AP Photo/Jessica Hill, File
When word broke last week that the Connecticut State Supreme Court decided to allow a lawsuit against Remington to go forward, despite the Protection of Lawful Commerce in Arms Act, most of us were stunned. After all, federal law is pretty damn clear on the topic. A state supreme court can’t change that.
Yet, it kind of did. At least in this instance.
Writing over at National Review, David French argues it’s time for the Supreme Court to get involved.
Over the weekend, my colleague Kevin Williamson wrote an outstanding piece illuminating the ideology and opportunism behind a Connecticut Supreme Court opinion holding that the manufacturer of the semi-automatic rifle used in the Sandy Hook shooting may be held liable for violating state unfair-trade-practices statutes. The legal reasoning behind the ruling, if applied broadly, would directly defy federal law and could potentially deal a staggering financial blow to firearms manufacturers and sellers in the United States.
In the simplest terms possible, the Connecticut Supreme Court held that a lawsuit filed against Remington by the estates of nine Sandy Hook victims could proceed, based on the claim that the alleged “wrongful marketing” of the rifle used by shooter Adam Lanza “for illegal, offensive purposes was a causal factor in increasing the casualties of the Sandy Hook massacre.” If these words are read according to their plain meaning, it would seem the court is claiming that Remington literally advertised the weapon’s usefulness to criminals, but it did not. In fact, the court’s reasoning exposes the breadth of its ruling — and its direct threat to the First Amendment. Let’s break it down, piece by piece.
Now, here’s where the Connecticut court got very creative. There is no specific state statute banning any of the specific ads at issue in the case. So instead, the court took extraordinarily broad language from the Connecticut Unfair Trade Practices Act and considered whether the ads for the rifle were “unethical, oppressive, immoral, and unscrupulous.” And how were the ads potentially unlawful on those grounds? Because the marketing was “militaristic.” Here’s the plaintiffs’ description of the relevant ads:
The plaintiffs further contend that the defendants unethically promoted their assault weapons for offensive, military style missions by publishing advertisements and distributing product catalogs that (1) promote the AR-15 as ‘‘the uncompromising choice when you demand a rifle as mission adaptable as you are,’’ (2) depict soldiers moving on patrol through jungles, armed with Bushmaster rifles, (3) feature the slogan ‘‘[w]hen you need to perform under pressure, Bushmaster delivers,’’ superimposed over the silhouette of a soldier holding his helmet against the backdrop of an American flag, (4) tout the ‘‘military proven performance’’ of firearms like the XM15-E2S, (5) promote civilian rifles as ‘‘the ultimate combat weapons system,’’ (6) invoke the unparalleled destructive power of their AR-15 rifles, (7) claim that the most elite branches of the United States military, including the United States Navy SEALs, the United States Army Green Berets and Army Rangers, and other special forces, have used the AR-15, and (8) depict a close-up of an AR-15 with the following slogan: ‘‘Forces of opposition, bow down. You are single-handedly outnumbered.’’
Note that nothing — absolutely nothing — about those ads describes or urges illegal conduct. The claim is that the Sandy Hook shooter was “especially susceptible to militaristic marketing.” Yet the Sandy Hook shooter didn’t purchase his weapon. He murdered his mother and stole her weapon. Moreover, by no stretch of the imagination does “militaristic” use equate with “illegal” use. It takes willful misreading to claim that there is anything at all “unscrupulous” about stating that SEALs use similar (though hardly identical) weapons.
French isn’t wrong. Not by a longshot. There’s absolutely nothing wrong with marketing that elite military units use similar weapons or anything of the sort, especially if it’s true.
But the state supreme court is essentially claiming that doing so is tantamount to encouraging a mass shooting. That’s an incredibly broad leap that would have ramifications on not just the Second Amendment, but the First as well. After all, if firearms manufacturers are now suddenly unable to market their weapons based on truthful statements about the guns’ similarities to military hardware, their free speech has been curbed.
But what is this really about? French adds this bit:
What’s the intent here? Toward the end of the opinion, the court gives the game away:
There is no doubt that congressional supporters of PLCAA were committed to Americans’ second amendment freedoms and sought to secure those freedoms by immunizing firearms companies from frivolous lawsuits. It is not at all clear, however, that the second amendment’s protections even extend to the types of quasi-military, semiautomatic assault rifles at issue in the present case.
There you have it. The real target is the weapon, not the ad.
Yep. The issue isn’t that the ad was misleading or encouraged violent actions. No, it was that the anti-gun judges that make up the state supreme court don’t think that AR-15s and other such firearms should enjoy Second Amendment protections.
French goes on to add that the Supreme Court must get involved in this process, and I agree.
The fact of the matter is that this is a federal law designed to prevent these kinds of ridiculous lawsuits. Remington did absolutely nothing wrong. After all, as noted above, the gunman in the Sandy Hook massacre murdered his mother to steal her lawfully purchased firearm. There’s been no evidence presented showing Remington, or any other manufacturer, encouraged such a thing, yet they’re now being held responsible for the actions of a murderer who stole a gun to commit an atrocity.
What’s left but for the Supreme Court to step in and slap this nonsense down?