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Will a New Jersey Lawsuit Be a Game Changer for Gun Control?

The second amendment and the right to bare arms concept with a grungy image of a gun and bullets on american flag. In the United States of America the 2nd amendment protects people's right to own guns
By Richard Dahl on March 11, 2021 10:39 AM

Make no mistake. Americans – or at least a good many of them – love their guns.

When it comes to personal ownership of firearms, no other country can match the U.S. According to the most recent count by Switzerland-based Small Arms Survey, the U.S. is the only nation on earth where guns outnumber people: 120.5 firearms for every 100 people. Second-place Yemen has a mere 52.8 guns for every 100 residents.

So, if these deadly products are so pervasive in the U.S., why is it so hard to hold the gun industry legally accountable?

That is a question that has arisen from a recent legal fight in New Jersey between the state attorney general's office and Smith & Wesson. Last October, Attorney General Gurbir S. Grewal sent a subpoena to the gun manufacturer as part of an investigation of consumer fraud, seeking a trove of internal documents.

The reason for the action: Smith & Wesson ran a television commercial in which a woman and her gun are portrayed in various aspects of everyday life – going to work, to the gym, to an outdoor café, to a shooting range. The problem, the AG said, was that carrying a gun around like that would be illegal in 35 states without a concealed-carry permit, which the commercial fails to mention.

An Opening in the Law?

As the Times noted, it's doubtful that Grewal really cares that much about advertising fraud per se in this case. Smith & Wesson said as much when they filed suit against Grewal in December, saying it was really an attempt to advance his “anti-Second Amendment agenda." This, in turn, prompted Grewal to file a motion to dismiss on the grounds that he was conducting a “garden-variety state consumer-fraud investigation."

Well, yes. But no.

As the Times notes, “Let's call New Jersey's reply what it is: disingenuous. The court knows – and clearly Smith & Wesson knows – that the advertising fraud investigation is not 'garden variety' anything."

Its purpose is to gain access to internal documents, much like plaintiffs were able to achieve with Big Tobacco in the 1990s. At that time, more than 40 states pursued litigation against the four largest tobacco companies in the U.S. on the grounds that their products were causing a public-health crisis that was costly for the states to address. With the help of a whistleblower, Jeffrey Wigand of the Brown & Williamson Tobacco Corp., lawyers finally got their hands on internal documents that turned the litigation tide. Why? Because the documents showed that the tobacco officials knew how dangerous their products were and did nothing about it.

Following the success of the tobacco litigation, dozens of cities fashioned a similar argument about the public-health and crime-related costs they were forced to pick up from gun violence and brought negligence and public-nuisance suits against the gun industry.

Alarmed, the gun industry and the gun lobby turned to lawmakers for protection.

Federal Protection for the Gun Industry

The result, in 2005, was the passage of the Protection of Lawful Commerce in Arms Act (PLCAA), which provides broad immunity to firearms makers and distributors in federal and state courts.

It's important to note that it's not unheard of for Congress to pass laws to restrict litigation that might seem unfair. After the September 11, 2001, terrorist attacks, for instance, Congress passed a law that barred civil actions against anyone providing assistance to the intelligence community. What's uncommon about the PLCAA, however, is that it provides blanket immunity to an entire industry as opposed to a specific industry conduct.

“Never before had Congress granted a single industry such extensive legal protection – not has it done so since," The Trace reported last year.

PLCAA's wall of protection has frustrated many plaintiffs who have attempted to breach it with seemingly triable cases. For instance, the parents of one of the victims of the movie-theater shooting massacre in Aurora, Colorado, in 2012, sued several Internet retailers for negligently selling ammunition and other equipment to the shooter without proper safeguards, but a federal court ruled that their claims were preempted by PLCAA.

Defenders Tout Second Amendment Rights

Why does an industry that makes and sells such deadly products deserve such special protection?

Gun-rights organizations contend that PLCAA is needed because the gun industry is special due to its connection to a constitutional right, the Second Amendment. They also argue that it is needed to defend an industry that is a target for “frivolous lawsuits."

In any event, the forces that seek greater accountability from the gun industry are not going away any time soon. They might even be gaining momentum.

Last September, a Pennsylvania appellate court ruled that the PLCAA is unconstitutional. If it stands, that would mean the gun industry could not use the PLCAA to defend itself in Pennsylvania. It would also mean that the case – and the issue of legal immunity for the gun industry – could end up before the U.S. Supreme Court.

There's a tendency to think that justices would lean toward the Second Amendment with any gun-related case, but attorney Jonathan Lowy of the Brady Center told Reuters that the Pennsylvania case is really a 10th Amendment case that could appeal to conservative interpretation of states' rights. The plaintiffs in that case argued that the PLCAA violated the 10th Amendment because it strips states of their power to rely on their own laws to hold the gun industry accountable.

The Pennsylvania case involved a shooting death that resulted when one boy shot another with a Springfield Armory semiautomatic handgun that had one cartridge in the chamber, thinking it was empty because he had removed its magazine clip. The deceased boy's parents argued that Springfield was negligent in selling a gun without a “magazine disconnect" device, but lost at the trial stage when a judge dismissed it, citing PLCAA.

But on appeal, the plaintiffs shifted their approach, focusing on the apparent exception in PLCAA about cases involving “knowing violation" of state or federal laws that are “applicable to the sale or marketing" of a firearm or ammunition. The case became a 10th Amendment case and the appellate court agreed with their argument.

Sandy Hook and a Bankruptcy

The language about “knowing violation" was also at the heart of a lawsuit brought by families of the Sandy Hook victims against Remington Arms, and when the U.S. Supreme Court declined to hear Remington's PLCAA-based challenge in November 2019, that meant the families could proceed with their case alleging that the shooter was motivated by advertising to commit his crimes. In August, however, Remington filed for bankruptcy and the status of the families' claims is unknown.

Now, in New Jersey, Attorney General Grewal is focusing on the same apparent exception within the law. He's saying that Smith & Wesson “knowingly violated" the law.

Did they?

The answer may lie in their own internal documents.

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