While families of the victims of the Sandy Hook Elementary School shooting look on, attorney Josh Koskoff speaks during a news conference in Trumbull, Conn. After agreeing to a $73 million lawsuit settlement with gun-maker Remington, the families of nine Sandy Hook Elementary School shooting victims say they are shifting their focus to ending firearms advertising. (AP Photo/Seth Wenig)

By Larry Keane

There’s a renewed effort by gun control to deny Second Amendment rights to gun owners. They’re going after the First Amendment.

Gun control groups squealed with excitement over the decision by insurers of the now-defunct Remington Outdoor Company (ROC) to settle the lawsuit brought by some of the families of the Sandy Hook tragedy. That settlement, which contained no admission of liability, paid out $73 million and released the marketing materials that were produced by ROC during discovery.

The only claim allowed to proceed to discovery was brought under Connecticut’s Unfair Trade Practices Act (CUPTA). In allowing the CUTPA claim to proceed, the Connecticut Supreme Court wrote in its Soto v. Bushmaster (4-3) opinion, “[T]he plaintiffs allege that the defendants’ wrongful advertising magnified the lethality of the Sandy Hook massacre by inspiring Lanza or causing him to select a more efficiently deadly weapon for his attack. Proving such a causal link at trial may prove to be a Herculean task.”

NSSF believes the Court incorrectly allowed this one claim to go forward to discovery. Nevertheless, plaintiffs never proved ROC’s marketing materials were ever seen by Nancy Lanza, who legally purchased her rifle, or by her son who murdered her and committed the atrocious crimes, let alone “inspired” either of them to select the rifle that was criminally misused in the tragedy. We remain confident ROC would have prevailed had this case proceeded to trial.

Legislation Through Litigation

Still, gun control groups see a path forward to attack the industry. If they can keep firearm manufacturers from talking about firearms, which are Constitutionally-protected, they believe they can diminish the firearm industry.

An advertising image for an AR-15-style rifle is displayed while attorney Josh Koskoff speaks during a news conference in Trumbull, Conn.  (AP Photo/Seth Wenig, File)

Dragging gun manufacturers into court over advertising appears to be the tactic they’ll use much in the same way “public nuisance” lawsuits became a tactic beginning in the late 1990’s before the bipartisan passage of the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005.

The goal now is the same as it was then. Gun control advocates want to make the firearm industry the “next tobacco” and sue manufacturers into oblivion. It’s another run at “legislation through litigation.” What gun control zealots cannot achieve because of the high hurdles in the Constitution and Bill of Rights, and the lack of public support for gun control legislation, they’re attempting to achieve in the courtroom.

It’s the same tactic that disgraced former New York Democratic Gov. Andrew Cuomo uttered when he was Housing and Urban Development Secretary in the Clinton administration and successfully pressured gun manufacturers to come to heel with the threat of public nuisance lawsuits. He threatened gun companies with “death by a thousand cuts.” It was the same goal of the failed municipal “public nuisance” lawsuits from 20 years ago brought by antigun mayors represented by the Brady Center and greedy trial lawyers.

That goal still has the gun control groups and trial lawyers salivating.

Target Advertising

“I knew that without a single document I could make the case that there was a connection between the marketing of the gun in the game, this kid and the shooting,” explained Josh Koskoff, the lawyer representing the plaintiffs in the case, to The New York Times.

Marketing materials will be made public in the coming weeks. The settlement has gun control politicians moving to create more barriers to firearm manufacturers. They’re homing in on advertising to punish firearm manufacturers for the criminal misdeeds of murderers.

Last year at a seminar held by Duke, Yale, and New York Universities’ schools of law on firearms litigation, the gun control groups’ lawyers and lawyers from large white shoe firms openly acknowledged that repeal of the PLCAA is not possible politically, so the path forward is to essentially weaponize the holding in Soto and bring claims based on advertising and marketing.

