In 2005, Congress enacted the Protection of Lawful Commerce In Arms Act, and stated in clear words why.
The purposes of this chapter are as follows:
(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.
(2) To preserve a citizen’s access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.
(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.
(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.
This stripped away one of the most potent weapons to circumvent the Second Amendment, lawfare. Or at least, that was its purpose. But the Connecticut Supreme Court saw what might be a crack in the protection.
The plaintiffs’ second theory of liability was that the defendants marketed the rifle, through advertising and product catalogs, in an unethical, oppressive, immoral, and unscrupulous manner by extolling the militaristic and assaultive qualities of the rifle and reinforcing the image of the rifle as a combat weapon that is intended to be used for the purposes of waging war and killing human beings. The plaintiffs alleged that the defendants advertised this rifle differently from how they would promote and sell rifles intended for legal civilian purposes such as hunting and recreation. In connection with this second theory of liability, the plaintiffs also alleged that the defendants’ marketing of the rifle to civilians for offensive assault missions was a substantial factor in causing the decedents’ injuries in that L’s attack, had it occurred at all, would have been less lethal if L had not been encouraged by the defendants’ marketing campaign to select the rifle in question as his weapon of choice.
The marketing of AR-15 rifles could be an unfair trade practice under Connecticut’s CUPTA, and thereby expose manufacturers to liability, according to the court, which it accepts as true the allegations of the complaint as its ruling on a motion to strike the complaint. The allegations are that these are “military style assault weapons” with the capacity to “inflict unparalleled carnage.”
Rapid semiautomatic fire ‘‘unleashes a torrent of bullets in a matter of seconds.’’ The ability to accommodate large capacity magazines allows for prolonged assaults. Exceptional muzzle velocity makes each hit catastrophic. Indeed, the plaintiffs contend, bullets fired from these rifles travel at such a high velocity that they cause a shockwave to pass through the body upon impact, resulting in catastrophic injuries even in areas remote to the direct wound. Finally, the fact that the AR-15 and M16 are lightweight, air-cooled, gas-operated, and magazine fed, enabling rapid fire with limited recoil, means that their lethality is not dependent on good aim or ideal combat conditions.
Yet, it’s not so much that these guns can allegedly do all this, but that the manufacturer’s “advertising and marketing the rifle in an unethical, oppressive, immoral, and unscrupulous manner” meant that downstream users of the gun are inclined to commit mass murder because of this marketing.
In this case, the court allowed the suit to proceed over whether the weapon maker violated state prohibitions against unfair trade practices. The plaintiffs argue that the AR-15-style rifle used in the attack had been marketed as a weapon of war in a campaign aimed deliberately at troubled young men like Adam Lanza, the Sandy Hook gunman.
For those who believe that the Second Amendment should either be repealed or returned to its pre-Heller status, this represents a huge victory in its circumvention of the PLCAA, as bankrupting companies that make guns by liability for their horrific outcomes will prove the shortest route to eliminating guns. But will the Supreme Court allow Connecticut to circumvent federal law?
It is not difficult to envision Roberts and his fellow conservatives stepping in to smack down the Connecticut Supreme Court and closing the courthouse doors to Sandy Hook families. That would be a travesty, but at the very least, it might invite more public scrutiny to the PLCAA, a law unlike any other. Passed at the behest of the gun industry, designed to condone corporate irresponsibility, and anathema to fundamental principles of liability, the statute is a global outlier that permits American gun sellers to pollute the world with illegal weapons. Its repeal should be a goal of any politician who believes states should be permitted to allow citizens to hold the gun industry liable for the slaughter it has enabled.
Of course, car manufacturers aren’t liable for the carnage of horrific crashes, whether negligent, reckless or intentional, and there’s no constitutional right to own or drive a car, even as their advertising of cars driven at rates of speed in excess of limits contains a disclaimer that the drivers are professionals on a closed course.
But before the “conservatives” can smack down the Connecticut Supreme Court, or close the courthouse doors to Sandy Hook families, there would have to be a petition for certiorari and grant of the petition. There will no doubt be an amicus or 1,000 filed to inform the Supremes of the horrors that can be perpetrated by these guns of carnage, and the only real question presented will be whether the constitutional amendment despised by some and adored by others should be subject to a small state’s advertising laws.
Can one constitutional Amendment be culled from the herd of the Bill of Rights at one state’s behest? If so, there are others, or at least parts of others, that some find displeasing and contrary to their Utopian vision of a future where only happy words and thoughts are uttered, which might come under scrutiny by states for which federalism is only as good as its ability to serve parochial interests.