Jan 25, 2024

Another explainer about the Protection of Lawful Commerce in Arms Act. More references, more better. Mexico and the blood vultures are so eager to find their way around the PLCAA.
(2000 words)

The Sandy Hook people got away with it because they sued Remington for violating a law about advertising, not guns, gun sales, etc… The PLCAA has nothing to do with it. Granted, it “sort of” applied because of the advertised product, but in reality, the entire lawsuit was outside of the PLCAA.

No, they got away with it because the Connecticut Supreme Court didn’t want to follow the constitution nor congress.

15 U.S.C. §7903: The Protection of Lawful Commerce in Arms Act

Congress finds the following:

  1. The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
  2. The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.
  3. Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.
  4. The manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act [26 U.S.C. 5801 et seq.], and the Arms Export Control Act [22 U.S.C. 2751 et seq.].
  5. Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.
  6. The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.
  7. The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.
  8. The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.
Protection of Lawful Commerce in Arms, 15 USC § 7901 Ch. 105 sec. 7901 (U.S. 2022)

Congress looked at what was happening and determined that lawsuits were being filed against firearms entities and that this was an abuse of the legal system. Not only was it an abuse of the legal system, it was usurping the power of congress.

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. PLCAA § 7901 Ch. 105 sec. 7901

So the PLCAA is designed to prohibit cause of action against firearms entities for harm solely caused by criminal or unlawful misuse.

That seems pretty clear to me. “Causes of action” is any suit.

The Mexico action and the Sandy Hook actions are both causes of action. They harm that was committed was by a criminal (mass murder and drug cartels). They unlawfully misused firearms. This means that the cause of action is stopped by the PLCAA.

The PLCAA has some exceptions

an action brought against a transferor convicted under section 924(h) of title 18, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted
PLCAA § 7901 Ch. 105 sec. 7903

This is under definitions. The congress is telling us that if a firearms FFL holder is convicted under 18 U.S.C. §924(h), then they can be sued and the PLCAA does not protect them.

Whoever knowingly receives or transfers a firearm or ammunition, or attempts or conspires to do so, knowing or having reasonable cause to believe that such firearm or ammunition will be used to commit a felony, a Federal crime of terrorism, or a drug trafficking crime (as such terms are defined in section 932(a)), or a crime under the Arms Export Control Act (22 U.S.C. 2751 et seq.), the Export Control Reform Act of 2018 (50 U.S.C. 4801 et seq.), the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), or the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1901 et seq.), shall be fined under this title, imprisoned for not more than 15 years, or both.
Penalties, 18 U.S.C. § 924 (U.S. 2022)

This says that if an FFL is knowingly selling to criminals, then he can be sued, not withstanding the PLCAA.

My first dealer, FFL that is, told me a story of how he got jacked up by the MD State Police.

A young man came in to purchase a gun. He filled out the 4473 and the MD 4473 equivalent. My FFL took as documentation the man’s MD driver’s license.

The MD NICS check was done. My FFL was given a “proceed” result. The gun was then placed in the FFLs safe and the young man was told to come back in 21 days to pick up his gun.

After the young man took possession of his gun, the MD State Police paid my FFL a visit.

They were going to send him to prison for selling to a disqualified individual. Seems that the young man was a police cadet. He was not old enough to purchase a handgun. The State Police had the DMV issue a license with a bogus date of birth to the young man.

My FFL was somehow supposed to look at a young man that can pass for 17 or 25, look at their “fake” ID issued by the same people using the same equipment as the actual “real” IDs, and deny a sale to this young man.

Even if he had worries, he did the background check. I’m pretty damn sure that a fake ID would have flagged. This young man’s ID didn’t get flagged.

So regardless of doing everything right, the state had my FFL over a barrel.

The PLCAA has a mens rea in the code. “Knowingly”. To say that Smith and Wesson “knowingly” sold to criminals is moronic. Did they know that some of the people who purchased their products would commit crimes? Yes. Does that make them responsible in any way? No, it does not.

an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought …
PLCAA § 7901 Ch. 105 sec. 7903

Again we see “knowingly”. The Sandy Hook case is based on the idea that Remington violated the Connecticut Unfair Trade Practices Act.

Let’s hear how the lawyers for Remington put it:

Immunity under the PLCAA is subject to certain limited exceptions. One such exception allows actions to proceed where a manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing of [a firearm or ammunition],” and the violation proximately caused the plaintiff’s harm. 15 U.S.C. § 7903(5)(A)(iii). This is known as the “predicate exception” because liability requires a knowing violation of a “predicate statute.” City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 390 (2d Cir. 2008).
Petiton For Writ of Certiorari at 2–3, Remington Arms Co. V. Soto, 140 S. Ct. 513 (2019)

This is what the First Circuit was asking about during oral arguments, the “predicate exception”. The Connecticut Supreme Court, in a 4-3 decision, said that the predicate exception should encompass any statute that was capable of being applied.

Of course, this was and is ridiculous, it guts the PLCAA.