California’s Democratic Gov. Gavin Newsom announced a new gun control package he wants to sign into law. In addition to legislation that would allow individuals and the state attorney general to sue manufacturers for the criminal actions of remote third parties, he’s also eyeing a bill, AB 2571, which would prohibit firearm manufacturers from supposedly advertising firearms to children.

Children, though, can’t purchase firearms. Only adults over the age of 18 can purchase rifles and shotguns and only adults over 21 can purchase handguns. The legislation takes a wide-ranging approach that threatens any youth-model firearm from being advertised. Period.

The New York public nuisance law being challenged by NSSF and industry members would allow lawsuits against members of the industry based on marketing and advertising.

Some judges aren’t enforcing the PLCAA. For example, San Diego Superior Court Judge Kenneth Medel denied Smith & Wesson’s motion to dismiss in a case arising from the murders at San Diego’s Chabad of Poway Synagogue in Poway, Calif., in April 2019. Smith & Wesson argued that the PLCAA required the case be dismissed.

The Brady Center, representing the plaintiffs in the case, claimed the semiautomatic rifle labeled an “M&P-15” could be readily converted to an automatic firearm (an utterly false premise) and “M&P,” which stands for Military and Police, were marketing tactics “that attracted impulsive young men with military complexes who were particularly likely to be attracted to the unique ability of AR-15 style weapons.”

Echoing the themes advanced in Soto v. Bushmaster, Brady even attached to the complaint the ads they found objectionable. Instead of considering the ads as a matter of law as he should have, Judge Medal accepted at face value Brady’s claim that the company violated California’s Unfair Competition Law, which prohibits deceptive marketing, and allowed the case to go forward.

Constitutionally Protected Commercial Speech Attacked

In the Smith & Wesson case, Professor Eugene Volokh, a renowned Constitutional law scholar at University of California – Los Angeles School of Law, authored an amicus brief on behalf of several leading First Amendment scholars. He argued that the firearm manufacturer’s advertisements were commercial speech fully protected by the First Amendment.

“They convey the message that the company’s firearms are of high-quality, enjoyable for target shooting, effective for lawful self-defense, and, as to some of its firearms, inexpensive to use. The advertisements accurately note that the depicted firearms are generally similar to weapons lawfully and honorably used by our nation’s law enforcement officers.”

Smith & Wesson M&P 15 Sport rifle

Professor Volokh added that the advertising cannot be categorized as “incitement” to illegal criminal activity, nor can it be construed as negligent or misleading.

“Smith & Wesson’s advertisements express the view that gun ownership, and ownership of the M&P 15 rifles in particular, is proper and can even be righteous and noble, if one uses them in the disciplined way that most police use them. Plaintiffs presumably disagree with that view – but the First Amendment precludes liability for expressing it.”

This is the new playbook. Gun control orgs will do the same thing that was done with “public nuisance” lawsuits in the late 1990s and early 2000s, only with advertising. The claims will be any advertising is dangerous, no matter how truthful the ad, no matter how lawful the activity and no matter the fact that firearm manufacturers market their products to those who can pass the FBI’s National Instant Criminal Background Check System (NICS).

Gun control will try to nullify speech surrounding guns so they can nullify the right to own one.

Truthful commercial speech that does not incite violence or encourage unlawful behavior is protected fully by the First Amendment, especially when that speech concerns Second Amendment activity, even if antigun zealots dislike the viewpoint expressed by members of the firearm industry.

 

Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.

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57 COMMENTS

    • “A Republic, if you can keep it”. Benjamin Franklin. Not since the Civil War, has that statement been more relevant.

      • Dark, one of my favorite quotes. I once stood where it was said. And, you sir, are correct. It has never been more relevant in modern history.

        • I Fear there is not enough resolve left amongst the citizenry to accomplish that task. Especially once the Boomer generation has past. It may well be the last chance to save the Republic. Because as old men. We have the least to loose and the world We leave behind is the one Our children and grandchildren will be subjected to.
          In Liberty and as always Keep Your Powder Dry.

