In 2005 congress passed Protection of Lawful Commerce in Arms Act often referenced as “PLCAA”. this was a bipartisan bill where both Democrats and Republicans worked together to protect the arms industry.
There are people out there that hate that we possess firearms. They look at the instrument and believe that if the instrument is no more than there will be no more violence committed with guns. They are correct, if there are no more guns then there will be no more gun crime.
The reality is that there will never again be a time when there are no guns. In countries with almost total gun bans bad people still have guns. Japan has some of the most stringent firearm laws in the world. Almost nobody owns a gun. Yet a man was able to build a gun and use it to assassinate a politician.
The fact that their goal is not obtainable has never stopped them from trying to rid the country of all guns. Their goto argument is “it would be worse without the gun control laws that are already in place.” We see this with every win where we claw back more of our right to keep and bear arms. “The streets will run red with blood if you let people own guns legally!”
The almost always leave off the “legally” part because if they actually said it outloud people might start to question how a law that makes it illegal to possess/carry a gun affects a person that has decided to commit a crime like murder.
There are a number of posts about how they fight the battle in the chambers of state and in the courts, but there is another attack vector, that of making it too expensive to own or commerce in arms.
Consider the case of Kyle Rittenhouse. Kyle did nothing illegal. The firearm he was carrying was legally purchased. He was legally carrying it. He was in the place he was legally. He did nothing illegal.
Then a mentally deranged criminal started to chase him. He ran and when he could run no more he fired killing that criminal. He started to render aid when the mob started after him. He ran again.
When the mob had chased him down they attacked him. They tried to kill him with a club (long board) and when he responded with a shot they started to back off but one did not and attacked him again. He fired and killed that attacker, also a convicted criminal. A fourth man started to attack him but stopped. Kyle did not fire. That fourth man then did attack and Kyle fired again, destroying that man’s arm.
All of this was caught on multiple different cameras.
Kyle is still being punished for this. First he was prosecuted criminally. He spent time in jail and had to raise huge amounts of money for his defense. When he was found innocent of all charges he was set free. At that point the civil cases started and they are ongoing as of November 2022. It is unlikely that he will be free of these attacks via lawfare for many many more years to come.
The process is the punishment.
People entered the capitol building on Jan 6th, 2021. Those people are suffering from lawfare. Some have been held in jail for so long that they are pleading guilty just to have a chance of getting their lives back.
Prior to the PLCAA the gun grabbers where getting laws passed as fast as they could to make it as difficult as possible to legally purchase or carry a firearm. They were not satisfied. Even with all of their infringements people were still buying guns.
The answer they came up with was to remove firearm stores and manufacturers from the civilian market. The method they choose was to haunt the grieving like ghouls from a horror film. The parents grieving because their gangbanger son had been shot robbing the local store were prayed upon by these ghouls.
The ghouls showed up and whispered sweet nothings into the ears of the grieving. “Your son was executed.” “Your son never had a chance.” “He shouldn’t have shot your son, he should have called the cops and waited.” “If he hadn’t of had a gun your son would still be alive.” “He is responsible for the cold blooded murder of your son.” “Not only him, but the guy that sold him the gun.” “The guy that sold him the gun got it from manufacturer who has lots of money.”
In just a few days the parents or loved ones go from grieving the loss with anger and revenge in their hearts to having a target for all that hurt and anger. Not only the man that shot their son, but the entire chain that lead to that instant.
And the ghouls did this time and time again. These cases would be filed and the defendant would need to hire a lawyer to represent them. Even if it is a cheap lawyer it is going to cost in excess of $10k to go to court. And in cases like this, where the plaintiffs are well funded, that will skyrocket.
Just listen to the adds selling “CCW insurance.” $100K before you see the courtroom and upwards of a million after.
This was driving small businesses out selling firearms. The gun grabbers with their ghouls were succeeding.
That is until the people reached out to their representatives and pushed for the PLCAA. With the PLCAA the cost of being sued because somebody else did something wrong fell greatly. To the point where it was almost possible to write a short note to the court yourself saying “PLCAA” and having the case dismissed.
The gun grabbers have hated the PLCAA since the day it was signed and they have been looking for away around it.
After Sandy Hook the ghouls showed up and pretty soon the lawsuits were filed against all the regular targets.
And they got tossed out under the PLCAA.
