It took our NRA friends at Fairfax less than 24 hours to respond to the opinion published by the Connecticut Supreme Court after the Court deliberated Soto v. Bushmaster for more than 15 months. And what the boys from Fairfax said is what is always said by the alt-right when a legal decision goes the other way, namely, that it was the product of an ‘activist’ court; ‘activist’ being a code-word for any judicial opinion they don’t like.
The reason Gun-nut Nation doesn’t like the decision is because it may start a trend around the country where busybody tree-huggers and other liberal types who hate guns will dig up some consumer-protection statute in their state which can be used to take away from the gun industry its beloved federal protection from torts, a.k.a. the Protection of Lawful Commerce in Arms Act, a.k.a. PLCAA. This law exempts the gun industry from the kind of lawsuits that have been plaguing the tobacco industry for years, namely, taking responsibility for damages from their product even when the product is sold in a lawful way.
When PLCAA was passed in 2005, the law contained certain exemptions for state laws that gave consumers a basis for legal redress if the product’s use created an injury or a financial loss. Connecticut has such a law, known as the Connecticut Unfair Trade Practice Act (CUTPA), and it was this law which was used by the Sandy Hook plaintiffs to ague their case. It was also this law that the CT Supreme Court majority held to be applicable while a minority of the justices said it was not. I’ll deal with each in turn but first I have to mention a detail of the case that may prove difficult for some to read.
On the morning of December 12, 2012 a 20-year old named Adam Lanza woke up, took a bolt-action, single shot rifle and shot his sleeping mother in the head. He then took an AR-15 rifle with multiple, hi-capacity magazines, drove to the Sandy Hook Elementary School and within five minutes killed 26 adults and children, then pulled out a pistol and took his own life.
Adam Lanza didn’t own the AR-15. His mother had purchased the gun a year earlier, and at no time did she state that she had purchased the gun for him. This is the reason that the case could not go forward under the doctrine of negligent entrustment, because the plaintiffs would have been required to prove that the actual purchaser of the product had used it in an unsafe manner, which was obviously not the case.
At the same time, the CT Supreme Court majority held that the case could proceed under CUTPA, because that law “authorizes any person who has suffered an ascertainable financial loss caused by an unfair trade practice to bring an action,” no matter who committed the unfair act. The majority further found that the PLCAA law exempted CUTPA because even though PLCAA exempted only laws which specifically referred to firearm commerce, the CUTPA statute prohibited unfair or deceptive advertising in any kind of commerce, which would supersede the specific limitation found in PLCAA.
What was the minority opinion which the NRA grasped like a veritable last straw? It was the idea that since PLCCA only covered state laws which contained specific reference to guns, that the CUTPA law couldn’t be used by the plaintiffs in this case. And if there is any doubt about where the NRA stands on this issue, they applauded the minority dissent because it would protect the gun industry from – ready? – frivolous litigation, obviously a category which includes the Sandy Hook case.
How many people have to get killed by someone wielding an AR-15 before such an act would’nt be considered frivolous? Only 17 people were killed at Parkland, so I guess that one was even more frivolous an event than what happened at Sandy Hook. Maybe we should set the bar at 50 dead bodies, maybe 100, maybe more.