Without comment or dissent, the Supreme Court on Tuesday turned down a certiorari petition asking it to review a suit against gunmaker Remington over the Sandy Hook massacre, thus allowing the suit to proceed for now. The current suit, as green‐lighted by the Connecticut Supreme Court earlier this year over a dissent from three of its seven justices, claims that Remington violated the broad provisions on deceptive marketing of a state unfair‐trade‐practices law, the Connecticut Unfair Trade Practices Act (CUTPA). It should be emphasized that the case is still at an early stage and that the Justices will probably be presented with further opportunities to pronounce on its compatibility with the federal law that pre‐empts most gun suits, the Protection of Lawful Commerce in Arms Act (PLCAA). For example, some Justices might see PLCAA as pre‐empting some but not other claims under the state trade‐practices law, and await further factual clarification that could bring the incompatibility into sharper focus.
For now, the Court will not engage with the arguments made in the amicus brief by Cato and others that courts should give PLCAA a fair interpretation to prevent it from being a dead letter. The brief, by David Kopel and others, emphasizes that in some circumstances the workings of private lawsuits can impinge on individual rights guaranteed by the Constitution: exorbitant libel verdicts can menace freedom of speech, and similarly creative stretching of tort and public nuisance law can endanger Second Amendment rights. Just as the Supreme Court acknowledged the first point in New York Times v. Sullivan, so Congress acknowledged the second in enacting PLCAA.
It is noteworthy that both cases arose following litigation campaigns intended to undermine the rights in question. By organizing costly libel suits against defendants that included the New York Times, some Southern partisans of that day hoped to silence or at least discourage voices critical of their local officials. Decades later, advocates of gun control together with allies in government and trial lawyers pursued a litigation campaign intended to force the firearms industry into negotiations by threatening it with bankruptcy through litigation costs, whether it won or lost its cases.
Writes David Kopel: “In both cases, the stakes are the same: whether the Supreme Court will allow the misuse of tort suits to destroy an enumerated right.” And what the Supreme Court is being asked to do in cases like that of Remington, namely give effect to a statute duly enacted by Congress, is less ambitious and far‐reaching than what it was asked to do in Sullivan, namely craft entirely new Constitutional law in response to the problem.
Even given strong public emotion about the Newtown massacre, the claims against Remington are likely to fail in the end — assuming the law and the facts matter — since no evidence has been presented that any gun ad influenced either the shooter or his mother, who had two years earlier purchased the rifle he used. But many gun control advocates have been open in arguing that whether the suit wins or loses, it could serve as a vehicle for extensive discovery that would both inflict financial harm on defendant Remington and perhaps also unearth documents from which political and legal hay might be made in future controversies. The menace to rights is still very much a menace, and the reasoning behind the Protection of Lawful Commerce in Arms Act is as important as ever.