    • Sorry Larry…That was a bunch of 1 & 2 Amendment yada, yada, yada and not one word said about holding those behind “Gun Free Zones Signs” liable for giving gullible parents a false sense of security and holding the door open for adam lanza.

      Make no mistake about it…Those signs tell criminals that the people in the vicinity are unarmed easy pickings. Never mind the firearm being the usual center of attention, criminals could use anything from an ice pick to a motor vehicle to reek the same if not worse havoc all because those “Signs” clears the path for them.

      Frankly…Some people in the Gun World are their own worst enemies. They sit there like buffoons and allow Gun Control zealots to put the gun on the hot seat and make it the center of attention when there are “Signs” all over the place pointing elsewhere.

      • His point wasn’t “What we should do” it was “What they are gonna do.” Helps to know the enemy battle plan.

  2. MORE PEOPLE KILLED ON HIGHWAYS THAN BY PISTOLS OR RIFLES .
    NOW SUE ALL CAR MAKERS AND PEOPLE THAT DRIVE VEHICLES.

  3. Just use drag queens in all the ads. They’ll be invincible to the antis and the people actually buying the gun likely won’t give a shit or even notice. I haven’t seen an actual non-review, non-“influencer” ad myself in over a decade thanks to browser ad blockers, no TV and no magazines in my life.

    • That some funny shite right there. I’m afraid it wouldn’t work out well. Remember that Antifa turned on Andy Ngo and beat him half to death. If we’re going to use gays in the gun industry, they better be black, not Asian or Euro.

  4. “Attorney Josh Koskoff” – how much of this BS insurance co settlement did this NOS shyster scam for himself? 50%?

  5. The first amendment needs to be revisited. The constitution itself needs to be revisited. It’s not 1776 anymore. We need to curtail gun violence and hate speech. Part of that means canceling psycho right-wingers, and part of it means passing laws that can be interpreted to mean what right wingers are shooting and saying is against the law, so that A) we can take their guns away, and B) we can subdue their speech through various legal punishments and social norms.

      • Are you the real or fake miner? How can you tell the fake dacian from the real dacian?

        Is there even a fake dacian?

        • They are easy to tell apart, the syntax and language is completely different.

          And I am the real deal, accept no substitutes!

        • Unless of course you don’t want to be lied to, manipulated, and propagandized.

          Then I highly suggest you find a substitute.

      • If it’s juvenile how can you tell it’s fake or real? The real herr dacian the nazi is dumb as a box of rocks. No education to speak of and he argues like a 13yo.

        Fake or real? What if they’re both the same?

    • The first amendment needs to be revisited. No inane idiot should be allowed to usurp the likeness of another inane idiot from an inane publication intended to remove the last functioning neurons bouncing around inside of the reader’s crainia.

    • How about psycho left-wingers?
      A. we already have restrictions on felons and violent mentally unbalanced people from having
      or obtaining firearms.
      B. We already have laws against “hate speech” and egging on rioters.

      • “How about psycho left-wingers?”

        Redundant, like “Crazy woman”… 🙂

        • Well, now that we’ve heard from Geoff for the 50th time just today, can we now get the perspective of someone who’s actually had a job in the last two decades, and isn’t a complete drain on society? In other words not you, Lamp 🖕🤡.

    • Dacian, why don’t you and Beatoff O’Cork team up, and come take my guns?

    • dacian, the Dunderhead, Why don’t you leave the US and go to Europe, Cuba, Venezuela, or some other socialist state that would be more to your liking.

      The 1st Amendment is to guarantee the right of everyone to have their say. There is no need to change the 1st nor the 2nd, nor any other part of the Constitution save one. The 17th Amendment. Originally the state legislatures selected the Senators to provide balance to the House which is elected by the people. The States would then have a voice and would be the moderating force in Congress against radical changes. The Senate is supposed to be a deliberative body to make laws after careful intelligent thought. The 17th Amendment changed that and has made the Senate less deliberative and more reactive to chage often for only changes sake.

