SECOND AMENDMENT BULLSHIT WEEK

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This past week we read, with despair, of the  carnage in Dayton, El Paso, and Gilroy. Added to that was an announcement by The Remington Arms company that it was asking the U.S. Supreme Court to review a Connecticut Supreme Court decision that allowed the parents of some of the 20 first graders killed in the AR-15 attack on the Sandy Hook Public School to sue Remington for the massacre of their children.

In connection with filing its petition for appellate review, Remington issued a highly misleading statement asserting that "Firearms are so central to American Society that the founders safeguarded their ownership and use in the Bill of Rights."

[Before proceeding further, your reporter herewith proudly discloses that colleagues in his law firm (Paul, Weiss) filed two briefs in the Connecticut Supreme Court in support of the plaintiffs.]

Okay, down to business. First, let's deal with Remington's highly exaggerated claim that firearms are so central to our society that their ownership and use were protected by the Bill of Rights. Ridiculous.  Even the 5-4 Heller opinion authored by Justice Scalia, --  which dramatically changed the prevailing assumption that the Second Amendment was limited to gun ownership by militiamen, -- carefully and specifically limited its conclusion to the possession of a handgun in the home, for purposes of protection against criminal invasion. The Heller court acknowledged the right of federal, state, and local legislatures to control and regulate arms in other circumstances. In fact, for the ten years between 1994 and 2004, the federal government outlawed assault rifles. Currently, a number of states and cities ban the weapons, and  the Supreme Court has refused to review appellate decisions upholding those statutes. And I am not aware of any challenge to statutes barring the sale of machine guns, sawed-off shotguns, etc. Remington's claim to the constitutional protection for "firearms" is bullshit.

The Connecticut Supreme Court Decision:

The court allowed the parents' claim to proceed. It rejected Remington's defense that it was immune from suit because of a 2005 federal law that prohibits suits against arms manufacturers for damages "caused by criminal or unlawful use of a firearm if the weapon functioned as designed or intended." In other words, if a criminal uses a well-built gun to commit a crime, the manufacturer is not liable for that use. Inasmuch as its Bushmaster version of the military AR-15 in the hands of Adam Lanza in the Newtown massacre did indeed function precisely "as designed and intended," Remington sought to avoid any legal responsibility for Lanza's use of the weapon to kill the children at the Sandy Hook schoolhouse.

There are three steps to the CT Supremes decision to permit the plaintiffs' case to proceed against Remington despite the federal statute. A look at the court's description of the weapon involved is instructive, and leads ineluctably to the court's decision:

1. The Weapon.

Quoting from the complaint, the court wrote:

''The AR-15 and M16 (military version) are highly lethal weapons that are engineered to deliver maximum carnage with extreme efficiency. Several features make these rifles especially well-suited for combat and enable a shooter to inflict unparalleled carnage. Rapid semiautomatic fire “unleashes a torrent of bullets in a matter of seconds.” The ability to accommodate large capacity magazines allows for prolonged assaults, and exceptional muzzle velocity makes each hit catastrophic. Indeed, bullets fired from these rifles travel at such a high velocity that they cause a shockwave to pass through the body upon impact, resulting in catastrophic injuries even in areas remote to the direct wound. Finally, the fact that the AR-15 and M16 are lightweight, air-cooled, gas-operated, and magazine fed, enabling rapid fire with limited recoil, means that their lethality is not dependent on good aim or ideal combat conditions. [The only difference between the civilian AR-15 and the military M16 is that the latter can be switched to fully automatic fire. The distinction is hardly significant: the military version can fire a 30-round clip in two seconds, while it takes the civilian version 5 seconds to do so!] These features endow the AR-15 with a lethality that surpasses even that of other semiautomatic weapons. The net effect is more wounds, of greater severity, in more victims, in less time."

[Adam Lanza managed to fire 154 rounds and kill 20 kids in just 4.5 minutes.]

2. Remington's Marketing

The core of the argument urging protection of civilian gun ownership are rights relating to a) personal protection, b) hunting, and c) recreational shooting. But Remington's Bushmaster version of the military assault rifle is no more suitable for home protection than it is to killing a deer. The assault rifle is designed exclusively to kill and wound large numbers of people in a short time, and that's the way Remington promoted it. The court referred to Remington advertisements to potential civilian customers:

i) Asserting the weapon's suitability for combat missions, promoting the standard 30-round magazine different from rifles used in hunting and sport shooting,

ii) Referring to it as the "ultimate combat weapons system,"

iii) Touting its "unparalleled destructive power,"

iv) Displaying the weapon in the foreground of US flags and military helmets, and

v)  Boasting the weapon "forces the opposition to bow down," because it opponents are "single-handedly outmanned" by a person wielding the AR-15.

3. The Basis of the Court's Decision

The Connecticut Supreme Court concluded the federal statute did not bar this civil claim because of an exception in the federal statute that allowed for liability for a manufacturer's "knowing violation of a ... state statute." A Connecticut statute barred "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." The court referred to what is known as the "Cigarette Rule" promulgated by the FTC, banning advertising that is "immoral, unethical, and unscrupulous," and found that Remington's advertising and marketing was "uniquely unscrupulous" and therefore was a knowing violation of Connecticut's statute. Hence, the federal law did not immunize Remington's knowing violation of that state law, and the plaintiffs could proceed with their case.

The court, hypothetically at least, analogized this case to the liability of a gun company that ran ads "depicting and glorifying school shootings."

The holding in this case is really quite narrow. It hangs on one company's marketing approach, and rules only that the claim may go the jury. But the description of the weapon, it's utility and disutility, points out the absurdity of civilian ownership of assault rifles.

Still, our elected representatives persist in protecting civilian use of a military weapon designed for the military's "spray not aim" approach to killing humans. What's wrong with us?

A bientot.

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