I doubt Scalia has been gone long enough for this to work [Joe Palazzolo, WSJ, on case arguing, e.g., that sale to mother years before Sandy Hook shooting by her son was “negligent entrustment,” in teeth of PLCAA]
I doubt Scalia has been gone long enough for this to work [Joe Palazzolo, WSJ, on case arguing, e.g., that sale to mother years before Sandy Hook shooting by her son was “negligent entrustment,” in teeth of PLCAA]
17 Comments
The linked article is pay walled and even google search isn’t getting past the pay wall.
Two things spring to mind. First, I don’t think anyone supporting the lawsuit has ignored the clear text of the law,an exception to which reads: (B) Negligent entrustment
As used in subparagraph (A)(ii), the term “negligent entrustment” means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.
It is hard to believe today that a seller of an AR-15 machine gun to an individual not involved in the military is not aware of the risk to innocent people.
Second, to my reading, most of the reasonable interpretations of the 2nd Amendment support the idea that citizens were allowed to have arms as part of a well-regulated and necessary militia, and not to arm themselves, in unlimited ways, for nebulous reasons.
I think its an interesting debate, and I think more needs to be done to curb gun violence, and hold those involved responsible. This may be a messy start, but continuing the status quo is not an option for me.
It’s not a machine gun.
Andrew, I think you’re misinformed. The AR-15 is not a “machine gun” by any definition. It’s a semi-automatic rifle that is legal to sell under federal law (a few states ban certain features). In fact, it’s one of the most popular long guns sold in the United States. It is by no means a “military” weapon – although it may look scary. It’s no different than any other semi-automatic rifle on the market in terms of its ability to kill. Any argument otherwise is just puffery by the Plaintiffs’ attorneys.
As to your second point, if you accept that the prefatory clause has some meaning, it must be that citizens are allowed to keep and bear arms that have some reasonable relationship to the efficacy of a “well-regulated” (meaning “in proper working order” in the parlance of the Framers) militia. That means Joe Q. Citizen (as a member of the militia, which is made up of “the People,” of course) can carry a militiaman’s weapon – in modern times, that could very well be the full-auto machine gun that you imagine the AR-15 to be.
The PLCAA was meant to protect against precisely this kind of suit – an attack on a manufacturer that made a perfectly legal product and sold it in a perfectly legal way. Frankly, I think the Plaintiffs’ attorneys are doing their clients a disservice in this case – it’s certainly plausible that they will be sanctioned in the same way that the family in Colorado was.
The people behind the suit are so wrong on the facts that it’s astonishing. The AR-15, was designed before the M16 and while it was presented to the military, the military rejected it as unsuitable for military use.
The M16 is a redesign of the AR-15 to make it suitable for military use.
PS
The AR in AR-15 does not stand for Assault Rifle. The company that originally designed the AR-15 platform is Armalite and they even sell bolt action rifles with model names in the form AR-X.
Being aware that misuse of an AR-15 poses a risk to innocent people is not the same as knowing that “the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.”. That is a much higher standard.
Every court that considered a case where the firearm manufacturer was the defendant, ruled in favor of the defendant (i.e. held the defendant immune from suit).
The courts have declined to give immunity to individual gun shops that sell to a strawman, or sell firearms to someone not legally eligible to buy one.
Your reading of the Second Amendment has been explicitly rejected by the Supreme Court. In an abstract sense they can be wrong, but as far as US law is concerned, that pretty much settles it.
“an AR-15 machine gun”
First, it’s not a machinegun. It’s a non-automatic civilian rifle that happens to be the most popular centerfire target rifle in the United States, and one of the most common rifles U.S homes. As far as caliber, it’s a centerfire .22 and low-powered as rifles go, which is one of its selling points.
“the risk to innocent people”
Rifles, including AR-15’s, are the least likely of all civilian guns to be misused, accounting for fewer deaths annually than bicycles. See the FBI Uniform Crime Reports, Table 20, Murder by State and Type of Weapon. Out of 12,000 reported murders annually in the United States, all rifles combined account for less than 270 of them. That’s less than handguns, knives, clubs, shotguns, and even shoes and bare hands.
