A Pennsylvania appeals court issued a ruling on Monday that, if upheld, could upend the firearms manufacturing industry and allow for a flood of junk lawsuits designed to put gun companies out of business. On today’s Bearing Arms’ Cam & Co, Larry Keane, the senior vice president and general counsel for the National Shooting Sports Foundation joins me to talk about the court’s decision and why its inherently flawed analysis should be overturned by the Pennsylvania State Supreme Court.
The case revolves around the shooting death of 13-year old J.R. Gustafson at the hands of his 14-year old friend back in 2016. According to the Gustafsons and their lead attorney, Jonathan Lowy of the gun control group Brady, the 14-year old had removed the magazine from the pistol before pointing it at Gustafson and pulling the trigger, not realizing that there was still a bullet in the chamber.
The 14-year old ultimately pleaded guilty in court to a charge of involuntary manslaughter, but the Gustafsons, with the backing of Brady, sued both Springfield Armory and the Pennsylvania department store that originally sold the firearm, claiming that the gun should have been designed so that it wouldn’t fire without a magazine in place, and that the lack of that feature makes the gun defective.
Springfield Armory invoked the Protection of Lawful Commerce in Arms Act in its defense, noting that the 2005 federal law is designed to prevent lawsuits that seek to hold firearms manufacturers and retailers responsible for the third party acts of criminals. The trial court judge ruled in the gunmaker’s favor, but on Monday, Superior Court Judge Deborah Kunselman overturned the trial court’s decision and declared that the PLCAA violates both the Constitution’s Commerce Clause as well the 10th Amendment, writing in part that:
“The constitutional safeguards that override the PLCAA are the structural pillars of American government. These principles ensure that local matters remain under the local authority of the states, and they prevent the federal government from becoming all powerful. Congressional tort-reform bills, like the PLCAA, have no place within that system; tort law and statutes reforming it are an exercise of police power reserved to the states under the 10th Amendment.”
As Keane points out in our interview, this is the first time in the 15-year history of the Protection of Lawful Commerce in Arms Act that a judge has reached this conclusion, despite multiple attempts by gun control activists to challenge the law in court.
As for Kunselman’s contention that the PLCAA violates the 10th Amendment, Keane observes that even anti-gun federal judge Jack Weinstein found that the law was constitutional in a case called New York City vs. Beretta even though he allowed the city’s lawsuit against the gun manufacturer to proceed. Weinstein’s ruling was ultimately overturned by the Second Circuit Court of Appeals, which ruled that the PLCAA didn’t violate the Commerce Clause or the 10th Amendment.
If you really want to dive deeply into the issues raised by Kunselman’s opinion, you can read the Second Circuit’s decision here, as well as this excellent article in the Kentucky Law Review by attorney R. Clay Larkin. While both were written more than a decade ago, they both explain why Kunselman’s decision is so off-base.
Keane says it’s a near certainty that Springfield Armory will appeal the Superior Court decision to the Pennsylvania State Supreme Court, and it’s possible that the case could ultimately reach the U.S. Supreme Court. In fact, Keane believes this case could be one of the first Second Amendment-related cases that Amy Coney Barrett could hear as a Supreme Court justice, though technically the case revolves more around the issues of tort reform, the Commerce Clause, and the 10th Amendment than it does the Second Amendment and the right to keep and bear arms.
What would happen if the PLCAA were ultimately determined to be unconstitutional by the nation’s highest court? According to Keane, gun control groups would begin filing dozens of lawsuits aimed at bankrupting the firearms industry and making it impossible to do business. Even guns that had been stolen and used in the commission of a violent crime would be the basis for litigation against the original manufacture and retail seller, and even if gunmakers prevailed at trial, the mounting legal bills would undoubtably spell an end to most gunmakers.
Be sure to check out the entire interview with Larry Keane in the video window above, and stick around for more news afterwards, including today’s armed citizen story, a recidivist report featuring a New York man recently accused of killing an 11-year old who was released from jail back in June after prosecutors failed to secure an indictment on robbery and weapons charges, and a Maryland police officer in the right place at the right time to save the life of an autistic teen who was choking on a piece of food.