Marshall H. Tanick, BridgeTower Media Newswires
“I gave the categorical order to confiscate the largest number of weapons of every sort and kind.”
— Italian dictator
Benito Mussolini
“I’ve got a firm policy on gun control; if there’s a gun around, I want to be the one controlling it.”
— Actor/director
Clint Eastwood
It’s been nearly four months now since the three mass shootings in Gilroy, California, followed a week later in El Paso, Texas, and then Dayton, Ohio, that killed and injured dozen of victims.
President Trump initially responded by promising bold action, raising the possibility of supporting expanded background checks for purchasers and even “red flag” legislation at the federal level.
While he subsequently retreated when taken to task from his friends and financiers at the National Rifle Association (NRA), he later characteristically swerved and hinted support for at least upgraded background checking. He also said weeks ago that an administrative legislative proposal would be unveiled momentarily for submission to Congress.
But other events intervened in the nation’s capital: impeachment proceedings, military withdrawal from Syria, the slaying of the ISIS leader, and even the Nationals participation and triumph in the World Series (Congratulations, Nats). As a result, gun safety has receded from a blazing issue to the back-burner, despite these new shootings, taking a dozen lives in Santa Clarita and Fresno, California, which have very restrictive gun laws, and Oklahoma, which does not.
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Pair of proceedings
But the inattention at the White House does not mean that the once-lively issue of gun safety is now dead.
A couple of miles away, a pair of pending proceedings at the U. S. Supreme Court could profoundly affect gun safety issues nationally. One to be heard on Monday, Dec. 2, is a NRA-backed lawsuit entitled New York State Rifle and Gun Association v. City of New York, No. 18-280, which challenges a quirky New York City law barring lawful gun owners from transporting their weapons outside the municipality, even on innocuous occasions such as taking them out for target practice, hunting, or to their cabins or other residences for their personal safety beyond Gotham.
The challengers argue that the unusual measure “violates their right to bear arms” under the Second Amendment to the Constitution, the first time the high court will consider that clause in nearly a decade dating back to the 2008 case of Washington District of Columbia v. Heller, 554 U.S. 570 (2008), in which it narrowly struck down by a 5-4 vote a District of Columbia law restricting private gun ownership, followed two years later by McDonald v. Chicago, 561 U.S. 742 (2016), in which, by the same margin, and the same judicial alignment, the court applied that Heller ruling to state and local laws as well.
The Second Amendment contention made by the gun owners group in the New York City case is one that many observers believe has merit. The current composition of the court augments the likelihood of success, which some gun safety advocates fear could make it harder to enact legislation they support.
Indeed, the challenge seems to have so much potency — and potential risks to current and future gun safety legislation — that the city has repealed the law and has argued, so far unsuccessfully, that the lawsuit is now moot and should be dismissed without adjudication. The justices rejected that argument earlier this term but have left it dangling and subject to re-visiting at oral argument next week.
While that litigation is likely to yield the first high court ruling on the Second Amendment in the last decade, another one with even more magnitude, one faces a more uncertain future. It’s Remington Arms Co. v. Soto, No. 19-168, which arises out of the mass slaying seven years ago this month of 26 students and educators at Sandy Hook elementary school in Connecticut. The families of nine of the decedents are suing the manufacturer of the AR-15 style rifle used in the massacre, claiming that it recklessly marketed the weapon to disturbed young men like the one who used it for the slaying, promoting it as the acquisition of a “man card.”
But to succeed, the claimant must overcome an ominous obstacle: a 2006 federal law, 15 U.S. (27 § 7902(a)), the benignly entitled Protection of Lawful Commerce in Arms Act, which immunizes manufacturers from suit. The ban was hurdled by the Connecticut Supreme Court earlier this year, 33 Conn. 53 (2019). By a narrow 4-3 vote, the tribunal deemed a ban in the state consumer protection law of false or misleading advertising, trumped the Federal law (no pun intended), based on the gun maker’s advertising phrases like “consider your man card re-issued.” While the federal measure proscribed civil lawsuits based on a “negligent entrustment” theory, it does not immunize false or deceptive advertising, as asserted by the claimants.
Gun safety proponents see the case as a vehicle for similar lawsuits in other states with their own consumer-friendly laws. Defenders of the federal immunity law view the merits of the Connecticut case differently, but on one matter both sides could concur: the case is likely to be a harbinger of prospective gun safety claims and Second Amendment defenses. The NRA, a participant in the high court appeal, views the lawsuit as “a bell-weather for the future of firearms litigation nationwide.”
But that bell might not toll, yet. The justices in the nation’s capital decided two weeks ago not to take up the case, declining to issue a writ of certiorari and letting it play out to a finale in the lower courts before possibly weighing-in at some future date while the lead issues are yet to be resolved, the litigation may have impacted the practical and political aspects of firearms safety.
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Marshall H. Tanick is an attorney with the Minnesota law firm of Meyer Njus Tanick.
