The Bullets of Attrition

Without explanation, as is usually the case although it would not have been surprising had there been a dissent offering some explanation, the Supreme Court denied cert in Remington Arms v. Soto. This means the Connecticut Supreme Court’s reversal of the trial court’s dismissal on the pleadings will stand, and the case will move forward to discovery.

The Protection of Lawful Commerce in Firearms Act generally prohibits such suit. But it contains an exception for cases where the manufacturer or dealer “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….” It then lists examples, involving failures in record-keeping or sale to a prohibited person. The Second and Ninth Circuit had interpreted the exception in light of the examples listed, as limited to knowing violation of laws specifically directed at gun commerce.

Plaintiffs argued, and the CT Supremes agreed, that they could thus sue under the state’s Unfair Trade Practices Act, which bans unfair competition and “unfair or deceptive acts” in advertising. The advertising in question was Bushmaster’s military theme to its advertising, “when you need to perform under pressure, Bushmaster delivers,” “Opposition, bow down,” etc. The CT Supremes held that “unfair” includes “unethical” advertising, and “unethical” includes essentially advertising for anti-social purposes, and that the ads could be interpreted as that.

Marketing of the Bushmaster was, to be kind, unsavory. It played to the worst instincts of potential purchasers, assuming purchasers were 12-year-olds filled with raging hormones and dreams of machismo. I see you grinning. Stop it, Rambo.

Whether these advertisements had anything to do with the use of such weapons by any shooter, at Sandy Hook Elementary School or otherwise, is not merely unclear, but almost certainly unprovable. And taken in context, this is a reason why the denial of cert shouldn’t be taken too hard.

Big point: the trial court dismissed the suit for “failure to state a claim.” This is the first stage at which a suit can be reviewed. Dismissal is only proper if it is based on the pleading, bare written allegations. The CT Supremes said only that it couldn’t be, at this stage. Plaintiff still have to prove their allegations (after discovery, they can be challenged by a motion for summary judgement, and if that’s denied, fought at trial). The CT Supremes even allowed that plaintiff may have to surmount “herculean” barriers to win.

Getting past a motion to dismiss just isn’t a big deal in itself. Losing is, as that’s the end of the case and everybody goes home, but winning is merely the first step in a long and difficult journey. You still have to prove your case. You get the chance to discover evidence to support your claim, such as the impact of this disgracefully infantile marketing on shooters, but that is still miles away from proving your claim.

More to the point, there will be another opportunity, after discovery is complete, to move to dismiss the case upon summary judgment, there being no material issue of fact and the case, then ripe for tossing, will be decided on the law and the facts then established.

So, good news for gunmakers? Not the worst, at least? Not so fast.

More than two dozen cases challenging the federal shield law have been filed around the country. Few challenges to that law, called the Protection of Lawful Commerce in Arms Act, have progressed to trial. But dozens of states have consumer protection laws similar to the one in Connecticut, potentially opening a path for survivors of gun violence to sue the firearms industry, said Heidi Li Feldman, a law professor at Georgetown University Law Center.

If this was one lone suit to challenge the federal shield law, it would be no big thing. But it’s not one, but one of more than two dozen. It would not be particularly surprising if, given the denial of cert, a few thousand more lawsuits were filed presently. It’s remarkably easy to file suit: scan someone else’s complaint into the computer, change the names, pay the filing and process server’s fee and, boom, suit filed.

Defending against one suit is one thing. Defending against a dozen is another. Thousands is another, still. It takes time, effort and can get very expensive, and all it takes is for some yahoo local judge to approve it to face billion dollar consequences. Remember Gawker?

For the passionate lawyers, and their enormously sympathetic clients, who believe guns to be a social travesty and the eradication of guns a monumental social good, the chance to bring down the gun industry has them salivating.

Sure, there is a Second Amendment right involved, but if there are no guns to be had because gun manufacturers have been hounded out of business not by a ruling that they are, in fact, liable, or that the singular protections given them in light of the inherently dangerous nature of their product, then it’s a right without a weapon.

Even if you’re of the view that this wouldn’t be a terrible thing for society, as you’ve decided that “nobody needs an AR-15 to take down a deer,” the win wouldn’t be based on law so much as lawsuits. Lawfare, and the potential it has for winning by attrition, has taken out some major industries, and causes paradigm shifts in others. If you’re against guns, then you’re fine with bankrupting the gun industry by a flood of suits. The ends justify the means.

