I joined the Lars Larson Show on Tuesday to talk about the Supreme Court’s ruling allowing a suit against Remington over the Sandy Hook massacre to proceed for now [earlier]. The current suit, as green-lighted by the Connecticut Supreme Court earlier this year over a dissent from three of its seven justices, claims that Remington violated the broad provisions on deceptive marketing of a state consumer protection law, the Connecticut Unfair Trade Practices Act (CUTPA). It should be emphasized that the case is still at an early stage and that the Justices will probably be presented with further opportunities to pronounce on its compatibility with the federal law that pre-empts most gun suits, the Protection of Lawful Commerce in Arms Act (PLCAA).
I’ve got a new post up at Cato at Liberty taking a more extended look at the ruling and what lies ahead for gunmaker litigation.
5 Comments
I think it’s high time we stop, as a society, offering Hosannas to the mystery of the courts-, reading tea leaves, considering larger questions of the Court’s prudential acts and how it maintains the Court’s legitimacy. It’s all hokum.
The denial of cert. is a disgraceful act of cowardice by the Court. Putting aside the ridiculous idea that CUTPA (as interpreted) isn’t pre-empted, there’s another question–the First Amendment. Businesses get to advertise as they see fit, so long as there isn’t anything misleading, false etc. The state, through tort law, doesn’t get to tell Remington that it cannot advertise its rifles, for lack of a better word, as “bad-ass.”
In any event, the Connecticut courts are trying to interfere with a national policy, and the Supreme Court has let them, I cannot help but think that politics entered into this decision–remember, Alito alluded to how the sausage is made in the Court in his dissent in the Citizenship Question case.
The other thing–the Court hung out to dry the three judges in dissent.
I’m confused on how the Connecticut law even applies. Does it ban some other sort of marketing besides deceptive, or define deceptive in a way beyond “misleading” or “inaccurate”? Because as I understand the thrust of the claim, it’s that Remington advertised its guns as great for killing people with – which means at Sandy Hook they performed as advertised, so there was no deception and should be no claim (even setting aside why a non-purchaser or non-competitor should have standing at all under a marketing law).
That is, of course, the point. It doesn’t apply.
They’ll find a way to make it apply. Because Guns!
Therein lies the problem. The whole idea of “law” is that the words on the page actually matter. There are gray areas, of course, and there are hard questions. But when the words on the page don’t matter, whatever happens is basically rule by decree. And if we allow courts to do what they want, then government officials will always say, “Well, it’s ok, until a court says no.”
A bunch of years ago–in Indianapolis, a guy named Larry Sanders killed a cop. The cop, just following orders, was illegally kicking down Sanders’ door, and Sanders shot him dead. He was prosecuted. The problem was that the law in Indiana said that an unlawful attack on one’s curtilage was able to be met with deadly force. The cop’s kicking down his door was illegal–thus, the statute engaged. And the statute didn’t have a police officer exception. Thus, under the law, Sanders was justified. So why was he prosecuted? The words on the page yielded to outcry.
Now depending on how one looks at it, Sanders was either a victim of government overreach or a cop-killer. I would argue that not following the words on the page leads to worse results than Sanders getting away with it (he didn’t, a plea deal split the baby).
I guess the moral of the story is that the words on the page are the best we have, but they aren’t perfect. I guess this is the corollary to Churchill’s comment about democracy.