      IBM has an adage above the doors of each of its factories and offices. Just one word, “THINK”. Today our politicians rather than thinking about the consequences of their actions and votes just react and create more problems than the ones they were supposed to “solve”.

  6. “I could make the case that there was a connection between the marketing of the gun in the game, this kid and the shooting,” explained Josh Koskoff, the lawyer representing the plaintiffs in the case, to The New York Times.

    Marketing materials will be made public in the coming weeks.“

    So why don’t we wait until the evidence becomes publicly available and we can judge for ourselves.

    • It’s not like they are attacking the 2nd Amendment because they ultimately want to ban guns.

      These lawyers and gun control groups only want what is best for everyone in a Biden America.

      They are altruistic to the core, only thinking about others and never their own selfish motives, always improving on the common good.

    • Had the individual been the one who purchased the rifle, then they could make a better case. However his Mother bought it, he killed her and took the rifle.

      The prosecution had to make a large leap for the jury to be convinced the commercial or video game lead to him purchasing the rifle, which we all know he did not.

    • Minor MINER49er In order for the plaintiffs to make their case, they would have to PROVE that the mother who bought the gun, was influenced by the ads from Remington. The chances of that are at best slim and none. The marketing materials are IMMATERIAL! This case should never have been settled and the judge who was presiding should have dismissed it outright based on the unlikely chance that the plaintiff could prove that the mother who purchased the gun was so influenced.

    • To clarify on the above, I’ve only got the one singular example of kids turning on their dad. But I’m going to use this as an argument, and put on a serious face, to improve the credibility of such a weak argument. In all honesty and reality, it’s probably more likely, there were major family issues and the kids didn’t like their father, in this particular case, and this in no way indicates that there is a widespread phenomenon of kids turning on their parents, thus somehow, illogically, indicating that has any correlation with a right wing revolution, which it does not. And this is directly a result of bad parenting. You don’t let your kids do things that make you dislike them. And this dad waited too long.

  8. Is it any wonder that lawyers are looked upon with such distrust and distain? I think I remember reading somewhere that the US has more lawyers per capital than anywhere else in the world.
    I submit that we really need more lawyer control as opposed to gun control.

    • What’s the difference between a disaster and a tragedy?

      A disaster is when a bus load of lawyers drives off a cliff. A tragedy is there was a vacant seat on the bus.

    • The saddest thing about your post is that you likely meant ‘per capita’ but ‘per capital ‘ is equally true.

  10. “May 31, 2019
    Effect of Exposure to Gun Violence in Video Games on Children’s Dangerous Behavior With Real Guns
    A Randomized Clinical Trial
    Justin H. Chang, MA1; Brad J. Bushman, PhD1,2
    Author Affiliations Article Information
    JAMA Netw Open. 2019;2(5):e194319. doi:10.1001/jamanetworkopen.2019.4319
    editorial comment icon Editorial
    Comment
    related articles icon Related
    Articles
    Key Points
    Question Does exposure to violent video games cause children to engage in dangerous behavior around real firearms?

    Findings In this randomized clinical trial, 220 children aged 8 to 12 years were assigned to play a video game in 1 of 3 conditions: with gun violence, with sword violence, or with no violence. Compared with children who played a game that was nonviolent, children who played a video game that included violence with guns or swords were more likely to touch a real, disabled handgun, handle a handgun longer, and pull the trigger more times, including at themselves or their partner. Reported habitual exposure to violent media was also a risk factor for dangerous behavior around firearms.

    Meaning Exposure to violent video games increases children’s dangerous behavior around real firearms.“

    https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2734799

    • minor49iq…Never mind shoot’em up videos. Are you trying to say that if I expose a snot nosed gamer to helping me cut up a chicken to fry I’ll be promoting dangerous behavior around firearms? Or will that little person simply ignore the blood and guts see what it takes to make a home cooked meal and can’t wait to come back?