[The Connecticut Supreme Court’s opinion] is also plainly wrong. This case is an archetypical example of the kind of lawsuit Congress sought to preempt, raising claims indistinguishable from those routinely asserted in the pre-PLCAA litigation that drove Congress to respond. The PLCAA’s operative text, Congress’s findings and purposes, and the PLCAA’s legislative history all point to one conclusion: General unfair trade practices laws like CUTPA are not encompassed by the predicate exception.
id. at 4

The Supreme Court should have heard the case. They did not. At some point —Estados Unidos Mexicanos V. Smith & Wesson Brands Inc., No. 22-1823 (1st Cir. Jan. 22, 2024) it is going to get to the Supreme Court for consideration.

These types of cases are always difficult to deal with. The CUTPA would easily withstand a Second Amendment Challenge. It is not directed at a core constitutionally protected right. If the state were to charge a firearms manufacturer under CUTPA, that could be challenged under the Second Amendment, or First Amendment, on an as applied basis. And would win in a reasonable court.

Moving back to the PLCAA, it is clear from the statute with its statement of findings and purpose, that the Congress wanted to stop nuisance actions against firearms entities. At the same time, they would rather not hand out a “get out of jail free” card.

The language of the statute says … and the violation was a proximate cause of the harm for which relief is sought, including—PLCAA § 7901 Ch. 105 sec. 7903

This language means that this is not an inclusive list of exceptions. Other exceptions might also fit. Again, the congress was attempting to ensure that firearm entities could be taken to court for real faults.

The listed proximate exceptions are falsifying required records, making false statements about the lawfulness of a firearm trade, aiding or abetting the sale or disposition to a prohibited person.

The Connecticut Supreme Court added a third to that list, creating an advertisement that sold guns.

Mexico is echoing these arguments.

Miguel, J. Kb., bad guy and I are all at Shot Show. We look at the flashing neon signs and loud noises and we all rush over to the S&W booth. The advertisement for a new breakdown 9 mm carbine has attracted us.

All three of us went home and ordered that carbine through our LGS. We fill out the 4473, get our background checks done. Go home to send 9 mm freedom seeds down range.

The fourth gets home, tells his sister’s husband’s mother’s son to go to the LGS and buy the same carbine. Bad guy also gets the carbine, without doing a background check.

Bad guy uses that newly acquired carbine to murder a rival.

According to Mexico and the Sandy Hook vultures, S&W was targeting that bad guy, not the three of us. They were intentionally attempting to get those bad guys to buy S&W firearms.

Since they “knew” that their ads were targeted for evildoers, that means that they lose the protection of the PLCAA.

It is pure crap.

The PLCAA was designed explicitly to stop the Sand Hook vultures and the scum of Mexico from having a cause of action against people that were not doing anything wrong.

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By awa

5 thoughts on “PLCAA”
  1. If Mexico wants to cut off the cartels from weapons, they need to disarm the Mexican government.

  2. “No, they got away with it because the Connecticut Supreme Court didn’t want to follow the constitution nor congress.”

    I will stand by my assertion. The lawsuit was about advertising, not guns. When the CT Supreme Court got the case in front of them, they can only base their opinion on the case itself. They cannot make assumptions.
    The gun grabbers filed a suit that claimed Remington violated the CT advertising law. They claimed Remington was marketing their products irresponsibly. IF their lawsuit claimed Remington held some responsibility for the shooter, it would not have passed any sniff test, and the CT Supreme Court would have tossed it. Even the anti-gunner know that. (
    That is (in my IANAL opinion) law. If you cannot attack directly, find some law that will give you a crack to exploit. When the case gets appealed to a higher court, do everything you can to ensure the superior court must focus on that crack, not the overall picture.
    Now, you are likely correct that the CT Supreme Court is anti-gun, and they wanted the case to proceed. But, had it shown up as a PLCAA case, not an advertising case, they would have no choice but to shoot it down. It did not. They got an out, and they took it.
    Final note. I am pretty sure that the lawyers representing Remington did a slaphappy job of presenting their side. Even with my limited knowledge of the law, I could have turned the plaintiff’s argument into a PLCAA case without a lot of effort. Added proof… They settled. A trial would have required the plaintiffs to demonstrate the advertising was irresponsible. That is a very high bar. And, then prove the irresponsible advertising led to the attack. Damn… that just raised the bar higher.
    If you really want to blame anyone for that settlement, blame Remington’s lawyers.

    1. As I understand it (and I could be wrong), Remington was in the midst of bankruptcy and their insurance company (who was paying for their lawyers) decided to cut their losses by just settling.

    2. I’m sorry I didn’t communicate better. That is why I went down the rabbit hole. The PLCAA does cover the types of actions the Sandy Hook vultures attempted. The Remington Lawyers got the case dismissed in the lower court on PLCAA grounds. The CT Supreme Court then said that the “proximate exception” could be used to bring in a claim about advertising.
      If this had been an advertising case, then they would not have been looking for millions of dollars.

  3. The Sandy Hook circus was just one of many instances that has proven the left is only concerned with destroying freedom and rights. And since the majority of judges are leftists they prevail far more often than they should. The entire legal system is corrupt. Expecting justice from a corrupt system is folly.

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