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Firearms Litigation: Liability, Regulation, and the Constitution

On Tuesday, December 1, there is free four-hour continuing legal education program on “Firearms Litigation: Liability, Regulation, and the Constitution.” The program is co-sponsored by the Center on Civil Justice at NYU School of Law, the Duke Center for Firearms Law, and the Solomon Center for Health Law and Policy at Yale Law School. It will run from 1 to 5 p.m., Eastern Time. Free registration is available here. The event will be transmitted via Zoom.

Panel 1 is “Liability Litigation: Products, Preemption, and the PLCAA.” The Protection of Lawful Commerce in Arms Act (PLCAA) is a 2005 federal statute that bans many tort lawsuits against firearms manufacturers and retailers. The PLCAA does not restrict lawsuits about firearms that are actually defective–for example, a handgun that fires when it is accidentally dropped.

As my 2016 post describes, the federal statute, like 34 prior state statutes, resulted from numerous lawsuits organized by gun control groups and certain government officials (including Andrew Cuomo). The coordinated suits aimed to present the firearms business with a stark choice: 1. Cede control of the industry to a supervisory committee run by anti-gun advocates; 2. Be bankrupted by litigation costs from many simultaneous cases in different courts.

The PLCAA regulations on lawsuits include what is called the “predicate exception.” A business can be sued if it “knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm.”

Panel 1 will mainly examine the “predicate exception.” The discussion is timely. In 2019, the U.S. Supreme Court denied cert. for a 4-3 Connecticut Supreme Court decision in Remington v. Soto. The Connecticut majority held that Connecticut’s general statute against Unfair Trade Practices had been violated because Remington’s advertising was too militaristic in tone. Further, the statute against bad advertising in general qualified for the predicate exception. This post describes the amicus brieff I filed in support of the cert. petition; the brief addresses First Amendment doctrine and history, and was on behalf of, inter alia, VC writers Eugene Volokh and Randy Barnett.

Panel 1 will be moderated by Abbe Gluck (Yale). The panelists are Mark Lanier (Lanier Law Firm), Alla Lefkowitz (Everytown), Timothy Lytton (Georgia State), and William Tong (Connecticut Attorney General). None of them would exactly be called a PLCAA supporter.

Panel 2 is Constitutional Litigation. This panel will be wide-ranging. The moderator is Adam Skaggs (Giffords). In addition to me, panelists will be:

Joseph Blocher (Duke). His remarks may include his recent article Why Regulate Guns? The article suggests that in the gun control debate, non-owners’ “fundamental freedoms—to travel, to speak, to learn, to pray, and to vote without fear or intimidation—are at stake.”

Bob Cottrol (George Washington). He will discuss the similarities of Second Amendment litigation today with litigation on the Fourteenth and Fifteenth Amendments in the early twentieth century. Cottrol is co-author of The Second Amendment: Toward an Afro-Americanist Reconsideration, cited by Justice Thomas in his concurrences in Printz v. United States and McDonald v. City of Chicago.

Mary Anne Franks (Miami). She will discuss constitutional firearms litigation as a manifestation of fragility. Franks is author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.

Deepak Gupta (Gupta Wessler). The well-known appellate advocate, who often represents Everytown, will discuss some of his recent litigation.

David Kopel (U. of Denver, Independence Inst., Cato Inst.). I too will talk about some of my cases. Additionally, I will present some history Second Amendment litigation, as described in my article Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer.

Panel 3: The Future of Litigation Strategies

Moderated by Darrell Miller (Duke), this panel examines litigation strategy and practice, as well as statutory reforms affecting litigation–perhaps including the long-running effort to get rid of PLCAA or eviscerate it.

Panelists are Hannah Shearer (Giffords, Litigation Director), Christopher Boehning (Paul Weiss, brief writer in some recent leading cases), Evan Chesler (Chairman of Cravath), Troy McKenzie (NYU), and Erin Murphy (Kirkland & Ellis, Second Amendment litigator since 2015, often representing the NRA).


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About The Author

David Kopel

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit https://reason.com

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