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Political Report | Back To The Future: Anti-Gunners Again Look To The Courts With Dollar Signs In Their Eyes

Friday, April 1, 2016

Political Report | Back To The Future: Anti-Gunners Again Look To The Courts With Dollar Signs In Their Eyes

In January, anti-gun members of Congress introduced a bill to repeal the Protection of Lawful Commerce in Arms Act (PLCAA). Hillary Clinton had condemned the PLCAA to position herself to the left of her Democratic primary challenger, Sen. Bernie Sanders, who had voted in favor of the law in 2005 as a member of the House of Representatives. Sanders is now trying to protect his left flank by advocating for the PLCAA’s repeal. But to understand why he was right in 2005 and why both he and Clinton are wrong now, a history lesson is in order. 

We all know the sequence of events. A terrible crime committed with a firearm grips the public’s attention. Anti-gunners swing into action to exploit emotions. Sweeping gun-control legislation is introduced in Congress. Media outlets and gun-control groups whip themselves into a frenzy, blaming gun owners, gun sellers and Second Amendment advocates.

The outcome seems preordained. But it’s not preordained, because Americans have elected a pro-gun Congress, and NRA members refuse to be made scapegoats for someone else’s crimes. 

The White House seethes and promises to act without Congress, using every tool at its disposal. Meetings are held, orders are issued and threats are made. Meanwhile, the president’s collaborators in the media, entertainment, academia, law and medicine fall into ranks to support whatever restrictive policies his advisers think will win an advantage. 

If that scenario sounds familiar in the age of Barack Obama, it was equally so during the presidency of Bill Clinton. But Clinton had one tool at his disposal that Obama does not. During the Clinton era, dozens of municipal lawsuits—coordinated by the White House and backed by the threat of federal litigation—were launched specifically as an end-run around Congress. It was a devious plan, and it might have worked. 

The plan’s success, however, was not dependent on the soundness of its legal arguments. The plaintiffs had hoped to persuade courts to hold gun dealers and manufacturers responsible for the acts of third-party criminals who harmed people with the guns the defendants made and sold. They claimed that the making and selling of firearms constituted a public nuisance. The making and selling of guns—the keeping and bearing of which is constitutionally protected—was being portrayed as a legal wrong in itself.  

Imagine that. The making and selling of guns—the keeping and bearing of which is constitutionally protected—was being portrayed as a legal wrong in itself. The legal theory also flew in the face of established principles of tort law, which hold that a person does not have a duty to protect another from the criminal acts of a third person, absent a special relationship between the parties. 

Of course, this was the 1990s, and the legal establishment generally dismissed the notion of any individual right under the Second Amendment. Moreover, government “scientists” at the Centers for Disease Control and Prevention [CDC] were promoting the falsehood that firearms are a disease in need of a “cure.” If the courts could ignore the Second Amendment, they surely could create extraordinary rules of tort liability that applied specifically to gun manufacturers and sellers. 

But winning cases wasn’t really the point. The point was to bankrupt the industry by forcing it to fight dozens of cases in multiple jurisdictions at once or to extort “settlements” in which industry members adopted gun control “best practices” and subjected themselves to the plaintiffs’ oversight. 

And you can be sure that’s exactly what anti-gunners would be doing today if Congress hadn’t stepped in with the PLCAA. Far from creating a special “immunity” for the gun industry, it simply ensures that the industry isn’t treated differently from any other type of business.

Thus it prohibits suits by a person for harms “resulting from the criminal or unlawful misuse of a [firearm or ammunition] by the person or a third party.” 

It does not prevent suits based on violations of law pertaining to the unlawful sale or transfer of firearms to prohibited persons or to product warranty or defect claims. It does not bar claims arising from situations in which “the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” 

That’s why Sanders was right before he was wrong, and it’s why the PLCAA stands for nothing more than giving members of the firearm industry a fair shake under the law. And that’s also why anti-gunners seek its repeal. Election Day 2016 is our opportunity to remind them just how wrong they are.

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