And let’s be real about the motivation of anti-gun advocates. Other than guns in the hands of the military and police, and maybe not even them, they want all private ownership of guns eliminated. They may moderate their rhetoric somewhat for the sake of palatability, but they really don’t like any gun and won’t lose a minute of sleep if no guns, from your kid’s .22 to grandpa’s shotgun, disappeared from the face of the earth.

If the fundamental constitutional right to keep and bear arms can be killed in a war of attrition, how long before the forces of social good figure out that suing Fox News to death wouldn’t similarly save the nation from political ideas they find anathema? It’s not that the First Amendment doesn’t protect them, but sue enough and businesses’ profitability eventually starts to crumble. Then again, profitability isn’t a big concern for the passionate either, because why would businesses need to make a profit to survive except to fill the coffers of filthy capitalist scum?

17 thoughts on “The Bullets of Attrition

  1. Hunting Guy

    Michael Steele.

    “You can have all the gun control laws in the country, but if you don’t enforce them, people are going to find a way to protect themselves. We need to recognize that bad people are doing bad things with these weapons. It’s not the law-abiding citizens, it’s not the person who uses it as a hobby.”

    Malcom X.

    “If it’s lawful to have a rifle club to kill pheasants, it should be just as lawful to have one to kill wolves or dogs that are being sicked on little black babies. In fact, it’s constitutional. Article Number Two of the constitution guarantees the right of every citizen to own a rifle or a shot gun.”

  2. Richard Kopf


    I am annoyed with you. Taking “your kid’s .22” is insulting.

    I have a .22. It shoots high velocity .22 shorts. Although not often given that we live in the city and the practice is frowned upon, once in a great while I am able to shoot a few of the bastard bunnies that prey in great herds upon Joan’s flower garden.

    My .22 will “be disappeared from the face of the earth” by you East coast liberals only if you take it from my cold dead hands. Besides, I’m no kid, shitlord.

    All the best.


    PS. I thought I was safe once Beto dropped out. Now I have this to worry about. I’m going to put a rifle rack on the back of the John Deere. That will make it clear where I stand even though the NRA rejected my application and I thus lack one of their cool decals.

    1. SHG Post author

      It’s funny that you say this. The other day, as my gardener was driving me in my John Deere 6×4 trail gator around the perimeter of the curtilege of Casa de SJ, I asked him if I could borrow his .22 to take out a particularly nasty ground hog. He looked at me, very serious, and said, “why would you want to piss off a particularly nasty ground hog?”

      1. Richard Kopf


        Are you stupid? You don’t shoot groundhogs. They will just get mad and crawl up your pant legs and . . .

        Here is what you do do:

        “Fumigation. Using gas cartridges such as Giant Destroyers to fumigate the ground hog’s den is usually the easiest method of getting rid of the pest for good. The gasser is ignited and placed in the ground hog’s burrow. The carbon monoxide fumes that are emitted will suffocate and kill the pest.”



        1. SHG Post author

          Exactly the sort of “solution” one would expect from some guy from Nebraska. And when I fumigate the burrow beneath my pool house, and its rotting corpse stinks up the joint, what do I tell Vitas Gerulaitis*?

          *True fact: he died in my next door neighbor’s pool house.

  3. Guitardave

    When it comes to “anti-social advertising”, how about 80+ years of Hollywood horseshit shoot-em’ ups and 25+ years of sick “live shooter” fucking video games? No elephant in this room.
    But I could be wrong…since it is possible that no gun company ad man has ever talked with a movie producer about whose hardware will be glamorized when the bad guys get turned into bloody Swiss cheese…amirite?

    We don’t give a shit why Maxwell is sick…but them fuckers that made that silver hammer got some ‘splaining to do.

      1. delurking

        Or maybe TV has reflected a connection between guns and manliness that has existed since long before there was TV.

  4. wilbur

    “The CT Supremes held that “unfair” includes “unethical” advertising, and “unethical” includes essentially advertising for anti-social purposes, and that the ads could be interpreted as that.”

    This seems like quite a leap itself … the meaning of “unfair” includes “unethical”? ‘Unethical” means “anti-social”?

    It’d be nice if the legislature or agency would let us know that when they passed the law or reg. Or would that be anti-social, too?

      1. w

        I was thinking more the 5th. Due Process and all that. When the government wants to deprive you of something – even commercial speech – they have to give you a reasonable idea of what is being proscribed. Or so it would seem.

  5. Dan

    ‘The CT Supremes held that “unfair” includes “unethical” advertising, and “unethical” includes essentially advertising for anti-social purposes, and that the ads could be interpreted as that.’

    Leaving aside the Second Amendment concerns, this would seem to pretty squarely violate the First.

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