Jay Jones, the anti-gun but pro-bullets to the head Virginia attorney general, announced on September 15 the creation of the Firearms Accountability & Industry Responsibility (FAIR) Unit within the Civil and Criminal Justice & Public Safety Divisions of his office. The unit’s job will be to bring civil enforcement actions against firearm industry members under the recently enacted Virginia Firearm Industry Standards of Responsible Conduct.
True to the Orwellian spirit of the gun control enterprise, the process promises to be anything but fair. The fact that the AG’s office is spinning up an entire unit to target a lawful and constitutionally protected business sector begs the question, just what are Virginia’s gun dealers doing wrong? The answer, under Virginia’s new legislation, is that they’ll find out when they get sued for it.
Gun bans get most of the attention when it comes to firearm policy, and this applies to both sides of the issue. But with the U.S. Supreme Court poised to determine the constitutionality of banning some of the nation’s most popular firearms, gun prohibition advocates are already planning their next offensive. Their target is the U.S. firearms industry, already one of the most heavily regulated in the country.
As Virginia’s law illustrates, however, compliance with known rules will no longer be enough under the new regime. Instead, gun related businesses could find themselves subject to civil suits anytime they do something the sworn enemies of the Second Amendment consider “unreasonable.” And, so long as they’re selling guns and related items, you can bet they’ve already crossed that invisible threshold.
Codified under Virginia Code § 59.1-148.6, the “standards of responsible conduct” provide essentially no guidance as to what is expected to remain on the right side of the law. On the one hand, a “firearm industry member” may not “knowingly create, maintain, or contribute to a public nuisance through the sale, manufacture, importation, or marketing of a firearm-related product” by “conduct … unreasonable under all the circumstances[.]” On the other, the same industry member is required to “establish and implement reasonable controls regarding the manufacture, sale, distribution, use, and marketing of the firearm industry member's firearm-related products.”
Purported violations of the act are enforceable both by the AG’s office and by private litigants who claim to have been injured by an act or omission on the part of a firearm industry member prohibited by the act. Courts are empowered to award an aggrieved plaintiff with “any … appropriate relief[.]”
The law further specifies that good faith on the firearm industry member’s part is irrelevant: “To prevail in an action under this section, the party seeking relief is not required to demonstrate that the firearm industry member acted with the intent to engage in a public nuisance or otherwise cause harm to the public.”
To summarize, the act allows individuals who despise the Second Amendment and all who are involved in its practice to enforce entirely open-ended standards against gun-related companies and subject them to whatever penalties they can get a court to sign off on.
We reported on how this works in practice last year by describing a case from New Jersey, which has a similar law. In that instance, the New Jersey AG sued a gun shop for not applying sales requirements the legislature specifically requires for “handgun gun ammunition” to other products that were not handgun ammunition. No harm arose from the supposed violation, which involved undercover buys of lawful products by agents of the AG’s office itself.
But the AG’s office nevertheless convinced a court to require the shop to implement additional requirements for the sale of ALL its “gun-related” products, even though no such requirements for those products were ever enacted by the legislature.
The court admitted it did not know what “reasonable controls” the law required the shop to implement, but they must have been something beyond merely following the rules already codified in the law for gun businesses. Because the shop had not implemented any additional steps, it was, as a matter of law, in violation. The AG’s list of remedial measures, the court found, was not inconsistent with the “spirit and intent of the statute,” so the court deferred to them.
The law, in other words, forces gun businesses to guess at their responsibilities, and allows anti-gun litigants, in collaboration with anti-gun courts, to make up the laws governing firearm-related commerce as they go along.
If this sounds like it should be illegal, it’s because the law is not only a direct affront to the Second Amendment, but to constitutional due process, the separation of powers, and the Protection of Lawful Commerce in Arms Act, as well. All this, of course, makes it irresistible to Second Amendment deniers who treat each Supreme Court case recognizing the right to keep and bear as the occasion to enact additional gun control laws.
NBC affiliate News5 interviewed a firearm retailer in Bristow Virginia, who spoke to the aggravation industry members are already experiencing under the law. Noting there has been no guidance or communication on the legislation’s expectations, he said: “I think they are just trying to get gun shops, distribution and firearms out of Virginia. I think it’s just completely anti-second amendment at this point.”
While that may be the intent, recent judicial decisions on the legislature’s “assault firearms” ban demonstrate that the rule of law in Virginia has not been completely dismantled. The depredations of the FAIR Unit will similarly not go unchallenged.
Stay tuned to these pages for further updates on this unfolding story.
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