Why The 'Sandyhook' Suit Against Remington Is a Towering Threat to All Americans

P. Gardner Goldsmith | November 18, 2019


Numerous liberty-minded Americans are justifiably angry that the U.S. Supreme Court just allowed what the pop media loosely call the “Sandyhook Families’ case against Remington Arms” to proceed. But in their celebratory anti-gun harangues, the shallow popsters offer very little information about the suit, and, in most cases, they peddle the cliched alternative: anti-rights propaganda.

So this is our chance to lay out what’s really going on, and grasp some powerful information to take with us.

The case is actually called, “Soto v. Bushmaster Firearms International, LLC”, and was brought to the SCOTUS on appeal after a March Connecticut Supreme Court ruling denying Remington’s attempt to stop the suit.

On November 12, SCOTUS refused to hear Remington’s appeal, and so the suit from agents representing estates of nine Newtown, Connecticut residents, all families of 2012 shooting victims, can proceed.

Some observers were flabbergasted by the SCOTUS decision, and here’s why.

In 2005, the Republican-dominated Congress passed what was called the “Protection of Lawful Commerce In Arms Act” (PoLCIAA), which arose from the flurry of leftist-pushed liability lawsuits against gun manufacturers claiming that the gun-makers were liable for murders perpetrated with their products. Of course, that is absurd, akin to blaming cutlery makers for crimes perpetrated with knives. But there’s a larger point on the Constitutional side.

According to the Constitution, Congress can arrange the court system above the state supreme courts and below the U.S. Supreme Court. Hence, the U.S. has 94 federal district courts and 13 federal circuit courts. Congress can also write statutes regarding what can be heard in those federal courts, so with PoLCIAA, Congress blocked from those federal courts any across-state liability suit against firearms makers for crimes perpetrated with guns they manufactured.

Which is why, on November 12, many were surprised that the U.S. Supreme Court allowed a cross-state product liability suit against Remington (which is based in Alabama) to proceed.

But, in fact, this isn’t a “product” liability suit against the gun maker.

It’s a First Amendment issue.

Wait... This isn’t about the manufacture and operation of a firearm, because that would place it squarely under the preemption of the 2005 PoLCIAA? This is about speech?

Indeed. The so-called “grounds for suit” is the marketing of the AR-15 that police claim Adam Lanza used in his attack on Sandyhook students and employees. And the fact that it’s about marketing tells us it’s about speech, which, in turn, tells us that unless the seller defrauded someone in a sale or uttered something claimed to be libelous or slanderous, the First Amendment ought to shoot down this suit.

This is where we can see how commerce statutes on the state and federal level have eroded the First Amendment, and why the gun-grabbers are excited, as was amply displayed by PBS NewsHour’s William Brangham and his guest, state University of New York at Cortland Professor Robert Spitzer.

During a chat on November 12, Brangham asked Spitzer to explain how the plaintiffs are skirting the PoLCIAA, and he said:

Under Connecticut law, there is a provision that allows prosecution of companies if they engage in marketing and sales practices that pose a direct danger. And this is the claim that the families are going after now, that the marketing of these weapons was manifestly oriented around the idea of their destructive capabilities.

But this is a gun. It’s designed to fire bullets that will destroy the original physics of something. The promotion of the weapon as highly effective is not at all fraudulent or reckless. If anything, if gives potential buyers precisely the kind of information they might want. Now, if Remington Arms had said to potential buyers, “This gun shoots flowers and starlight," that would be more in line with fraud – but even then, buyers would have to purchase rounds, and they’d know that the rounds aren’t flowers and starlight.

But, even more important in this case, Adam Lanza didn’t buy the AR-15.

He stole it.

And that key fact was off the table for Spitzer, who tried to portray the AR-15 as only an offensive, destructive military weapon.

But as any sensible person knows, AR-15s have been used numerous times for self-defense and to save lives. In Florida, just two weeks ago, a pregnant woman used her AR-15 semi-auto to save her husband and his 11-year-old daughter from two armed robbers.

And as attorney and Youtuber Colion Noir notes, the argument that AR-15s rapidly fire destructive rounds and that this is somehow “reckless” to market could apply to handguns as well – which, he observes, likely is what gun-grabbers want to see as a result of this suit.

To sum the Remington situation as it stands:

A. The anti-rights attack on guns has taken a new twist in the court in order to bankrupt gun makers. Focusing on marketing runs contrary to the First Amendment and is a back-door attack on the Second.

B. Anti-gunners claim that the sale of this weapon was a case of “negligent entrustment”. But Lanza did not buy the AR-15, and even if he did, neither Remington nor any seller can be held liable for what a buyer does unless the buyer overtly tells them he plans on committing a crime.

C. The 1973 CT law the plaintiffs are attempting to use to claim Remington was “reckless” in its marketing/speech falls under Section 42-110b of state code – the “unfair trade practices” section.

And it’s essential that we close by understanding why that is so important.

The CT statute claims:

(c) The commissioner may, in accordance with chapter 54, establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of subsection (a) of this section. Such regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.

Collectivists have undermined the U.S. Constitution to such an extent, they say that the feds can create a “Federal Trade Commission” and “regulate” businesses, especially businesses the feds claim are monopolistic or employing “unfair trade practices.”

In my classes, I try to stress how monumentally important that point is to remember. James Madison himself noted that the “interstate commerce” clause of the Constitution was not to be used as a preemptive measure to regulate any product or service sold over state borders, but as a remedial measure to allow Congress to mediate trade disputes between States themselves.

Only businesses given state-granted monopoly status can engage in “unfair trade practices” and not worry about potential competition catering to dissatisfied consumers.

The term “unfair trade practices” was created precisely to engage in the kind of political attacks on businesses we see with this suit against Remington, and the only way it can be stopped is if we learn what the original rules of the Constitution were and that, in free markets, “unfairness” only occurs if people engage in fraud.

Any court allowing politicians to tell people what’s “fair trade” leaves the innocent populace at the mercy or arbitrary state authority.

Authority we’re seeing employed to the detriment of Remington, right now, because the SCOTUS is letting this case go forward.

This is authority that will be used to attack all our rights if we don’t push back.

(Cover Photo: PJM)