Amicus brief on lawsuits against gun manufacturers invokes NY Times v. Sullivan

Courts should stop abusive lawsuits against the First and Second Amendments

|The Volokh Conspiracy |

Should gun manufacturers be liable for misuse of guns? Should printing press manufacturers be liable for misuse of presses? The answer to both questions is "no," according to an amicus brief I filed today in support of a Supreme Court cert. petition. Amici include the Cato Institute, the Firearms Policy Coalition, several other civil rights organizations, and professors with expertise in the First and Second Amendments–including the VC's Eugene Volokh and Randy Barnett.

The case is Remington v. Soto, an appeal from a 4-3 decision of the Connecticut Supreme Court. The 2005 federal Protection of Lawful Commerce in Arms Act (PLCAA) prohibits most lawsuits against firearms businesses. The protection does not apply to guns that are actually defective (e.g., a gun that accidentally fires even when the trigger is not pressed). Nor does PLCAA forbid suits where a firearms or ammunition manufacturer or seller "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." 15 U.S.C. § 7903(5)(A)(iii).

As the amicus brief details, PLCAA was enacted because a coordinated group of local government officials, aided and abetted by HUD Secretary Andrew Cuomo, had filed lawsuits against handgun manufacturers and firearms trade association intended to bankrupt them from litigation costs. Although the defendants had complied with all of the many laws about the manufacture and sale of guns (and the trade associations did not even make or sell guns), the government sought to impose liability based on on broad and nebulous tort theories, such as unfair trade practices, public nuisance, and so on.

After PLCAA became law, plaintiffs continued to bring suits based on the same theories, and alleged that the suits were allowed by the statutory exception for defendants who "knowingly violated a State or Federal statute applicable to the sale or marketing" of firearms or ammunition.

These suits were consistently rejected by the courts, which recognized that plaintiffs' theory of the PLCAA exception would negate the rest of the statute. However, earlier this year a divided Connecticut Supreme Court held that Remington's advertising for the Bushmaster AR-15 was a violation of Connecticut's unfair trade practices statute. Therefore, Remington could be held liable for the 2012 murders at Sandy Hook Elementary School, in which the criminal used an AR-15 rifle that he stole from his mother after he murdered her.

As Remington's cert. petition points out, the 4-3 Connecticut decision is contrary to the text and legislative history of PLCAA, and contrary to PLCAA cases around the nation. An amicus brief from several state Attorneys General describes the harm that the Connecticut decision does to PLCAA's policy of cooperative federalism. The statutory interpretation arguments are elaborated in a brief by 22 members of the House of Representatives. Gun Owners of America concentrates on canons of statutory construction. The National Rifle Association and the Connecticut Citizens Defense League point out that allowing the Connecticut decision to stand will nullify PLCAA and lead to the destruction of the firearms industry. The National Shooting Sports Foundation–one of the trade associations that was targeted in the abusive lawsuits–addresses the doctrine of constitutional avoidance: if a statute can be interpreted in two ways, and one interpretation would raise serious constitutional problems, then the other interpretation should be preferred.

My brief provides a different perspective, examining PLCAA in the broader context of abusive lawsuits against the exercise of constitutional rights–in particular, the abusive libel suits that led to the Supreme Courts's 1964 decision New York Times v. Sullivan.

As the brief explains, before and during the Civil Rights movement, abusive tort actions were used to silence newspapers that exposed abuses in the Jim Crow South. Civil rights
opponents retaliated against such papers through libel suits, even if the article was factually correct. The black press in the South had been targeted for decades and could not afford the costs of litigation. When the national media began significant coverage of civil rights in the South, it too was targeted. Weaponized suits deterred and punished out-of-staters from reporting on Alabama. Eventually, the Supreme Court had to quell the lawsuit abuse, starting with Sullivan, and with follow-up decisions for several years.

Just as abusive civil suits threatened the First Amendment before Sullivan, abusive civil suits began threatening the Second Amendment in the 1980s. Frustrated by insufficient progress in legislatures, gun control advocates brought many product liability suits
against firearm manufacturers and retailers. Although the plaintiffs won only one case, they succeeded in imposing heavy legal costs on the firearms industry.

