Will Connecticut Circumvent The Second Amendment?

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.

(3) To guarantee a citizen’s rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.

(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.

(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.

(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.

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.

17 thoughts on “Will Connecticut Circumvent The Second Amendment?

  1. Keith

    I certainly can’t see anything going wrong here. Lawfare would only be used against rights that are hated. And really, why shouldn’t those rights be done away with by anyone with an ax to grind (and access to a lawyer and the filing fee)?

    Suing car manufactures? That would be MADDness.

    Of course, some of the ads in the New York Times…

  2. tk

    I’ve never understood how people can be so short-sighted when it comes to Constitutional Rights. There are folks on the left who laud any attempt to undermine the Second Amendment, without seeming regard for the fact that such maneuvers inherently undermine protections for rights that they cherish, as well. Reminds me of the Maryland judge who claimed that just because there were 10 million AR-15-style rifles in the U.S., did not mean they are in “common use” and thus protected under Heller and McDonald. So they are the most popular class of rifle in the U.S., but they are not protected?

    Conservatives are no different. They routinely cheer incursions on abortion rights. Roe v. Wade might have been poorly reasoned, but it is the unquestioned law of the land.Chipping away at its edge until it is no longer a right at all threatens all other rights as well.

    1. SHG Post author

      While I very much appreciate your observation about Roe, as it was an awful decision with the right policy outcome, it’s different than an enunciated right as is the Second Amendment. Closer to home, we have the 1st, where free speech would exclude “hate speech,” which would make it superfluous since no protection is needed if the only speech allowed was speech we liked.

  3. Pedantic Grammar Police

    It’s a lost cause. If they ruin all of the gun manufacturers, people will 3D-print them.

      1. Hunting Guy

        Or the guys in garages. Give me $15 and I can buy the parts to make a gun from Home Depot or Ace Hardware. Not pretty, not accurate, but capable of killing.

        $400 and I have a metal lathe or mill and can make a six shooter. Those killed a lot of folks in the civil war and opening the west.

        Up the budget to a $1000 and I can produce an Ak 47.

        Minimal skills necessary. Anyone that can keep a British sports car or home tractor running can make firearms.

        1. Pedantic Grammar Police

          They will have to ban tools then. UK is already working on it:

          [Ed. Note: Deleted per rules.]

  4. Jardinero1

    If and when it goes to a jury, the plaintiffs will have to prove, more likely than not, that Lanza chose, among his mother’s many weapons, the AR-15 because he was influenced by the marketing campaign; and more likely than not, the weapon was marketed wrongfully. That’s two burdens. Good luck with that.

    1. SHG Post author

      They’ve just gotten past the motion to dismiss. There’s still summary judgment to go, assuming no cert.

      1. Jardinero1

        Assuming the plaintiffs surmount every hurdle, go to trial and prevail; survive appeal; survive appeal; collect mega judgement from Remington. The worst case for Remington is they alter the way they advertise the weapons. Or, they no longer advertise at all such as the cigarette manufacturers after the tobacco settlement. It is ironic that the cigarette manufacturers stopped advertising because they diligently omitted the fact that their products kill people, but the gun manufacturers may have to reconsider their advertising schemes or stop altogether, because they are brutally honest about how well their products kill people.

        1. SHG Post author

          There is nothing in the Bill of Rights enumerating the right to smoke. It was an odd choice of analogy for the court.

          1. Jardinero1

            Understood about the difference between an enumerated right and the business of selling and consuming cigarettes. I was referring to the irony of what constitutes tortious conduct in advertising. You’re damned if you omit the truth(cigarettes) and damned if you tell the truth(guns), depending… The potential parade of horribles being unleashed by this has more to do with the 1st amendment than the 2nd. Potentially, what is being constrained, by the ruling, especially if plaintiffs prevail, is the right of businesses to tell the truth about their products.

  5. Fubar

    From Soto v. Bushmaster partially quoted above:

    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

    News for the learnèd judges: The bullets fired from many modern rifles have greater muzzle velocity.

    Even black powder muskets had muzzle velocities approximately the speed of sound in air at sea level, about 1,125 feet/second.

    Some ordinary 20th century rifle muzzle velocities exceed 4000 feet/second, depending on bullet weight and cartridge load.

    The Bushmaster XM-15 muzzle velocity of 3,260 feet/second is not “exceptional”. It’s mid-range.

    Facts are stubborn things. Adjectives plucked from thin air don’t change them.

  6. Brady Curry

    I know I don’t think to good, but 2A posts are a pet peeve, so here’s all I got.

    The plaintiffs aledge that Remington’s Bushmaster rifle advertisements played a part in Adam Lanza chosing the rifle with which to commit mass murder. In otherwords, of all the rifles sold in the United States, he chose this particular rifle due to their advertising.

    The simple fact is the crime he commited in originally obtaining the rifle, by murdering his mother (the true owner of the firearm), was one of convienience. It was the easiest rifle to get as it resided within his own home.

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