As regular readers know, I’ve been following the Sandy Hook Elementary School attack in Newtown, CT since it occurred on 12-14-12. All of my articles on that case may be found by entering “sandy hook” or “newtown” in the SMM homepage search bar. Not only did I do a definitive analysis of the attack, but of the mental health commission that absolved the mental health profession of any responsibility for missing potential warning signs in the shooter and all future potential shooters, but—and this is no surprise—blamed guns and gun owners. That article may be found at The Truth About Guns, here.
In Newtown Revisited, December, 2017, I wrote of the continuing attempt by some parents of children killed in the attack to sue Remington. A Remington subsidiary manufactured the rifle the killer used. At the time, a lower court dismissed the lawsuit because of 15 USC 105, The Protection of Lawful Commerce in Arms Act (PLCAC). The law merely clarified the standard principle of law that manufacturers of lawful, non-defective products may not be sued for the misuse of those products by others. This was necessary, because the anti-liberty/gun movement adopted the tactic of using lawfare to bankrupt not only manufacturers of firearms, accessories and ammunition, but any business trading in those lawful products. I wrote:
Reflecting the will of the people, Congress, in 2005, passed The Protection of Lawful Commerce in Arms Act (PLCAC), 15 USC 105. It’s statement of purposes is uncommonly clear and precise:
(b) Purposes. The purposes of this chapter are as follows:
(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.
(2) To preserve a citizen’s access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.
(3) To guarantee a citizen’s rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.
(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.
(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.
(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.
(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.
Those wishing to read the entire statute may take the link, but simply put, the law was designed to prohibit harassing, baseless, nuisance lawsuits whose goal was to deprive the law-abiding of a fundamental, unalienable right. In that goal, the law has been mostly successful, though many companies and individual business owners have been forced to pay substantial legal fees in the process of getting judges, some quite reluctantly, to admit the law exists and prohibits such lawsuits.
The case was originally thrown out, but appealed to the CT Supreme Court on the novel–insane–legal theory that Remington marketed the gun with the intent and knowledge that people would get killed.
The danger is a leftist court may allow the case to proceed despite the very clear law prohibiting it. This would entirely ignore the purpose of the law and its clear text. Probably, any judgment that might be rendered against Remington would be overturned on appeal—eventually—but that is precisely the state of affairs the PLCAC was written to prevent: lawfare designed to bankrupt the manufacturers of lawful, necessary products.
Perhaps one day, the ghosts of Sandy Hook, and those living left behind, will be allowed to rest, but not today, not in Connecticut.
They found a Leftist court, and once again the ghosts are being denied rest, as Legal Insurrection reports:
The statutory issue is whether violation of a state consumer protection statute by a gun manufacturer satisfies the exception for protection as a predicate act. The CT Supreme Court ruling that such a consumer protection violation was a predicate act would eviscerate the effectiveness of the PLCAA. As the NY Times describes, the consumer protection theory was that the AR-15 was marketed in a way that made it likely troubled people like Lanza would use the gun to commit a crime:
‘In the lawsuit, the families seized upon the marketing for the AR-15-style Bushmaster used in the 2012 attack, which invoked the violence of combat and used slogans like ‘Consider your man card reissued.’
Lawyers for the families argued that those messages reflected a deliberate effort to appeal to troubled young men like Adam Lanza, the 20-year-old who charged into the elementary school and killed 26 people, including 20 first graders, in a spray of gunfire….
In the 4-3 ruling, the justices agreed with a lower court judge’s decision to dismiss most of the claims raised by the families, but also found that the sweeping federal protections did not prevent the families from bringing a lawsuit based on wrongful marketing claims. The court ruled that the case can move ahead based on a state law regarding unfair trade practices.
“Unfair Trade Practices.” Let us, gentle readers, review the facts of the Sandy Hook attack. The killer was odd indeed, and a variety of diagnoses were applied, but none requiring commitment, and none that consistently stuck. Over virtually his entire life, innumerable mental health practitioners examined him. None saw the slightest indication he was dangerous or planning an attack, nor did anyone else that knew him. With the exception of the Internet, and by choice, he was virtually isolated from the outside world, and there is no evidence he patronized firearms related sites or advertisements.
