Scholarship Highlight: New Works on Firearms Law

  • Date:
  • August 18, 2021

As we gear up for the Supreme Court's hearing of New York State Rifle & Pistol Association v. Bruen in November, other firearms law and Second Amendment issues continue to be litigated in lower courts and debated in the literature. Here are new pieces that take on the issue of public carry (just recently posted to SSRN) and the tort shield governing claims against the firearms industry (just recently published).

From the Article (citations, quotations, and alterations omitted):

Since its enactment, the PLCAA has largely removed the gun industry from the salutary effects of the civil justice system, effectively rendering manufacturers of the most inherently dangerous products on the market immune from lawsuits arising out of the negligent misuse of their products. . . . The law contains six express exceptions to this prohibition, one of which permits “action[s] in which a manufacturer or seller of a qualified product 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 for which relief is sought.” This exception, known as the sales and marketing predicate exception to the PLCAA, served as the basis for the 2019 lawsuit in Soto v. Bushmaster Firearms International. . . .

The United States is facing a gun epidemic. Nearly 40,000 people in the United States died from gun-related injuries in 2017. On August 3, 2019, Patrick Crusius entered a Walmart in El Paso, Texas and began shooting. Early the next morning, Connor Betts opened fire in an entertainment district in Dayton, Ohio. Combined, the rampages left thirty-one people dead in a span of twenty-four hours. And the cost of gun violence goes beyond the lives lost. In 1994, the medical cost of treating gunshot injuries reached $2.3 billion. By 2019, gun violence was estimated to cost the U.S. $229 billion every year. Immunity legislation, like the PLCAA, forces taxpayers and victims of gun violence to absorb this cost instead of manufacturers and dealers who place inherently dangerous weapons into the stream of commerce. The Act constituted a rejection of 160 years of products liability and flies in the face of concerns over continuing widespread gun violence. Corporations who lobbied for the Act through organizations like the NRA have adopted calculated and profit-driven strategies to expand the market of their weapons and court “high-risk users” through targeted media campaigns and promotional tactics. And while the PLCAA has remained a seemingly impenetrable barrier to lawsuits based in deeply rooted products liability doctrines, Soto may be representative of a growing fracture in the legislation’s armor. By adopting the approach taken by the majority in Soto, state courts may be able to hold gun manufacturers responsible for the harms caused by their products if it can be shown that the manufacturer’s illegal marketing strategies were causally related to the injury. In so doing, Americans may once again have the ability to decide for themselves whether the benefit of the country’s gun industry, as it now stands, is worth its ever-rising cost.

From the Abstract:

Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc), purports to find that the right to bear arms is outside the historical scope of the Second Amendment, which protects that very right to bear arms. The actual text of the Second Amendment is AWOL in the Ninth Circuit’s holding that Hawaii may ban the carrying of firearms, whether openly or concealed. The court’s lengthy account of the history of prohibition on bearing arms is a faux histoire.

Young begins by tracing Hawaii’s ban on carrying a pistol to 1852, when Hawaii was a monarchy. Hawaii’s Constitution recognized no right to bear arms, and instead the law declared that only persons in government were “authorized to bear arms.” When the monarchy was overthrown and a republic created, a law was enacted allowing anyone to carry a pistol by paying a license fee. The court simply ignores that period and highlights restrictions imposed after annexation by the United States. And it disregards how the “good cause” exemption, which allowed carrying without a license, was enforced.

Next Young finds precedent for the carry ban in the decrees of medieval English kings, who prohibited subjects from “going armed.” However, the context concerned knights in armor fighting and creating turmoil, not lowly peasants carrying a bow or dagger for self-defense. At any rate, our Founders would have held in disdain the idea that they needed “the king’s license” to bear arms. The court also misrepresents various English statutes, such as the prohibition on going armed to rob, murder, and kidnap, terms that the court snips out to claim that the law simply banned the carrying of concealed weapons.

The Statute of Northampton of 1328, with its convoluted language on coming armed before the King’s Justices or going or riding armed, is held up by Young as the holy grail to justify carry bans. But the court butchers the definitive holding in Rex v. Sir John Knight (1686), reflected in treaties thereafter, that the Statute only applied if a person went armed with evil intent in a manner to terrorize the subjects. And it underrates the scope of the Declaration of Rights of 1689, protecting the right of Protestants to “have Arms for their Defence.”

Young’s “history” goes further downhill when it crosses the Atlantic. Carry bans in the American colonies were somehow seen as normal because the backwater East New Jersey had a temporary carry restriction and the other colonies required settlers to carry arms to church and other public places. The court skips over the history of the British attempts to disarm the Americans, the demands that the proposed Constitution have a bill of rights, and public discussion leading to the ratification of the Second Amendment.

Instead, the court jumps to antebellum laws that prohibited going armed offensively to the terror of the people, which were irrelevant to the peaceable carrying of arms. It muddies the waters about nineteenth-century judicial decisions, which generally upheld the right to bear arms except for an outlier Texas case from 1871. The antebellum slave codes and judicial decisions upholding them, based on the premise that slaves and even free persons of color had no right to bear arms because they were not citizens, warrants no notice in Young. And it is silent on the purpose of the Fourteenth Amendment to overturn black code provisions requiring African Americans to obtain a carry license that could be issued or denied in the discretion of the government.

The Ninth Circuit in Young paints a faux histoire of the right to bear arms. It relies on medieval decrees that would have been anathema to the Founders, deletes key passage from historical sources, leaps over crucial stages of American history such as the coming of the Revolution and of Reconstruction, and otherwise distorts the past to demonstrate that the right to bear arms is actually beyond the historical scope of the right to bear arms.