Where in the enumerated federal powers is there anything close to the authority to infringe on the right to keep and bear arms for self-defense?
News that the Connecticut Supreme Court permitted nine Connecticut families to sue a gun manufacturer for the Sandy Hook tragedy is not the first time this blame the gun manufacturer strategy has been deployed. We have been here before—gun companies sued for crimes committed with their firearms, plaintiffs hoping to net big settlements, to ban civilian ownership of popular weapons and, with luck, to drive the entire firearms industry out of business.
The earlier barrage was launched with much fanfare in 1998 when New Orleans followed by some 30 other jurisdictions, filed high profile lawsuits. Chicago sued 22 gun manufacturers for $433 million dollars branding the companies “a public nuisance.” Boston’s suit claimed the gun companies were marketing an unsafe product and failed to keep guns out of the hands of criminals. On those grounds, the city sued 31 named defendants for millions of dollars, ballooning the sum by including the salaries and even the pensions of Boston police, firemen, and medical personnel. The advertised aim of these suits was to force the companies to make safety modifications, but the ultimate goal was to drive them into bankruptcy. Housing Secretary Andrew Cuomo warned the companies they would face “death by a thousand cuts.” Eliot Spitzer, then New York’s attorney general, threatened that unless Glock settled the state’s claim, “your bankruptcy lawyers will be knocking at your door.”
Law suits, however frivolous, are expensive to fight and companies that manufacture properly-made and legal products are not responsible for their misuse unless they sell them to dealers or individuals who they have reason to know may employ them for criminal ends. Apart from the few cases that settled, the courts summarily dismissed them all on those grounds. The Boston suit, an exception meant to be the first to go to trial, was withdrawn in 2002, the mayor claiming it was too expensive to proceed.
While the current Connecticut suit takes a somewhat different line, based on that state’s Unfair Trade Practices Act (CUTPA) a consumer protection statute and has the same goals, the legal playing field has been dramatically altered since that spate of high profile lawsuits against gun manufacturers.
In 2005 Republicans in Congress joined by 60 Democrats passed the Protection of Lawful Commerce in Arms Act. This act shields licensed manufacturers, dealers, sellers of firearms or ammunition and trade associations from any civil action “resulting from the criminal or unlawful misuse” of a firearm or ammunition. Seeking to hold “an entire industry for harm that is solely caused by others,” the law states, “is an abuse of the legal system.” If a van rams a crowd of pedestrians or terrorists load it with explosives, the auto company is not responsible. The law does include six common-sense exceptions such as evidence the product was defective or that a weapon was knowingly sold to an individual intent on using it for criminal purposes, but these exceptions all center around instances where the company intentionally creates liability for itself.
Three years later, in 2008, the Supreme Court finally clarified the meaning of the Second Amendment, affirming the right of individuals to keep and bear those firearms in common use for self-defense and other lawful purposes. This was followed in 2010 by McDonald v. City of Chicago, which incorporated the Second Amendment individual right, making it binding on the entire country.
And here things stood when the Connecticut families brought their suit in 2012. Their complaint does not fall comfortably under any of the Protection of Lawful Commerce in Arms Act’s exceptions. To get around that problem it has been brought under the Connecticut Unfair Trade Practices Act (CUTPA), a state consumer protection statute. Defendant Remington is accused of producing a “military-style” weapon unfit for civilian use and selling it to a person known to pose a risk. The Connecticut attorney general, William Tong, insists the AR-15 rifle, one of the most popular rifles in America, is a “military-type gun designed to inflict maximum lethality” and “should not have been marketed to civilians.”
Connecticut Judge Barbara Bellis agreed to hear the case, but found against the plaintiffs in 2016 because the deaths were caused by the criminal misuse of a weapon, an action falling “squarely within the broad immunity provided by PLCAA.” Nevertheless on appeal the Connecticut Supreme Court has agreed to hear the case that “wrongful marketing” of the rifle “for illegal, offensive purposes was a causal factor in increasing the casualties of the Sandy Hook massacre.” Although the plaintiffs find the advertising militaristic, Remington, of course, did not market the firearm for criminal use. Moreover, the shooter, Adam Lanza, did not buy the rifle, he stole it from his mother, inconvenient facts that the justices seem willing to ignore.
As for the Second Amendment protection affirmed in two Supreme Court cases that Americans can “keep and bear those guns in common use for self-defense and other lawful purposes,” the Connecticut judges seem prepared to substitute their views for that of the nation’s high court justices. Despite the high court’s plain language, the Connecticut judges found it “not at all clear . . . that the second amendment’s protections even extend to the types of quasi-military, semiautomatic assault rifles at issue in the present case.” Since the firearm in question is one of the most common rifles in the nation, and semi-automatic rifles are the most popular recreational firearms in the country, legally owned by millions of law-abiding citizens for self-defense and other lawful purposes, they are unquestionably within the Second Amendment protection. The Second Amendment has been incorporated and, whatever the Connecticut Court would like to believe, it protects the right of Americans to keep and bear those guns in common use, even the citizens of Connecticut.
Sadly, just as in the suits against gun manufacturers, we have seen this tactic of the Connecticut judges used by state courts and federal appeals courts before to nullify the now clear Second Amendment right. It is not a matter of confusion on their part about the high court ruling, but simple defiance. And such moves have been successful in other courts. For years, the Supreme Court has refused to hear challenges to these violations of a key right and these rulings have been allowed to stand. Happily the Court has now agreed to hear the case of New York State Rifle & Pistol Association v. City of New York challenging the city’s limits that restrict those few New Yorkers allowed to own a firearm to take them outside their homes, except in a manner that renders them useless for self-defense. The city law went into effect before the Supreme Court’s landmark Second Amendment cases and has remained unchanged.
One hopes the Connecticut judges will remember that the American Constitution is still the supreme law of the land and they have a responsibility to the residents of their state to accord them those individual rights that the American Constitution has granted them.