Last Thursday, the Third Circuit partially vindicated Smith & Wesson in its ongoing battle with the New Jersey Attorney General. In Smith & Wesson v. Attorney General of New Jersey, the panel reversed the district court’s dismissal of Smith & Wesson’s lawsuit against the NJAG, which arises out of the AG’s administrative subpoena for business records as part of the AG’s investigation into potential violations of the New Jersey Consumer Fraud Act. “Instead of producing the documents when due under the subpoena, Smith & Wesson filed a complaint in the District of New Jersey under 42 U.S.C. § 1983, alleging the subpoena violated the First, Second, Fourth, Fifth, and Fourteenth Amendments.” Notably, that complaint made statements asserting an unconstitutional animus against it, a claim similar to the types I explore (with a brief reference to this case) in a recent article, Second Amendment Animus.
In the district court, Smith & Wesson lost. The court dismissed the case because it concluded that abstention was proper under Younger v. Harris, which counsels federal courts to abstain from adjudicating certain claims when a pending state court proceeding is already underway. The Third Circuit panel concluded that the state court proceeding did not fall into any of the categories of cases in which abstention is appropriate. It therefore sent the case back for the district court to consider Smith & Wesson’s constitutional claims.
Much of the opinion is about technical federal courts doctrine. But Judge Matey’s concurring opinion is noteworthy for its focus on the substantive claims at issue in the case. His opinion also seems to hint at the impropriety of applying a broad consumer protection statute to firearms marketing (which readers may recall is the argument that prevailed in removing the Sandy Hook lawsuit against Remington from the immunity bar in the Protection of Lawful Commerce in Arms Act). Even more, Judge Matey quoted from part of the record, suggested that the AG may have been misleading, and then stated: “[t]hat less-than-forthcoming approach to litigation suggests that careful review of New Jersey’s entire investigation is warranted.”
Here’s his concurrence (citations and footnotes omitted):
I write separately to note that those facts present novel questions at the crossroads between the guarantees in the First and Second Amendments. For more than sixty years, New Jersey’s Attorney General enjoyed the powers of the Consumer Fraud Act to protect the public from misleading advertising. New Jersey has also regulated firearms for more than three centuries. Those regulations have, for decades, included firearms-specific advertisement restrictions.
Now, for the first time, the State seeks to apply the Consumer Fraud Act to supplement these specific restrictions, waving aside concerns about the protections of the First and Second Amendment rights of New Jersey residents in, as always, the name of “safety.” It is a well-traveled road in the Garden State, where long-dormant regulatory powers suddenly spring forth to address circumstances that have not changed. Consider where this new highway will take us. Future firearms instructors, fearing the arrival of subpoenas, might decide it is not worth advertising their services for “safety” training. Maybe range operators, sporting clubs, or hunting lodges, recalling some dusty pamphlet mentioning their attention to “safety” will weigh waiting for investigators against early retirement. And almost certainly, every shop-owner stocking firearms for “self-defense” or personal “safety” can begin planning for periodic advertising inspections from the Attorney General. Perhaps publishers will be punished too, with outdoor magazines thinking twice before speaking about the content of a product. One might suspect that is the whole point.
Pointed questions that are all appropriately considered by the District Court on remand. New Jersey is free to experiment with the enforcement of its laws. But the liberties reserved to the states by the Tenth Amendment do not negate the privileges reserved to the people, including “the widely accepted principle at the Founding that the right to self-defense derived directly from the natural right to life, giving the people predictable protections for securing the ‘Blessings of Liberty.’ ” See Ass’n of New Jersey Rifle & Pistol Clubs Inc., 974 F.3d at 258 (Matey, J., dissenting) (citing U.S. Const. pmbl.; see also Declaration of Independence para. 2 (U.S. 1776)).