In one fell swoop, the Supreme Court of the United States struck a blow to gun manufacturers and a victory for federalism.

On Nov. 12, the High Court rejected an appeal from Remington Arms. The company sought dismissal of a civil suit filed in Connecticut state court arising from the Sandy Hook Elementary School massacre, in which 20 students and 6 adults were killed. The Supreme Court did not comment on its decision not to hear the case.

Remington, based in Madison, North Carolina, asserted that the company should be shielded from liability after Adam Lanza took an AR-15, owned by his mother, and went on a shooting spree at the Newton, Connecticut school. Remington based its appeal to the SCOTUS on a congressional act – specifically the 2005 Protection of Lawful Commerce in Arms Act, also known as the “Gun Protection Act,” signed into law by President George W. Bush.

The SCOTUS was correct to reject the case as it is not a federal matter.

Erwin Chemerinsky, a respected constitutional scholar and law professor, explains that the purpose of the 2005 law is “To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm caused solely by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed or intended.” (Emphasis added.)

Mr. Chemerinsky feels that the law should revert back to the 10-year “Assault Rifle” Ban, signed into law by Bill Clinton in 1994, which expired in 2004. Such a ban, he argues, is not a violation of the Second Amendment, and he cites District of Columbia et al .v. Heller, (2008) to support his position. As I have argued, Heller opened the door to more, rather than less, gun control. I previously explained that any ban in the AR-15 is unconstitutional when it emanates from Congress.

Citing the landmark case, Chemerinsky asserts that “(t)he court was very clear that this (the right of individuals to have handguns for personal defense) is not an absolute right, and nothing in the court’s opinion implies that there is a right to have all forms of weapons.”

Where both the law professor and the conservative jurists run astray of constitutional originalism is in the fact that the Second Amendment is merely a reaffirmation that, other than the power to arm the militia (Article I, sec. 8, cl. 16), Congress has no constitutional authority to regulate or infringe upon the preexisting right to keep and bear arms — at all. The Second Amendment, then, is a restriction upon the general government, not a right conferred upon the People subject to regulation — “reasonable,” “common sense,” or otherwise.

The immediate effect of the decision is that families of the shooting victims can proceed with their lawsuit against the gun manufacturer in Connecticut courts. Earlier this year Connecticut’s State Supreme Court held that family members are “entitled to have their opportunity to prove their wrongful marketing allegation.” In other words, the U.S. Supreme Court’s refusal to take the case means the people of the state of Connecticut are not prevented by an act of Congress, of dubious Constitutional nature, from having their claims adjudicated.

The “Gun Protection Act” affected the rights people to have their cases heard by Congressional decree, a power not within their delegated authority, but justified by perhaps a misinterpretation of one of the “elastic clauses,” for instance, the Commerce Clause (Article I, sec. 8 clause 3) or the Supremacy Clause (Article VI, sec. 2).

The Tenth Amendment states the following: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Determining who has a cause of action in civil cases (tort law) is a matter that properly remains with the states. Occasionally, federalism results in outcomes we don’t like. The proposed National Concealed Carry Reciprocity Act is one such example. While it appears to be a “win” for gun owners, it is an assault on the States’ powers to determine the issuance of permits based on the desires of state residents. Seeking top-down solutions will result in fewer rights, not more, particularly given the increasing anti-gun sentiment among the population, legislatures and judges, federal and state.

The claims of the families rest in tort law and hinge on an alleged violation of a law of the state of Connecticut intended to protect consumers. In typical product liability cases, one of the threshold inquiries is whether the product at issue was fit for its intended use, or was defective. The plaintiffs here claim that Remington’s marketing targeted younger “at-risk” males partly from product placement in video games inspired Adam Lanza to commit his atrocious act; they also claim that such marketing was made in violation of a Connecticut state consumer protection law that prohibits advertisements promoting criminal behavior.  Further, they claim that Remington should never had made weapons as dangerous AR-15 available to the public, the rationale being that the weapons are highly lethal whose sole purpose is to commit the illegal act of killing other human beings.

Ignored in all of this is the history of why the Second Amendment was ratified. While those seeking to ban these weapons label them “weapons of war,” having no lawful use in the hands of civilians, the founding generation held a very different view on the issue, and that view was the prevailing attitude when the states ratified the Constitution and the Bill of Rights.

St. George Tucker wrote the first systematic commentary on the Constitution, and provided context to the right to keep and bear arms and its role in preventing standing armies: “Wherever standing armies are kept up, and when the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

Rather than respecting the admonitions of men like Mr. Tucker, gun control advocates resort to ad hominem arguments like the one stated above; if AR-15s have no legitimate purpose other than unlawfully killing human beings, then clearly these instruments of death must be removed from all levels of law enforcement. Herein lies the great contradiction among this contingency; a firearm in the hands of a law-abiding citizen is an instrument of death, but is perfectly acceptable in the hands of government employees.

In attempting to take this case to the Supreme Court, a tactic backed by the National Rifle Association, Remington ran the risk of the High Court giving its blessing to such lawsuits, and there would be no challenges available to the defense for such liability at the state level; unfortunately, challenges as the state level also make firearms manufacturers vulnerable to some very large judgments against them, and it will only take a few to bankrupt them. That is the point of these lawsuits — to bankrupt the manufacturers and ultimately make these firearms no longer available to the public. Perhaps they will eventually escape liability when the only customer they have is the government, a scenario our founding generation fought a war to avoid.

Gun control enthusiasts can also take advantage of the federal system to attack firearms manufacturers under the auspices of consumer protection, as is the case here. Ultimately, the solution that would respect our federal system of government would be to have the Supreme Court recognize that this case should be properly adjudicated respecting state laws, with an unbiased jury pool rejecting claims such as the ones set forth in this case. Ultimately, this is the only way gun manufacturers and owners will emerge victoriously. Defeat these cases at the state level when appropriate, as is the case here. The folly of such lawsuits should be recognized, but the right to decide and argue them belongs in the appropriate forum and not be arbitrarily limited by congressional fiat.

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