The decision by the Supreme Court last month to allow a major case against the gun industry to go forward is setting the stage for what could finally be a turning point in the fight to hold gun manufacturers accountable for gun violence. The case was brought by family members of people who died in the Sandy Hook Elementary School shooting.
At issue in the case, called Remington Arms Co. v. Soto, is whether a law passed by Congress in 2005 — the Protection of Lawful Commerce in Arms Act, or PLCAA — prevents lawsuits by victims and survivors of victims of gun violence against gun manufacturers under unfair trade practices laws, or other “broad, generally applicable” laws governing trade.
In 2018, gun rights advocates celebrated the 10th anniversary of the Supreme Court’s decision in Heller v. Washington D.C., the most important Second Amendment decision in U.S. jurisprudence. It was Heller that finally settled the question of whether the Second Amendment granted private, individual citizens outside of a militia context the right to bear firearms. The Heller decision, authored by Justice Antonin Scalia, was more a word-game playing exercise in political polemic than serious judicial analysis, something which dissenting Justice John Paul Stevens argued at the time and which 7th Circuit Appellate judge Richard Posner has argued since. With Heller, the gun industry overcame the most high-profile obstacle to its grandest dreams of unending profit: efforts by legislators to constrain market size by criminalizing ownership of its product.
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This is because for years, efforts to control the proliferation of guns had been centered on licensure and possession, the idea being that increasing the punitive risk of possessing a gun if you’re not “supposed” to have one would bring down the number of unlawful shootings. States and municipalities relied on the lack of judicial consensus on whether individuals had a constitutional right to have a gun to pass laws limiting the types of guns that could be sold and making the process for buying a gun onerous. Heller, in one fell swoop, made any legislative effort focused on possession a legal liability for state and local government.
So serious was this legal liability that basically any effort to pass limiting legislation is impossible. Assisted by the National Rifle Association (NRA), more than 40 states have passed so-called preemption laws that prohibit cities and counties from regulating the possession and licensure of guns. Preemption means the state government — a “sovereign” government under the United States federal system — “occupies the field” of gun regulation, and therefore any effort by cities to regulate guns are null and void ab initio, meaning from the moment they are enacted. Some states went as far as to grant standing to out-of-state groups (like the NRA) to sue municipalities that attempt to “interfere” with the rights of private citizens to own and possess firearms of any kind.
These types of efforts to prevent gun violence failed not because of the superior or inferior political strategizing or legal argumentation of one side or another, but because of the titanic profits of the gun industry. So long as there are institutions with such immense resources and a material interest in protecting their market, legislative efforts to control gun violence by criminalizing the product are destined to fail.
For generations, gun control advocates have seen a flood, and tried to fight it with mops and towels rather than taking a wrench to the spigot. The wave of mass shootings and gun violence in recent years — in fact, a 17 percent increase in the 10 years after Heller was decided — have moved masses of people, including youth impacted by gun violence, to demand some kind of solution, only to find that the gun industry, in tandem with a federal court system increasingly dominated by the intellectually dishonest “Second Amendment originalist” thinking of Scalia, has short-circuited reform efforts.
It has, therefore, become clear that weakening the gun industry is a necessary prerequisite to dealing with gun violence. Criminalizing gun ownership, besides being increasingly impossible, only shifts the burden of addressing a public health concern on individuals who are the most likely to experience heavy policing. Even without Heller, the focus on criminalizing ownership would warp a policing regime that already ignores the Fourth Amendment rights of the working class and in particular people of color, on the basis of needing to root out illegal ownership. As became obvious with the murder of Philando Castile for legally possessing a gun, the gun industry and its front groups like the NRA are not concerned with how over-policing impacts those groups; their concern is with ensuring their market is not interfered with.
The PLCAA was passed by a jittery gun industry in the wake of successful litigation brought by cities and state attorneys general against the tobacco industry, seeking damages for that industry’s practices in knowingly perpetuating what was by then an immense source of public health expense on states, cities and individuals. That litigation resulted in the “Tobacco Master Settlement Agreement,” which imposed ongoing costs and court-supervised industry practices on the major tobacco manufacturers. Seeing the writing on the wall — and no doubt sensible of the significantly more profound damages their product represented — the gun industry lobbied the George W. Bush administration and a Republican Congress to grant the industry what amounted to full immunity from any lawsuit that could hold them liable for the public effects of the use of their weapons.