He did not buy the rifle he used in the attack. He did not, in any material way, respond to advertising. The rifle belonged to his mother. The day of the attack, he murdered her in her sleep–with another of her guns–and took it. There is no evidence she was anything but a responsible gun owner.
There is no causal trail. There is no evidence the killer was influenced by any generic or specific advertising Remington may or may not have used, nor can there be any evidence he so much as glanced at such advertisements. The gun he used was stolen; he did not buy it; it did not belong to him. He was carrying two other guns from other manufacturers–a Sig and a Glock–that could easily have caused as much, or more damage, though he chose to use the Glock to end his life. This is interesting:
Additionally, the CT Supreme Court practically dared the U.S. Supreme Court to take the case by opining that the AR-15 may not even be covered by the 2nd Amendment:
‘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.
The AR-15 pattern rifle used in the attack is not, by definition and in fact, an “assault rifle,” the primary identifying feature of such weapons being fully automatic fire. It is “quasi-military”—a very sloppy formulation—only in its outward resemblance to actual assault rifles used by the military. By the same poor reasoning, all shotguns are quasi-military, as are all handguns and scoped, bolt-action rifles, because these classes of arms are used by the military and closely resemble their military counterparts. The court misrepresented the Heller decision:
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. [skip]
And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home. [skip]
But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.
Heller is most correctly read to understand that the weapons in common, usual use, are clearly protected. Heller does not specify beyond the general class of handguns, but a weapon such as the AR-15 class of rifles, the most popular, common centerfire rifles in America, are surely equally protected.
The Minneapolis Star Tribune also covered the issue:
A gun industry group, the National Shooting Sports Foundation, which happens to be based in Newtown, said the state Supreme Court ruling was an ‘overly broad interpretation’ of an exception to the 2005 federal law.
‘The majority’s decision today is at odds with all other state and federal appellate courts that have interpreted the scope of the exception,’ the group said in a statement, adding it ‘respectfully disagrees with and is disappointed by the court’s majority decision.
As well it should be.
Joshua Koskoff, a lawyer for the plaintiffs, has said the Bushmaster rifle and other AR-15-style rifles were designed as military killing machines and should never have been sold to the public. He accuses Remington of targeting younger, at-risk males through ‘militaristic marketing and astute product placement in violent first-person shooter games.
This suggests this suit, and the Connecticut Supreme Court’s political decision, is a discovery fishing expedition in the hope of finding something, anything, that might be embarrassing or that might damage Remington’s profitability. What possible evidence can there be that Remington “astutely” placed the most popular and ubiquitous rifle in America in “violent first-person shooter games?” There is no need for any game manufacturer to get the permission of, or to pay, any manufacturer to depict a generic weapon. Winning the suit is secondary:
Robert J. Spitzer, chairman of political science at the State University of New York at Cortland and an expert on guns and the Second Amendment, said the Connecticut ruling runs counter to the 2005 federal law. Even though the court allowed the case to proceed, he said, there still be a very high bar for successfully suing Remington.
‘The likelihood they’ll succeed is small,’ he said.
This is not at all about consumer protection. That’s only the dishonest, extra-legal ruse used by a Leftist majority of the Court to keep the case alive. They have allowed precisely the conduct the PLCAC was written to prevent: the bleeding to death by a thousand abusive lawsuit cuts of the gun industry, a dishonorable perversion of the judiciary to get what Leftists want but cannot get through the legislative process. If the people don’t know what’s good for them, use politicized judges to force it down their throats.
If the Supreme Court accepts this for review, it’s possible the decision will be reversed—if the law actually matters–but there is no guarantee they’ll grant cert, nor that if they do, Chief Justice Roberts will not once again go squishy on fundamental rights or clear statutory language. If this is the case, normal Americans will know that the law is whatever Leftist judges say it is, and see even less reason to participate in the process.
The ghosts of Sandy Hook continue to be denied rest in the service of those that would make such attacks more, not less, likely.