If the most popular rifle in America is also among the least misused of all weapons in America, is demonstrably less powerful than hunting rifles, and doesn’t fire any faster than an ordinary pistol or a typical .22, then it should be fairly easy to see that a suit that singles out that rifle as somehow more dangerous to the public than other civilian guns is ludicrous.
Tell it to ford/chrysler/GM/etc… Cars don’t kill people, people with cars kill people. You can say whatever you like about the intent of the founders, but the only way you would have gotten their guns would have been by prying it from their cold dead fingers. “Give me liberty or give me death” ring any bells? Do you think he was just blustering?
“Second, to my reading, most of the reasonable interpretations of the 2nd Amendment support the idea that citizens were allowed to have arms as part of a well-regulated and necessary militia, and not to arm themselves, in unlimited ways, for nebulous reasons.”
Andrew,
You are of course entitled to your opinion, but, if you look at the the time that the Second Amendment was written you could read it to mean that the people should have access to military grade weaponry. At that time there was no difference between a hunting rifle and a military rifle. Towns raised money to buy cannons for their Militia. The Town Square was not a small park or monument then, it was where the Militia drilled.
In my opinion the Second Amendment means that citizens should have access to and be proficient in the use of military grade weaponry. This would allow them to augment the military if necessary.
By the way, as it has been stated, the AR-15 is NOT a machine gun. It is a semi-automatic rifle.
There is also that part of the constitution that allows the Congress to authorize individual citizens to build their own private warships and go off and use them to take prizes on the high seas. At that time, warships were the highest form of military weaponry, so it is arguable that the framers DID envision that private citizenry could have their own private stock of very “heavy” military weapons.
Ok but there’s no constitutional right to do that. Congress could conceivably authorize someone to maintain their own private nuclear arsenal too. The fact that citizens could have such weapons with Congressional approval is not a sign that the Constitution gives everyone the right to have other weapons with no such approval.
The New York Daily News is covering the case heavily as part of its crusade for gun control:
http://www.nydailynews.com/opinion/harry-siegel-sandy-hook-gavel-gun-article-1.2538148
http://www.nydailynews.com/tags/newtown-shooting
The manufacturer should have somehow “known” that the buyer’s son was going to murder her, steal her firearm and commit further murders.
Some commenters say that the Second Amendment “allows” people to have arms. I disagree.
The plain language seems pretty clear to me. It does not presume, or create, some kind of dispensation from the government. Instead it states a clear, inherent right of people to own arms, and it prohibits the government from infringing upon that right.
The argument should be over as to whether the Second Amendment applies to individuals or to “a well regulated militia.” Heller v District of Columbia (in a 5-4 decision) says the right to keep and bear arms belongs to the people.
Subsequent cases are dishonest in their reasoning. In McDonald v Chicago, the issue before the Court was whether the right conferred by Heller was an “incorporated right” by the 14th Amendment, and hence applicable to the states or whether it was not. Almost all of the Bill of Rights had already been deemed incorporated by SCOTUS, so McDonald should have been a 9-0 decision. But it too was 5-4. Surprisingly, the dissenters had the “those blasted guns mentality,” instead of applying constitutional principles to see if the 14th Amendment incorporated the Second Amendment to the states.
But now, things really degrade. The lower courts are ignoring Supreme Court precedent established by McDonald and Heller: “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” And in McDonald, we recognized that the Second Amendment applies fully against the States as well as the Federal Government.
ARIE S. FRIEDMAN, ET AL. v. CITY OF HIGHLAND PARK, ILLINOIS, is one such case. The Court of Appeals for the Seventh Circuit upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes, including the AR-15. Furthermore, an application for certiorari to the US Supreme Court fell on deaf ears and was denied by the Court, except for 2 dissents, Thomas and Scalia.
There are more instances where Circuit courts have misapplied McDonald and Heller. For example the Second Circuit in New York State Rifle & Pistol Assoc. v. Cuomo, and Connecticut Citizens’ Defense League v. Malloy upheld New York and Connecticut’s ban on AR-15s among other semiautomatic firearms. I’m sure that the plaintiffs in these cases will also petition for certiorari. If the Supreme Court does not grant certiorari, then Heller and McDonald may only apply to Heller and McDonald, and not be general principles of law.