It’s important to understand how unique the PLCAA is in U.S. tort law. The federal government has rarely (if ever) simply made it impossible to sue an entire category of actors for tort damages, without some alternative way to seek compensation — for example, the National Vaccine Injury Compensation Program allows people who have suffered side effects from mandatory vaccinations to seek compensation from a specially dedicated federal court, but then to go on to the normal court system if they are unsatisfied with the result. The federal government created this program because while those who are harmed by vaccinations should be able to seek redress, the industry that manufactures vaccines is a critical component of our public health system, and allowing them to be sued into nonexistence would have profoundly deleterious effects. Even though vaccine manufacturers are obviously more important than gun manufacturers, they are offered less protection from litigation than companies that make devices intended to kill.
The Soto case was filed in Connecticut state court, basically seeking to hold gun manufacturers liable for marketing their weapons as effective means of killing large numbers of human beings, under the Connecticut Unfair Trade Practices Act. The gun industry sought to strike the plaintiffs’ complaint because the PLCAA precluded any liability. Ultimately, the state Supreme Court held that the case was not preempted by the PLCAA, which contains a “predicate exception” for violation of laws that do not target guns specifically. In other words, the PLCAA allows gun manufacturers to be sued for violation of laws that are not just gun regulations — they cannot be sued for liability for the general impact of guns, but they can be sued for a “predicate” violation of another law. The gun manufacturers argued that the PLCAA’s predicate exception was not intended to allow lawsuits for violating very broad laws like the Connecticut Unfair Trade Practices Act, and sought a petition for writ of certiorari to have the state Supreme Court decision reversed.
The U.S. Supreme Court denied the industry’s writ petition, and so the case will proceed. The gun industry rightly sees this as a serious hazard to their profit, as well they should. The reckless sale of guns through wholesalers, gun shows and the general industry practice of manufacturing weapons with no regard for what the reasonable lawful market size is has caused thousands (if not millions) of deaths, and plaintiffs’ attorneys and state attorneys general will be eager to recover some of the immense public costs that have been absorbed as a result of the gun industry’s insatiable lust for profits without concern for the cost in blood.
In an amicus brief friendly to the gun industry filed by 22 state attorneys general, it was precisely the risk to the gun industry’s profits — euphemistically called “economic activity” — that was cited as a reason to grant certiorari and reverse the Connecticut court’s decision:
It will be no comfort to industry actors that novel claims like respondents’ ultimately may fail on the merits. For small businesses in the amici States, the cost of defending against such suits — perhaps more than one at a time and in multiple States — may be too much to shoulder. Take, for example, recent experience in Illinois, where a state licensing scheme recently shuttered half of the State’s gun dealers. The cost was too much for Birds ‘N Brooks Army Navy Surplus; now it is “out of the gun business.” Stories like these may become the story for an entire industry faced with a new wave of suits. As these examples illustrate, the decision below poses an economic threat to businesses that form an important component of the amici States’ economies. The Court should confirm that Congress eliminated that threat when it enacted the PLCAA. [Internal citations omitted].
As is often the case, the industry actors understand what well-intentioned activists may not: that winning site-by-site fights for marginal regulations will not turn the tide, so long as there are well-resourced institutions with a fierce material interest to protect themselves. Big corporations, unlike advocacy nonprofits and activist groups, are not prone to fatigue. They can wage legislative and lobbying wars of unending duration and unremitting ferocity so long as they have the capital to do so. No strategy for combatting gun violence that does not include sapping the ability of the industry to warp the law into a suit of armor will ever do more than achieve statistically marginal change.
The Supreme Court’s decision to decline the case does not mean there is a definitive interpretation of the PLCAA’s predicate exception to accommodate these kinds of lawsuits. There is no precedential authority to denied writ petitions. In theory, the denial of a writ petition impacts only the parties in that particular case. In practice, by not settling the issue (termed the “Question Presented” in the writ petition), the Court is allowing similar cases to be brought elsewhere until such time as there is a need for the Court to address growing discrepancies in how the law is being interpreted.
Across the U.S., attorneys general should be watching the Soto case closely. The case will now proceed on the merits and evidence produced in discovery, meaning that the plaintiffs’ attorneys will have an opportunity to develop a fact-specific case to bring to a jury. What works, and what does not, could provide a blueprint for how big class-action firms and government attorneys can build cases against the gun industry that could impose serious and wide-ranging liability for their practices of marketing and flooding communities with guns. Particularly in an election year, announcing such cases can be an attractive way for elected officials to demonstrate real, legally viable commitment to finally taking on the gun industry frontally. The public may finally have an opportunity to meaningfully challenge the legal power of the gun industry to trivialize its political opposition.