Smith & Wesson Lawsuit Reveals Stealth Attack Against Gun Industry

With the filing of a federal lawsuit on Tuesday, gunmaker Smith & Wesson revealed a new front in the war on your guns; New Jersey Attorney General Gurbir Grewel has begun a widespread crusade targeting firearms manufacturers; ostensibly over their advertising practices, but in reality because of their very existance.

As the Wall St. Journal first reported, Grewel has issued a subpoena seeking a range of internal documents relating to how their guns are advertised, including claims of the safety of the company’s products, whether they “make a home safer, or enhance one’s lifestyle; whether an untrained consumer could successfully and effectively use a Smith & Wesson firearm for personal or home defense; and whether private citizens should have the right to carry a concealed firearm.”

Rather than rolling over for the anti-gun Attorney General, however, Smith & Wesson fired back with litigation challenging the subpoena and maintaining that Grewel’s actions are an “abuse of his position” undertaken “to suppress a political viewpoint with which he disagrees.”

The lawsuit argues that Grewel’s anti-gun ideology has led him to join gun control activists in targeting gun makers through “lawfare,” noting, for instance, that Grewel has specifically hired a law firm named Paul, Weiss, Rifkind, Wharton & Garrison, LLP with an eye to target gun manufacturers. That firm is also counsel for a little-known coalition called FACT, which is comprised of anti-gun litigators from Giffords, Brady, and other gun control groups. FACT’s mission is to “craft creative legal strategies” to advance the gun control agenda, and at the moment, going after gun manufacturers for their advertising is seen as a tactic with a lot of potential.

The gun industry had been largely free of legal attacks since a 2005 federal law granted it immunity from liability claims over gun violence.

But in 2019, the Connecticut Supreme Court said an AR-15 maker could be held legally responsible for marketing practices that allegedly made the semiautomatic gun the weapon of choice for mass shooters. That court overturned the dismissal of a wrongful-death lawsuit brought by families of victims of 2012’s mass shooting at Sandy Hook Elementary School.

Since then, the parents of a woman killed in the 2017 Las Vegas massacre have filed a wrongful-death lawsuit against the manufacturers of the AR-15 style rifles used by the gunman under a similar theory.

Unlike the two cases mentioned by the Wall St. Journal, it doesn’t appear as if Grewel’s subpoena is connected to any particular event. Instead, it looks like a fishing expedition on the part of the Attorney General, as well as an attempt to chill gunmakers’ speech, which is exactly what the attorneys for Smith & Wesson argue in their complaint.

Through the Subpoena, purportedly acting pursuant to the New Jersey Consumer Fraud Act, the Attorney General commands Smith & Wesson to produce a vast collection of documents on a number of topics, most of which are, at bottom, opinions on either legal issues or matters of current public debate. These statements of opinion should not be subject to review by State officials for “accuracy,” and cannot form the basis of any investigation sounding in “fraud.”

For example, the Subpoena treats as fraudulent, any alleged position that guns enhance safety. To the extent Smith & Wesson has ever advocated for such a position, it is an opinion held by many people, many of whom are customers of Smith & Wesson’s business. The search “do guns make you safer” in Google returns 248 million results. Some of those returns reflect the position that guns do not make one safer, while others present the exact opposite position.

The Subpoena also demands that Smith & Wesson defend what appears to be a legal position on the Second Amendment – to wit, the Subpoena demands the company’s position on “[w]hether Smith & Wesson [f]irearms can be legally carried and concealed by any [c]onsumer, [i]ncluding by New Jersey [c]onsumers, while in New Jersey[.]” This purported legal position cannot constitute a statement sounding in fraud.

On and on and on the questions continue, with many of them indeed reflecting a matter of opinion as opposed to incontrovertible fact.

The remainder of the Subpoena constitutes an unconstitutional fishing expedition into virtually all of Smith & Wesson’s purported advertisements and marketing materials, going back decades. Moreover, as evidenced by the Attorney General’s close coordination with antiSecond Amendment Activists, this fishing expedition is aimed at obtaining documents for use by those anti-Second Amendment Activists. To wit, the Subpoena demands:

a. “copies of all [a]dvertisements for [Smith & Wesson] [m]erchandise that are or were available or accessible in New Jersey [c]oncerning home safety, concealed carry, personal protection, personal defense, personal safety, or home defense benefits of a [f]iream[;]

b. [a]ll documents [c]oncerning any test, study, analysis, or evaluation considered or undertaken . . . which relates to, addresses, evaluates, proves, disproves, or substantiates any [c]laim made in th[ose a]dvertisements[.]”

The Attorney General warns Smith & Wesson in the Subpoena that “[f]ailure to comply with this Subpoena may render [Smith & Wesson] liable for contempt of Court and such other penalties as provided by law.”

As the Second Amendment Foundation’s Alan Gottlieb told me in response to the news of Grewel’s witch hunt, “New Jersey may have been the first state to ratify the Bill of Rights, but their Attorney General is the last person to recognize it.”

Grewel’s not just going after Smith & Wesson. The National Shooting Sports Foundation’s Larry Keane says that he’s aware of a number of manufacturers who’ve been served with similar subpoenas, and we’ll be talking more about that later today on Bearing Arms’ Cam & Co.

The Association of New Jersey Rifle & Pistol Clubs has sued Grewel several times over the state’s gun control laws, and the group’s executive director Scott Bach told me in a conversation on Tuesday evening that the “out-of-touch” AG can’t be satisfied merely by restricting the Second Amendment rights of those who set foot or live in the Garden State.

“Now they want to blame others outside of New Jersey for problems they have been unable to solve,” Bach continued. “Instead of severely punishing criminal behavior inside New Jersey, they have turned to falsely scapegoating those outside New Jersey who have done nothing wrong. Their efforts will fail.”

It’s clear that Grewel and the anti-gun attorneys involved with FACT have decided to pursue an anti-Second Amendment goal of bankrupting gun manufacturers by targeting the First Amendment rights of corporations like Smith & Wesson to not only advertise their products, but to speak about the right to keep and bear arms itself. I’m glad to see Smith & Wesson pushing back against Grewel and his gun control allies, and I expect we’ll see more companies do the same in the coming days. Let’s hope Bach is right and that the AG’s efforts fail, because if they succeed the results could be devastating for more than one of our rights.

Mar 03, 2021 10:30 AM ET