2nd Amendment, Friedman, Uncategorized

The Supreme Court, the Second Amendment and Consumer Protection

It turns out that New York State Rifle & Pistol Association v. City of New York was not a watershed Second Amendment decision. That much-discussed case concerned a New York City prohibition on the transportation of firearms outside the city. After the Supreme Court agreed to hear the case and before oral argument, state and city laws were changed to permit individuals to transport firearms. These changes in the law rendered moot a case that many observers believed could provide the court an opportunity to expand upon its Second Amendment doctrine in favor of gun rights advocates.

Because New York State Rifle & Pistol Association turned out to be a non-event, the most important Second Amendment case of this term was Remington Arms Co. v. Soto—a case you might have missed if you blinked. Though the Supreme Court’s only involvement in Soto was a denial of certiorari, it is notable that there were not four votes among the justices to reconsider a state court decision holding that the families of the victims of the Sandy Hook massacre could take the defendants, all manufacturers and dealers of firearms, to trial for their part in the victims’ deaths.

The case involved the scope of a 2005 law, the “Protection of Lawful Commerce in Firearms Act,” which gives firearms manufacturers and dealers immunity from suit when a third party has committed a crime with guns they produced or sold. The Connecticut Supreme Court held that the law did not preclude the families’ suit against the defendants, because the circumstances fell within the statutory exception for “predicate acts”—in this case, the predicate act was the defendants’ marketing of the assault weapon used by the Sandy Hook gunman, which promoted using the weapons for illegal purposes. The court reasoned that Congress would not have wanted to exclude firearms manufacturers and dealers from the reach of a state’s consumer protection laws, which allow individuals to sue defendants for unscrupulous marketing that results in harm.

Remington appealed the decision to the U.S. Supreme Court and, in its petition for certiorari, relied primarily upon what it saw as the state high court’s erroneous construction of the statute. In its amicus brief in support of Remington, however, the National Rifle Association made a Second Amendment argument, contending that the individual right to bear arms for self-defense would be rendered “meaningless if Americans cannot acquire firearms because of liability imposed upon the firearm industry for the criminal misuse of firearms by third parties.” Also making a constitutional argument, another amicus brief equated the First Amendment with the Second and suggested that the Connecticut decision, if it were to stand, potentially would allow liability to be imposed upon the manufacturers of printing presses for libelous statements whose publication they enabled.

These constitutional arguments apparently did not move the justices. As an initial matter, it is worth noting that the Soto decision merely allowed the plaintiffs to proceed to trial. Recognizing that firearms manufacturers and dealers are not immune from suit does not mean plaintiffs inevitably will prevail—and a few victories by plaintiffs in such cases most likely will have no greater effect than incentivizing defendants to be more careful about how they market their wares. Neither is the First Amendment comparison quite right. It is difficult to see, for example, why a cellphone manufacturer should enjoy immunity when it intentionally recommends hurling its phones at people’s heads to get their attention. There is no free speech reason why the First Amendment should allow communications platforms to escape liability when plaintiffs seek compensation for injuries fairly traceable to marketing that effectively encourages customers to use a product in illegal ways.

While it is never advisable to try and read too much into the Supreme Court’s denial of a petition for certiorari, perhaps in this case a majority of the justices recognized that the Soto decision correctly understood the Protection of Lawful Commerce in Firearms Act’s predicate acts exception as confirming the authority of states to protect their citizens from potentially dangerous products. On this view, firearms are essentially indistinguishable from numerous other products, such as automobiles, jet skis, and power tools. All of these items have perfectly legal uses—as well as illegal ones, the potential harm from which states have a strong interest in avoiding.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.