In the 1990s, dozens of local governments coordinated new lawsuits with the express intention of destroying the firearms industry through litigation costs. Additionally, Secretary of Housing and Urban Development Cuomo organized federally funded housing
authorities to bring more suits. Several firearm manufacturers went bankrupt, and others were driven to the brink.

Finally, just as the Supreme Court halted the abusive lawsuits against the press in Sullivan, Congress enacted the Protection of Lawful Commerce in Arms Act to end
the abusive lawsuits against the firearms industry. Suits based on unfair trade practices and other amorphous theories were among those that Congress expressly intended to forbid.

In the instant case, the Connecticut majority held that Remington's "militaristic marketing" was an illegal unfair trade practice. The holding strikes at the First Amendment as well as the Second. The notion that it is illegal for firearms advertisers to use "militaristic" themes is absurd. The exercise of the right to keep and bear arms
has always had a relationship to military use of arms. For example, the first clause of the Second Amendment is about "a well regulated militia." Colonial assemblies, early state legislatures, and Congress in 1792 mandated that American citizens possess firearms and edged weapons. The federal and state arms mandates were not enacted by legislatures insistent that everyone go duckhunting. They were enacted so that the population
would have combat weapons. If guns were not useful for interpersonal fighting, they would not be "arms," and would not be protected by the Second Amendment.

The wisdom of the American approach to widespread citizen possession of arms was vindicated in World War II, when Hawaii and Maryland relied on volunteer citizens, bringing their own arms, for defense against enemy invaders or saboteurs. Many of the most iconic firearms for American citizens got their start as military arms; these include Colt revolvers, the 16-shot Henry rifle of 1861, and the .30-06 bolt-action rifle (today, a hunting favorite, and in 1906, the U.S. Army service rifle).

Starting in 1903 with congressional creation of the Civilian Marksmanship Program and the National Board for the Promotion of Rifle Practice, the policy of the federal government has been to encourage and subsidize civilian proficiency with arms, particularly, military surplus. By the Connecticut Supreme Court's theory, Congress itself was guilty of an unfair trade practice for using "militaristic" language to encourage citizens to arm themselves.

When the Supreme Court saw the problem of abusive lawsuits against the freedom of the press, the Court "revolutionized the American law of libel . . . in one sudden burst of federal judicial power." (Rodney Smolla, Suing the Press 27 (1986)). The Remington case and its scores of predecessors are an even more egregious abuse of constitutional rights. New York Times v. Sullivan grew out of a 1960 advertisement in the Times that included some false statements about the actions of the Montgomery, Alabama, government, of which L.B. Sullivan was a commissioner. Mr. Sullivan sued the Times, which had published the false statements, but he didn't sue the manufacturer of the printing presses that the Times had used to print the papers.

Suing gun manfacturers for third-party misuse is no more legitimate that suing printing presses for third-party misuse. The suit is all the more abusive in the Remington case, where there is no evidence that the reclusive, deranged criminal who stole the gun from its lawful purchaser had ever seen a Remington advertisement.

Constitutionally speaking, press manufacturers and arms manufacturers are equivalent. To "the Framing generation, the connection" between presses and arms was "commonsensical. The right to bear arms and the freedom of the press presented the exact same type of question for the Framers: can there ever be a natural right to a
man-made device? In the case of arms and presses, the Framers believed so." Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies, 17 Wm. & Mary Bill of Rights J. 1037, 1049–50 (2009).

"It is not hard to imagine why the Framers singled out only these two technologies for constitutional protection. Madison and his contemporaries spoke about the two rights in the same breath, and often in similar ways describing them separately as private rights, the 'palladium of liberty,' and necessary or essential to a 'free state.'" Id. at 1070. This is one reason why the First and Second Amendments were placed next to each other. Both safeguard natural rights—at least according to the Founders.

Imposing tort liability for third-party misuse would eliminate press manufacturers and arms manufacturers. It has always been known that presses and arms are sometimes misused. "As Madison said, 'Some degree of abuse is inseparable from the proper use of
every thing.'" Sullivan, 376 U.S. at 271 (citing 4 Elliot's Debates on the Federal Constitution 571 (1876)).

While the New York Times petitioners asked for a revolution in tort law to protect the First Amendment, the Remington petitioners are asking only for a faithful interpretation of a federal statute. In both cases, the stakes are the same: whether the Supreme Court will allow the misuse of tort suits to destroy an enumerated right.

