Gun industry marketing may end up before SCOTUS

Gun industry marketing may end up before SCOTUS
AP Photo/Patrick Semansky

The Protection of Lawful Commerce of Arms act is a bit unusual. It’s rare that Congress would enact protection for an entire industry to prevent unwarranted lawsuits from bankrupting it. However, the gun industry actually needed those protections.

Firearm manufacturers were facing a bevy of lawsuits from pretty much anyone looking for someone to blame. They were blamed for the actions of third parties, people who quite often never purchased the gun legally in the first place, and faced stiff penalties in court.

So, Congress acted.

Now, though, many anti-gun activists want to overturn gun industry protections while others are trying to find ways around them, as we’ve seen in several states.

It seems some are speculating about those latest efforts at bypassing the PLCAA ending up before the Supreme Court.

Buffalo’s lawsuit, filed in December, is one of the first cases of its kind under New York’s 2021 public nuisance gun law, which allows the state and people affected by gun violence to sue gun manufacturers, sellers and distributors for endangering the public’s health and safety — or creating a “public nuisance.”

The new statute and similar laws recently enacted in other states mark the latest round in a long-running battle between gun-control advocates and firearm manufacturers over a 2005 federal law that protects the industry from liability.

And this time, the issue could land before the Supreme Court, according to legal experts, as several Democratic-led states take a more aggressive approach to restricting firearms even after the court acted to expand gun rights last year by striking down a decades-old New York law that limited the ability to carry a handgun outside the home.

“For more than a decade, the court turned away basically every Second Amendment petition that it received,” said Joseph Blocher, a Second Amendment law professor at Duke University. But after last year’s ruling, “it could be that we’re going to be looking at multiple gun cases at the Supreme Court.”

The National Shooting Sports Foundation (NSSF), the gun industry’s trade association, is leading the challenge, arguing the new laws are unconstitutional because they are too vague, regulate transactions that take place outside of the states and are preempted by the 2005 law.

The laws are a “transparent and obvious attempt to circumvent the will of Congress,” said NSSF senior vice president Lawrence Keane.

A New Jersey federal judge sided with the group last month when he blocked the state’s law from being enforced, noting that it “is in direct conflict” with federal law. New Jersey has appealed the ruling.

And, at least in my mind, that’s only part of the issue here.

See, these “public nuisance” laws try to target the gun industry and its marketing. However, on top of the law being vague as to what constitutes “improper” marketing, there’s no requirement to show evidence that those who misuse the guns are even remotely familiar with the marketing in question.

In other words, gun companies simply wouldn’t be able to market at all if these states get their way about it.

I’m sorry, but nothing about that seems remotely right.

As a nation, we don’t punish people or companies for the actions of third parties without good cause. In the wake of the George Floyd riots, we didn’t seek to punish the news agencies that reported on Floyd’s death. Why would we? They did nothing wrong in reporting the news.

Yet similarly, the gun industry has to market new products. Otherwise, they cannot continue to exist.

You cannot blame them for what some maniac does with that firearm when nothing in their marketing remotely condones such an action.

So yes, this may well end up before the Supreme Court, and I suspect the gun industry hopes it does.

We’ve seen what the current makeup of the Court is and what it can do in support of the Second Amendment. I suspect these new laws seeking to undermine the PLCAA are going to be gutted if not completely overturned.

And that is very good news.