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Smells Like Infringement

Gun-Grabbers Never Learn! Case Study: Michigan



Depicted: sow, mire (Image courtesy NSSF)

That the Dog returns to his Vomit and the Sow returns to her Mire, And the burnt Fool’s bandaged finger goes wabbling back to the Fire…

Even if you’re not a fan of poetry, someone who watches American politics would be well-advised to read Rudyard Kipling’s The Gods of the Copybook Headings. It may have been written a century ago, but it’s a remarkably accurate blueprint for what’s happening right now, today, because the central theme of the poem is as follows: Deny the realities of life at risk of your own. It’s also about the fact that some people simply refuse to learn from history and their own mistakes. It may not have been written about the modern anti-gun movement, but it may as well have been.

Which dog is returning to its Vomit today? Well, that would be the Michigan state legislature, which is busily crafting laws to allow crime victims to sue gun manufacturers. Yes, that’s exactly like suing Ben & Jerry’s for making you fat. Yes, it has been tried before and every single lawsuit was thrown out. Yes, it’s actually illegal according to federal law. No, they won’t listen. Because, you see, as Kipling’s next line states:

And that after this is accomplished, and the brave new world begins …

Funny how those brave new worlds always wind up looking just like the mean old world, only with less food and more crime, isn’t it? Today, our friends at the National Shooting Sports Foundation have the scoop.


By Larry Keane

Michigan lawmakers – including Gov. Gretchen Whitmer – are toying with the idea of turning state courtrooms into political arenas for gun control instead of forcing criminals to stand before judges for their crimes.

State legislators are considering introducing a bill that would allow victim families to sue firearm manufacturers, distributors and retailers for the heinous crimes committed by criminals. Let’s say that again so it is clear. Michigan’s legislators want to allow lawsuits against the firearm industry for crimes they didn’t commit. There’s no talk about dragging murderers, thugs, gang members and other criminals into courts to face a judge to answer for their crimes. Instead, Gov. Whitmer and these state legislators are looking to score cheap political points to allow public nuisance lawsuits against firearm manufacturers and those mom-and-pop gun stores that are following federal and state laws.

This is a dangerous step that only seeks to eliminate the ability of law-abiding Michiganders to legally obtain a firearm. This notion doesn’t address crime. The intent is to run local gun stores out of business and out of Michigan. When those who obey the law can’t legally obtain a firearm, they’re being denied their Constitutional Second Amendment rights.

Facts First
Firearm retailers only sell firearms after a gun buyer fills out an ATF Form 4473 that attests they are the true recipient of the firearm, not a convicted felon or fugitive from justice, not have been convicted of domestic violence and aren’t subject to an arrest warrant. After that, the firearm retailer verifies with the FBI’s National Instant Criminal Background Check System (NICS) that the buyer is not prohibited from possessing a firearm. If the FBI verifies, then the sale or transfer of a firearm can proceed.

This isn’t how criminals obtain firearms. The Department of Justice’s (DOJ) Bureau of Justice Statistics (BJS) studies show that 90 percent of felons convicted of committing a crime with a firearm admit to obtaining their firearm illegally – mostly through an illegal black market sale or by theft. These criminals aren’t passing background checks so they can prey upon the innocent in Michigan. They are committing crimes to do that.

Gov. Whitmer and Michigan legislators pushing for lawsuits against the firearm industry won’t bother with those facts.

Tried and Failed
This notion of public nuisance lawsuits against the firearm industry isn’t new. This was a tried-and-failed tactic of the late 1990s and early 2000s. Municipalities sued firearm businesses for the crimes committed by remote third parties– commonly referred to as criminals – and those cases were thrown out of court. They never passed a basic understanding of tort law – that those who commit the crime and inflict harm are the ones responsible for that harm.

That wasn’t the point of the lawsuits, though, just as it is not now. The true intent of the lawsuits was revealed by disgraced former New York Gov. Andrew Cuomo, who said when he was the Housing and Urban Development Secretary in the Clinton Administration, that these lawsuits were designed to impose on the firearm industry a “death by a thousand cuts.”

Professor Victor Schwartz, a former law professor and law school dean and the current co-chairman of the Public Policy Group of the law firm Shook, Hardy & Bacon, wrote in The Washington Examiner, “Former Clinton administration Labor Secretary Robert Reich aptly labeled this strategy ‘regulation through litigation.’ He recognized that it amounts to ‘faux legislation, which sacrifices democracy’ by using the judiciary to implement policy preferences in place of the representative branches of government. Under such a litigation strategy, any lawful yet ‘unpopular’ industry may be targeted and sued out of existence based on the conduct of criminals or other third parties who misuse products.”

Before Gov. Cuomo was forced to resign from office in disgrace, he signed a similar law for New York. New Jersey’s Gov. Phil Murphy also signed a similar law. NSSF is challenging both laws because they don’t stand up to the federal law that prohibits these frivolous lawsuits – the Protection of Lawful Commerce in Arms Act (PLCAA). That’s the law that was passed with a wide bipartisan majority in both the U.S. House of Representatives and U.S. Senate and signed into law by President George W. Bush in 2005. That law has been repeatedly upheld as Constitutional by Courts of Appeal and even defended by President Joe Biden’s Attorney General Merrick Garland and the DOJ.

What’s At Stake
The claim that gun businesses are immune is a lie. That’s been fact-checked time and again. PLCAA prevents frivolous lawsuits against firearm businesses over the criminal actions committed by remote third parties. Firearm businesses can still be held accountable if they commit a crime, there is negligent entrustment or product design flaws. PLCAA simply means those businesses that lawfully-made and lawfully-sold a firearm cannot be held responsible for the crimes committed by others. It would be the same as if someone attempted to sue Ford and Anheuser Busch for the harm caused by drunk driving.

The reason PLCAA was signed into law was because Congress knew antigun politicians were using the courts as an end-round to circumvent the lawmaking process. The irony was elected officials then – and now – oppose PLCAA because it blocked their “attempt to circumvent the Legislative branch of government” and “would expand civil liability in a manner never contemplated by the framers of the Constitution.” Those are actual words within the law.

Gov. Whitmer and antigun politicians in Michigan would rather use the courts to push their radical gun control agenda instead of using them to lock up criminals. They’re carrying the water for special interest groups, including trial lawyers that see this opportunity as a cash cow. That’s not justice for anyone. That’s abuse of the courts and denigration of Second Amendment rights.

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