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  1. Yes, how abusive to want to sue someone when kids are shot in the streets…

    1. Do you conflate everything in your life?

    2. I agree! When kids are shot in the streets, someone must be sued!

      Please post your full name and address, so I can sue you for those horrid acts.

    3. Then you would, of course, allow suit of every automobile manufacturer when one of their vehicles kills a kid.

      In the instant case, millions of its products are used safely without innocent children losing their lives. Here is one situation, out of millions, where selection of the product might have been affected by its advertising – except isn’t this the case where his mother was the one buying the product, and he was using hers.

      Millions of cars are sold because they look fast. Some of the purchasers, or maybe their children, try to the go fast in the cars, and kill kids. Or some cars are sold as sexy, and in an attempt to impress chicks with his masculinity, some guys take some crazy chances, and instead of getting se with the chicks, they end up killing innocent hildren. Using your logic, these would, too, be valid cases for lawsuits.

      1. Yes, indeed, this is the case where the shooter, Adam Lanza , first shot and killed his mother, then took her Bushmaster firearm to Sandy Hook elementary school for his armed rampage. I would suggest the case should have been dismissed on both sides of Palsgraf v. Long Island Railroad Co. – foreseeability (majority) and proximate cause (dissent). Lanza’s mother, a woman, is the one who purchased the firearm. And, being a woman, how likely is it that she made her purchase decision based on it being portrayed as a military weapon. And how foreseeable was it to the company manufacturing the firearm that Lanza would have killed his mother to steal her firearm, before setting off on his murderous spree?

      2. “Millions of cars are sold because they look fast. Some of the purchasers, or maybe their children, try to the go fast in the cars, and kill kids.”

        You may find this strange, but if a car manufacturer actually did an ad campaign showing their cars being driven 125 miles an hour on public roads, and then someone went out and drove the car the way it was depicted in the commercial and killed some people, I could very easily see a lawsuit against the auto company.

        1. Is it just manufacturers and dealers, or should the makers of Fast and Furious start worrying?

          1. It’s manufacturers. Artistry (1) is fully protected speech, as opposed to commercial speech, which receives somewhat less protection, and (2) is not advocating the use of the product, but rather depicting it.

            Artistry that did directly advocate unlawful activity would have to meet the Brandenburg v. Ohio test, but it’s not impossible for artistic speech to be unprotected incitement.

            1. “Artistry (1) is fully protected speech, as opposed to commercial speech”

              I’ve definitely seen reckless driving in the ads for the various Fast and Furious movies. Those would be commercial speech, just like the ads for the guns are commercial speech. Of course, the distinction between commercial and noncommercial speech is rapidly disappearing.

              “is not advocating the use of the product, but rather depicting it.”

              Where are all of these adds from gun manufacturers advocating that people use their guns to murder children? I’ve yet to see a gun ad promoting illegal use of the gun, much less murder.

              And how do you know whether they are advocating or merely depicting? There is plenty of ideologically-inspired art that seeks to advocate as well as entertain.

              1. I’ve definitely seen reckless driving in the ads for the various Fast and Furious movies. Those would be commercial speech, just like the ads for the guns are commercial speech.

                No, they aren’t commercial speech with respect to the cars, only with respect to the movie. The commercial transaction they propose is buying a movie ticket, not a car.

                1. And how do you know whether they are advocating or merely depicting? There is plenty of ideologically-inspired art that seeks to advocate as well as entertain.

                  Plus there’s plenty of paid product placement in movies. A famous example is the Transformer movies, which converted Bumblebee from a VW Bug to a Camaro at GM’s behest.

        2. Let’s see if I can paraphrase this correctly:

          firearm manufacturer actually did an ad campaign showing their weapons being fired in public schools, and then someone went out and fired the weapon the way it was depicted in the commercial and killed some people, I could very easily see a lawsuit against the firearms company.

          This is somehow connected to Sandy Hook … how?

        3. I could very easily see a lawsuit against the auto company.

          Me too; trial lawyers will always file frivolous lawsuits if there are deep pockets involved.

          1. If causation could be proven, it wouldn’t be frivolous.

            1. Proving causation at that level would be very nearly impossible.

              1. What if the driver admitted he thought it was OK to do it because he saw it in the commercial?

                1. Then the driver needs to be sent for a psych evaluation. That’s a delusional position for him to take when speed limits are posted everywhere.

