduct. The claim is that the Sandy Hook shooter
was “especially susceptible to militaristic marketing.” Yet the Sandy Hook
shooter didn’t purchase his weapon. He murdered his mother and stole her weapon. Moreover, by no stretch of
the imagination does “militaristic” use equate with “illegal” use. It takes
willful misreading to claim that there is anything at all “unscrupulous” about
stating that SEALs use similar (though hardly identical) weapons.
When I purchased my own AR-15, I did so in part because
it was the closest civilian analogue to the M4 I carried in the Army — the
weapon I’d fired the most and was most familiar with. It was not the same, of
course, since I couldn’t switch it to fully automatic, three-round-burst mode,
but its similarity was appealing. Nothing
about that communicates illegal intent, and nothing
about military use translates into an assault on an elementary school. That’s
not what Rangers do.
In reality, the court was using the broad language of the
statute to impose its own, subjective view of “immorality” on gun makers, a
ruling that, given the ubiquity of such statutes across the country, could
expose gun makers to liability whenever state courts found gun ads distasteful.
What’s the intent here? Toward the end of the opinion,
the court gives the game away:
There is no doubt that
congressional supporters of PLCAA were committed to Americans’ second amendment
freedoms and sought to secure those freedoms by immunizing firearms companies
from frivolous lawsuits. It is not at all clear, however, that the second
amendment’s protections even extend to the types of quasi-military, semiautomatic
assault rifles at issue in the present case.
There you have it. The real target is the weapon, not the
ad.
Make no mistake. This is a dangerous precedent. It
contradicts the PLCAA, and it strongly implicates the First Amendment. If gun
makers and sellers can be held liable when state courts find their ads
distasteful under broad, vague consumer-protection statutes, then not even
accurate ads about lawful products are safe. While commercial speech enjoys
lesser protection than, say, political speech, it is still protected from
arbitrary and capricious punitive state action.
There is an old saying that bad facts make bad law. There
are no worse facts in recent American history than those of the terrible,
horrible massacre at Sandy Hook, but even that awful day is no justification
for subverting federal law and undermining constitutional rights. The
Connecticut Supreme Court just launched an end run around the Constitution. The
U.S. Supreme Court must intervene.
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