      Speaking of frying chicken…
      https://youtu.be/gPGuUHNT7U4A

    • Sounds like you’re about to side with the hellfire and brimstone preachers that keep saying games and movies and music are bad for folks.

    • Depends if the children have been taught proper gun safety. My son was taught proper safety a decade ago and it was periodically refreshed. Since he has started shooting he further understands the safety rules.

      And he is an avid FPS gamer. One of few in general who play FPS games and shoot, but rarer again for his age group. He often laughs at what is considered “long range” in games.

    • Considering that academia is currently advocating the normalization of a mental disorder and their predilection towards predetermined studies I have little faith in any of their findings.

  11. From the article:

    “There’s a renewed effort by gun control to deny Second Amendment rights to gun owners. They’re going after the First Amendment.”

    A slightly better rendition would be:

    “There’s a renewed effort by gun control to deny Second Amendment rights to gun owners. They’re going after the First Amendment punish and silence or outright eliminate their political enemies by any and all means necessary.

  12. Wow…quite interesting. I’m Karen Miller, Jack Miller’s great granddaughter. If you’re familiar with his murder in 1939, days before his case, US v. Miller went to the US Supreme Court, then you’ll appreciate when the truth I’m writing in a few days comes out….

    How sad so much was hidden and Jack’s 1st and 2nd amendment rights were throw in the garbage…

    I found the truth in documents, personal letters and newspaper clippings from 1938 through the trial.

    So sad…and there’s a drive in me to get the truth out. I’ve been working with the incredible Prof Brian L. Fry who wrote about Jack in “The Peculiar Story of US v Miller”…for several years . It’s time the truth is revealed…

    • Your great grandfather Jack Miller was murdered?

      Why was the story always “he never showed up” leaving out his demise?

      Also found this from the Professor you mentioned.

      “Part II recounts the history of the case. It shows Jack Miller was a career criminal and government informant. It finds Miller was a Second Amendment test case arranged by the government and designed to support the constitutionality of federal gun control.”

      The Peculiar Story of United States v. Miller https://uknowledge.uky.edu/law_facpub/265/

      However, that paper is several years old, are there any new updates?

      • Hi, yes…he was murdered. Thank you for your comment. Why nothing much was mentioned is the question…

      • Veritas,
        My apologies for not seeing the end of your post. Brian Frye and I are co-authoring a followup paper as I write this. He was blown away by my call to him several years ago, telling him the truth about what happened. Your read more in a few days from me, and the followup will be released in a few weeks possibly.

        Again, thank you…
        Karen

  13. Uncommon Sense…

    Thank you. What you just wrote, along with other comments mean a great deal to me as well as my family. My Grandmother, Jack’s oldest child was 18 at the time this all occurred and she was an eye witness to many events surrounding this case.

    Again, thank you.

    Karen

  14. Me: If I intentionally hit someone with my car, can they sue Ford?
    Them: Of course Ford has legal protections, they aren’t responsible for how you use your car.

    Me: If I intentionally shoot someone with my gun, can they sue Remington?
    Them: Gun companies are the only companies legally protected from lawsuit and it’s wrong

    • Meanwhile, in America:

      “PHOENIX (AP) — The family of a little girl who was killed when her mother’s car was rear-ended by a Jeep on a Phoenix freeway can sue the SUV’s manufacturer for wrongful death because it did not install automatic emergency braking devices that were available as optional equipment, the Arizona Supreme Court ruled Tuesday.

      The court rejected arguments from lawyers for Jeep parent company Fiat Chrysler Automobiles US that the National Highway Transportation Safety Administration’s decision not to require the devices pre-empted the state lawsuit.

      The decision written by Justice Bill Montgomery also overturned a similar 2019 decision that said automakers were immune to such lawsuits because of the federal agency’s decision not to require the technology.”

      We’re a litigious society.

    • If Seth Myers is your go-to for insightful political analysis, I can only conclude that you have been intubated for being too stupid to breathe independently.

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