                  1. Foreseeable misuse of a product is actionable. It’s one reason soda companies were held liable for the people who stupidly shook up glass soda bottles until they exploded.

                    1. So all they have to do is put a warning on it ‘Not to be used to commit murder.’ and they’re good.

            2. – “If causation could be proven, it wouldn’t be frivolous.”

              And if my grandmother had wheels she’d be a wagon.

        4. In case you were wondering, 10 seconds with a search engine found a short video of reckless driving in car commercials.

          These behaviors, undertaken by normal people, or in normal driving environments, will almost certainly cause injury, death, and destruction. Why, then, would the manufacturers not be liable?

          Because on every subject but guns, common sense is that manufacturers are not responsible for a properly functioning product misused by criminals.

    4. It most definitely is abusive to sue someone other than those who did the shooting.

      why not sue the gangs doing the shooting?

    5. Oh look, our sneering Euro is back!

      Would you like a beer with your sneer?

      And are all Dutch people like you?

      1. One famous Dutchman didn’t get his motor vehicle license until he was 18 (IIUC) which was after he already had his super license for driving Formula 1 cars.

        As for Dutch beer, don’t serve the export Heineken please! 🙂

  2. “Yes, how abusive to want to sue someone when kids are shot in the streets…”

    We must sue someone, the defendants are someone…

  3. I will leave aside the obvious points that (1) guns are directly dangerous to physical safety (and are indeed designed to hurt and kill people) whereas printing presses are only indirectly dangerous to physical safety and (2) the First Amendment and the Second Amendment protect completely different rights for completely different reasons, and there’s no reason why we ought to listen to anyone whose reasoning consists of “duh, you do this in the First Amendment context, ergo you must do this in the Second Amendment context”.

    Rather, let me take on a less obvious huge hole in this argument instead. New York Times v. Sullivan protects PUBLISHERS. Those publishers do, of course, publish speech uttered by others. But they have their own, separate, constitutionally protected First Amendment interests. Both the speaker AND the publisher have First Amendment rights to disseminate their speech.

    In contrast, gun manufacturers have absolutely zero Second Amendment rights, other than the right to keep and bear arms as individuals. Nothing in the Second Amendment protects the right to sell arms, or to make them. Indeed, given the context of a well regulated militia, a law that required the government to supply the arms to the people would be entirely constitutional.

    There’s thus no basis for the gun industry to claim any sort of privilege under Times v. Sullivan. The only basis on which this sort of liability rule could raise constitutional difficulty is if it actually left the people with no mechanism for obtaining arms to keep and bear. And even in that situation, the government wouldn’t be required to relax the liability rule; it would simply need to arm the militia itself.

    This is a really terrible, awful, unprincipled, hackish argument that, whatever the good motives of the professors who are making it, is carrying water for the arms dealing and manufacturing industry and has literally nothing to do with anyone’s Second Amendment rights. It’s disgusting.

    1. Dude, can you even logic?

    2. The First Amendment doesn’t protect anyone’s right to listen, does it? Then the government can tell the cops: He is allowed to speak! But arrest anyone who listens.

      1. How is a listener or a reader analogous to an arms dealer? A listener is downstream and benefits from free speech.

        If anything, your analogy demonstrates exactly why the First and Second Amendments are different animals. The analogous person to a listener is… a shooting victim.

        1. The argument you present is that the Second Amendment allows people to own and carry weapons, but not make or sell them – despite those being ancillary rights that are part and parcel of being able to own and carry arms. This argument is absurd.

          The First Amendment right to Free Speech implies the ancillary right of others to listen… because otherwise the first right is meaningless. Same with Freedom of the Press. What good is the right to own or operate a printing press, if you have no right to buy paper or ink?

          1. 1. As I said, the First Amendment and Second Amendment are not congruent. They just aren’t. “I can automatically do X with bullets because I can do it with words” is not a good argument. The rights are different, the countervailing interests are different, etc.

            2. I repeat, the analogous person to a listener is a recipient of a bullet. You are not asserting the right of people to be shot, which would be the direct analogy to the right of people to listen.