The ghouls went back to the well and regrouped. They decided to go after Bushmaster. Bushmaster had been sold to Remington so this was seen as very deep pockets.
The gravamen of the plaintiffs’ complaint was that the defendants negligently entrusted to civilian consumers an assault rifle that is suitable for use only by military and law enforcement personnel and violated the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) through the sale or wrongful marketing of the rifle. The plaintiffs’ first theory
of liability was that the rifle is a military grade weapon that is grossly ill-suited for legitimate civilian purposes such as self-defense or recreation, that the rifle and other similar semiautomatic weapons have become the weapon of choice for mass shootings and, therefore, that the risks associated with selling the rifle to the civilian market far outweigh any potential benefits, that the defendants continued to sell the rifle despite their knowledge of these facts, and that it therefore was negligent and an unfair trade practice under CUTPA for the defendants to sell the weapon, knowing that it eventually would be purchased by a civilian customer who might share it with other civilian users.
The plaintiffs’ second theory of liability was that the defendants marketed the rifle, through advertising and product catalogs, in an unethical, oppressive, immoral, and unscrupulous manner by extolling the militaristic and assaultive qualities of the rifle and reinforcing the image of the rifle as a combat weapon that is intended to be used for the purposes of waging war and killing human beings. The plaintiffs alleged that the defendants advertised this rifle differently from how they would promote and sell rifles intended for legal civilian purposes such as hunting and recreation. In connection with this second theory of liability, the plaintiffs also alleged that the defendants’ marketing of the rifle to civilians for offensive assault missions was a substantial factor in causing the decedents’ injuries in that L’s attack, had it occurred at all, would have been less lethal if L had not been encouraged by the defendants’ marketing campaign to select the rifle in question as his weapon of choice.
Bushmaster moved to have the case dismissed via the PLCAA. The lower court agreed. The appeals court agreed. Then the Connecticut supreme court got involved.
For the reasons set forth in this opinion, we agree with the defendants that most of the plaintiffs’ claims
and legal theories are precluded by established Connecticut law and/or PLCAA. For example, we expressly reject the plaintiffs’ theory that, merely by selling semi-automatic rifles—which were legal at the time1—to the civilian population, the defendants became responsible for any crimes committed with those weapons.
So the court says that Bushmaster can’t be sued for selling the weapon as that was protected under the PLCAA. Unfortunately they go on:
The plaintiffs have offered one narrow legal theory, however, that is recognized under established Connecticut law. Specifically, they allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior. Following a scrupulous review of the text and legislative history of PLCAA, we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers. Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations. We affirm the trial court’s judgment insofar as that court struck the plaintiffs’ claims predicated on all other legal theories.
In other words, what Bushmaster did was perfectly legal, but they can be sued for the deaths because they advertised incorrectly.
This was appealed to the Supreme Court but certiorari was denied.
At this point Remington was bankrupt and out of business. They were selling of the different parts of the company to pay creditors. When all that was left there was only a legal shell which was still being sued. The only people at risk at this point where the insurance carriers. They were on the hook for a great deal of money if they lost in court and they were on the hook for a great deal of money if they continued the fight.
If they would have continued the fight the case would have been heard by the lower court in CT. Nobody knows how they would have ruled. Regardless of that ruling it would have been appealed at the state level back to the CT supreme court. At that point it is likely that the parties would have again appealed to the US Supreme Court which may or may not have granted certiorari.
While many have decried the insurance companies settling out of court we really can’t fault them. They are not part of gun culture in the least. They are money people and they see everything in terms of money.
We should be faulting the CT Supreme court. If you read the 148 pages of the opinion you will find that not all of the Judges agreed. That it sounds an awful lot like a group of people attempting to get the results they wanted rather than what was legally required.
At this point we see another Lawfare case going on. Down in Uvalde. The plaintiffs have a long list of defendants. All of the police officers are going to duck out of the final case because they have no duty to protect. If any of the officials of the school district or city are found guilty the taxpayers will pay the bill. When everything is said in done, it is likely that this case will end up only against the gun manufacturer and retailer.
The question will become, will the state courts of Texas all apply the PLCAA correctly and how much will it cost to have that happen.
IANAL warning…
The only reason why the Remington suit got any traction was because it was about advertising, not firearms. Granted, no one would sue GM for advertising, not realistically, but that got the toe in the door with the CT Supreme Court.
Personal opinion.
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Let’s see how the Uvdale, TX case goes.