            3. It’s true that there’s such a thing as ancillary rights. But there’s no reason arms dealing for a profit is one of them. Speech is different when supplied by the government (indeed, it’s propaganda), so obviously there is a right to a private supply of speech. But the government can supply the exact same guns a private supplier could. So there’s no reason to protect a right to engage in arms dealing for profit. Let alone a right to a particular business model to maximize sales of weapons.

            1. “But the government can supply the exact same guns a private supplier could. So there’s no reason to protect a right to engage in arms dealing for profit.”

              Or the government could supply entirely different guns that a private supplier could. Which is why, in this county, we don’t let our individual rights depend on the government’s largess.

            2. Um, no. I made the argument that the First Amendment is dependent on ancillary rights. I did this by pointing out a specific ancillary right of the right to speech, and how your proposal for the Second Amendment would impact the First.

              You are the one attempting to stretch it into a physical analogy, which I never did. Your analogy sucks, and your attempt to draw conclusions from it is equally bad.

              Also, you claim that there is no right to conduct a business is absurd – almost as counterfactual as you can get. Nor can businesses be prevented from profiting. If you feel otherwise, I would be very interested in seeing what historical court cases you can find that demonstrate your position.

            3. I’d call your argument too clever by half, except that it would have to be clever, and it isn’t.

              No, if people have a right to keep and bear arms, you can’t ban manufacturing and selling them, any more than if people have a right to freedom of the press, you can’t ban ink and paper, and the manufacture and sale of printing presses.

              And this is obvious to the point of absurdity.

              1. This is the same retarded argument you hear people make when they say, thinking they’re SOOOOO clever, “You have a right to guns, but not to bullets, so let’s tax those at $5,000 each!”

            4. Women have a right to abortion, but the government can ban the provision of abortion services?

              1. You two are both ignoring the option of having the government provide the service.

                1. They are ignoring it because it’s not relevant.

                  Services which government can choose to provide it can also choose not to provide. When government has that power then what you have is a privilege, not a right.

                  1. Really? Most of the rights attendant to the criminal justice system are provided by the government. They are still rights.

                    E.g., the cruel and unusual punishment clause does not require the government to offer prisoners the option of a private prison.

                    You guys LIKE the arms industry. I get that. Guns would be less fun if the government provided them and they were regulated like tobacco products with all sorts of checks and warnings and everything. Maybe the government would even paint them pink and attach flowers on the end of your AR-15’s, instead of them being marketed by gun companies and publications with girls in bikinis and footage of people firing off multiple rounds.

                    But your fun is not what the Second Amendment protects. The Second Amendment protects your right to a weapon so you can come to the defense of the government. That’s what it says, and that’s the one thing Kopel gets right in his post. If the government wants to control the marketing of firearms, it absolutely can. The arms industry is not protected by the Second Amendment.

                    1. If you think the Sixth Amendment permits the government to prohibit private attorneys in criminal trials and require everyone to use a public defender, you are off your rocker.

                    2. The Sixth Amendment’s history is clear that it protects private counsel.

                      But that’s a matter of the specific history of the provision. The Eighth Amendment does not require private prisons. And the Second Amendment does not protect the for-profit arms industry.

                    3. “If the government wants to control the marketing of firearms, it absolutely can.”

                      The marketing of firearms is protected by the First Amendment.

                    4. “The Sixth Amendment’s history is clear that it protects private counsel. But that’s a matter of the specific history of the provision.”

                      So? How is it any more clear than that women have the right to private abortions, which you claim can be taken away? Your argument is nothing more than a just-so story.

                      “The Eighth Amendment does not require private prisons.”

                      Have you even read the Eighth Amendment? It doesn’t require public prisons either.

                      “And the Second Amendment does not protect the for-profit arms industry.”

                      Sure it does. Just like the First Amendment protects for-profit media corporations.

                    5. E.g., the cruel and unusual punishment clause does not require the government to offer prisoners the option of a private prison.

                      That… doesn’t make sense as an analogy, since cruel and unusual punishment isn’t a right to anything at all. It’s a right not to have things done to you.

                    6. The Second Amendment protects your right to a weapon so you can come to the defense of the government.

                      There are some times people just reveal how ignorant they are, and this is a Grade-A example.

                      The Second Amendment does not exist for you to come to the defense OF the government. Even the most cursory readings of the Federalist Papers or the Brutus Papers shows that.
                      The Second Amendment exists so that people can protect themselves, including FROM the government.

                    7. You are misreading those clauses, Dilan. The Eighth Amendment is a negative right. It is a restriction that defines what the government can not do. What you are proposing would require a positive right – and that’s not built into the current structure.

                      To your other point, though, no I do NOT like the arms industry. As a veteran, I firmly agree with Sherman that “It is only those who have not heard a shot, nor heard the shrills & groans of the wounded & lacerated (friend or foe) that cry aloud for more blood & more vengeance”. Nothing about this is fun. Not to the people who understand.

                      To be blunt, you’re wrong about the point of the Second Amendment. It protects your right so you can come to the defense of the people. They may need defending from an outside threat but they may also need defense from their own government. The Second Amendment protects in both scenarios.

                    8. – “The Eighth Amendment does not require private prisons.”

                      If anyone needs to be sued it’s the law school you attended.

                    9. “The Second Amendment protects your right to a weapon so you can come to the defense of the government.”

                      Though Toranth has already replied most-adequately, I’ll add my Really?! The Second Amendment, as Mr. Justice Scalia most accurately propounded, simply acknowledges the preexisting right of defense of self and turf – a right that preceded the formation of any government, much less the Federal government or any of the State governments.

                      It is a right to defend, self, family, neighborhood, community and, if necessary, various political structures representing those elements of society from ANY malefactor. And sometimes FROM those elements and structures if and when they become malefactors.

                    10. The purpose of the Second Amendment, like the other nine amendments in the Bill of Rights, is to LIMIT the power of the federal government, and since the ratification of the Fourteenth Amendment, to limit the power(s) of state and local government as well. It does not “provide” rights, which pre-existed the Constitution.

        2. The analogous person to a listener is… a shooting victim.

          Uh, you just said, two sentences earlier, “A listener… benefits from free speech.” So how can someone who benefits from the exercise of a constitutional right be “analogous” to a “shooting victim”?

          We’re not talking about formal analogies here in any case; we’re talking about the fact that a necessary party to the exercise of a constitutional right is also protected by that right. Gun manufacturers and the 2A. Churches and the free exercise provision of the 1A. Listeners and the free speech provision of the 1A. Abortion doctors and the abortion provision of some undetermined emanation from a penumbra.

      2. The First Amendment does protect the right to listen. Griswold v. Connecticut recognized the right to read and receive information.

        1. In a logical world, of course it does.
          But I’m responding to Dilan’s world, where the right to keep and bear arms doesn’t include the right to manufacture or buy arms.

          1. It includes the right to obtain arms. There’s no particular reason why such arms (which are, of course, part of the system for attaining a well regulated militia) must be sold to you.

            1. Totally. You can’t outlaw abortion, you can just outlaw the sale of abortion services.

              1. If the state provided abortions to all who needed them, you definitely could outlaw the sale of abortion services.

                1. I can forsee the next argument that the state will provide abortions to all who need them, but almost no one needs them. So the sale of abortion services can be outlawed.

                  Right?

                2. So, we can sue the gun manufacturers out of business, so long as the state provides a firearm free of charge to whoever wants one. Or is only whoever “needs” one? And the government decides that?

                  1. Where is the state going to get guns without manufacturers?

                    We used to have a government armory system but it no longer exists.

                  2. Doesn’t have to be free of charge either. Regulating the militia….

                    1. Every time you cite the militia clause, you reveal again that you understand nothing about the Second Amendment.

                    2. Regulating the right of the people to keep and bear arms is not regulating the militia. Besides, the militia, as it was contemplated by the founders was regulated out of existence decades ago.

                    3. Matthew and Bob:

                      Actually every time you deny that regulating the militia includes regulations of weapons, you show (1) you don’t know anything about how military forces work and (2) you are just dangerous anarchist zealots who worship your stupid guns and don’t give a crap about the solemnity of your obligations to the US and state governments as a member of the unorganized militia.

                    4. You have the wrong meaning of the word ‘regulation’.
                      You have the wrong grammar of the Amendment.

                      The rights of the people to keep and bear arms shall not be infringed.

                      Again, even the slightest trace of analytical thought would show how silly your interpretation is.
                      Let us propose for a moment that your claim is correct, and the Second is protecting the right of folk to carry arms in the militia serving the government. This Amendment would then prevent the government from preventing government troops, called up and serving at the will of the government, from keeping and bearing arms.

                      In other words, it would be 100% pointless. Attempting to claim that your proposed meaning is correct is to assume that the Founders deliberately debated and put an Amendment into the Constitution that they knew had no purpose.

                    5. – “Actually every time you deny that regulating the militia includes regulations of weapons, you show (1) you don’t know anything about how military forces work and (2)”

                      Given how many times over several years now this bullshit has been corrected here, the fact that you’re *still* trying to get away with it indicates that you’re either dishonest to the core, or have a particularly pernicious form of amnesia.

                      – “you are just dangerous anarchist zealots who worship your stupid guns “

                    6. – “you are just dangerous anarchist zealots who worship your stupid guns”

                      And you might possibly also be a 12 year-old girl.

                    7. So…the government provides guns, but only to those who “need” them, and the government decides the “cost” as well?

                      You can’t think of any possible way that might go wrong?

                      Perhaps we should extend that to the government providing abortion services, cars, or even voting registration. But only to those who “need” them, in the government’s wise opinion.

                    8. “Given how many times over several years now this bullshit has been corrected here”

                      Let’s be clear here. The Second Amendment EXPRESSLY CONNECTS THE RIGHT TO THE NEED OF A MILITARY FORCE TO DEFEND THE COUNTRY.

                      I didn’t make that up. It’s in the text. And text controls over everything. It controls over statements of the drafters, as even Scalia admitted. It controls over anti-gun regulation law professors. It DEFINITELY controls over anarcho-libertarians.

                      This DOESN’T mean you don’t have the right to a gun. Liberals were wrong about that. But it DOES mean that your right to a gun is squarely within that military context. If the government wants to supply your gun, they can. If the government wants to discipline and train you, they can. If the government wants to register and license you and your weapon, they can. If the government wants to prevent a private, for profit advertising industry from promoting the misuse of guns, it can.

                      It’s RIGHT THERE IN THE TEXT OF THE AMENDMENT. And 99.9 percent of the arguments of Second Amendment zealots consists of trying to separate the right from its military context, because you can’t sell so many guns if you only sell to responsible people who treat guns as tools and don’t get a thrill from them.

                    9. “I didn’t make that up.”

                      Yes you did. And typing in all capital letters doesn’t make anything you type any less silly.

                      If it’s the Second Amendment that gives the government the right to do all of these things related to the militia, what’s the point of the actual Militia Clauses in the Constitution itself?

                    10. “The Second Amendment EXPRESSLY CONNECTS THE RIGHT TO THE NEED OF A MILITARY FORCE TO DEFEND THE COUNTRY.”

                      Just to be clear, you’re citing the Esper court’s interpretation? Because the Heller decision’s very first holding is:

                      “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia…”

                    11. The phrase you are so obsessed over has no legal meaning. The courts have ruled on this, explicitly: the only operant part of the Amendment is this: “the right of the people to keep and bear Arms, shall not be infringed”.

                      Yelling, or repeating your false statements multiple times, does not make them true. It does not make your false claims about the history of the Amendment true. And it does not make your odd opinions about ancillary rights true.

                      It does reveal how untrustworthy the rest of your claims are, though.

                    12. – “Let’s be clear here.”

                      When used by a politician, that phrase is a reliable indicator that what follows will be 100% bullshit. And more often than not it’s bullshit that is based on nothing more than ignorance and wishful thinking.

                      – “The Second Amendment EXPRESSLY CONNECTS THE RIGHT TO THE NEED OF A MILITARY FORCE TO DEFEND THE COUNTRY.

                      I didn’t make that up. It’s in the text. And text controls over everything. It controls over statements of the drafters, as even Scalia admitted. ”

                      Well, what do you know? It was a flawless predictor here too.

                3. “If the state provided abortions to all who needed them, you definitely could outlaw the sale of abortion services.”

                  Yes, forcing women to seek permission of the government, and only providing the types of abortions the government wants to provide, is totally consistent with the right to privacy recognized in Roe. What a brilliant argument.

                  1. Is that how you would describe Britain? Because state owned health services exist.

                    1. I’m pretty sure neither Roe, nor its reasoning, have anything to do with the provision of medical care in Britain, so I don’t particularly care to describe Britain in any way.

                      Let’s not forget that what you are claiming is that it would be consistent with Roe v. Wade and its progeny (somewhat ironic) to make it illegal for private doctors to provide abortions.

                    2. Well, yeah. Remember Alfie Evans, who died because Britain refused to provide health care, and refused to let the parents seek it elsewhere?

                    3. I am claiming that the existence of a constitutional right does not imply the right of the private sector to provide it. The First Amendment is an exception because of the nature of speech, but most rights can be provided exclusively by the government if that is how the government wishes to operate. If the government fails to provide the right, it’s a court case.

                    4. “I am claiming that the existence of a constitutional right does not imply the right of the private sector to provide it.”

                      Which is silly.

                      “The First Amendment is an exception because of the nature of speech,”

                      Speech, perhaps, but not the press. You are claiming that the government could prohibit private printing and require everyone to use the government as their printer. Good luck with that.

                      “but most rights can be provided exclusively by the government if that is how the government wishes to operate.”

                      No.

                    5. No, I am not saying that, because there is a tradition and history of a private press, because protecting private expression is the very purpose of the First Amendment, and because the text specifically mentions the “press” as a mass noun which refers to the privately owned press.

                      None of those things have anything to do with the Second Amendment.

                    6. “No, I am not saying that”

                      Because you positions are completely inconsistent.

                      “because there is a tradition and history of a private press”

                      As opposed to the tradition and history of private gun ownership?

                      “because protecting private expression is the very purpose of the First Amendment”

                      And protecting private ownership of arms is the very purpose of the Second Amendment.

                    7. “but most rights can be provided exclusively by the government if that is how the government wishes to operate.”

                      I guess Sevo isn’t around, so I’ll say it: Fuck off slaver!

            2. ” There’s no particular reason why such arms (which are, of course, part of the system for attaining a well regulated militia) must be sold to you.”

              How do you get a gun [“in common use” per Heller] unless someone sells it to you? A rudimentary home made firearm [assuming you can even make that] is not all that 2A protects.

              1. The government could provide it for you or sell it to you.

                1. Are you high?

          2. “But I’m responding to Dilan’s world”

            That is probably an exercise in futility if you’re not ingesting the same hallucinogenic substances that Dilan is currently ingesting.

    3. “But they have their own, separate, constitutionally protected First Amendment interests. Both the speaker AND the publisher have First Amendment rights to disseminate their speech.”

      How could the New York Times have had a First Amendment right back then? Everyone knows that it was the terrible Citizens United decision that granted corporations the freedom of speech.

      1. Snark aside, corporations have had constitutional rights at least since the Southern Pacific case in the 19th Century.

        1. And how are gun manufacturers not corporations? Or are you trying to play on whether ‘corporation’ could mean ‘company’? You just contradicted your OP here.

    4. “The only basis on which this sort of liability rule could raise constitutional difficulty is if it actually left the people with no mechanism for obtaining arms to keep and bear. And even in that situation, the government wouldn’t be required to relax the liability rule; it would simply need to arm the militia itself.”

      That’s not quite correct, the secondment amendment prevents the government from “infringing” on the RKBA, not that it can’t abolish it altogether.

      But if we modify your argument slightly to say that the existence of product liability means that the government has to give people free guns, I’d say that you make a very good point.

      1. Not the mere existence of product liability. You would have to show that the product liablity was so debilitating as to prevent individuals from arming themselves.

        1. In what way did these guns fail? It seems you are claiming they performed their job exactly as designed – perhaps too well, in your opinion.

          And yet because you don’t like the result, you declare this a failure of the product?

          1. That’s a state law issue, and perhaps a federal law issue to the extent the federal statute applies.

            The Constitution says nothing about this sort of products liability theory.

            1. Are you trying to claim that the Federal Government doesn’t have the right to regulate interstate commerce?

    5. Nothing in the Second Amendment protects the right to sell arms, or to make them.

      By analogy, nothing in the First Amendment protects the right to sell newspapers, magazines, computers, or to make them. The Press is free to give away its stuff without charge.

    6. Press makers have no right to make and sell printing presses, either, under this argument. It’s about the right to use presses to mass-produce speech, not to make the presses themselves.

    7. Damn Dilan,
      Does it hurt being that ignorant?
      Or just normal for a Progressive serf?

      It almost sounds like Dilan was playing that game called Twister when he came up with this comment.

    8. The proper analog to the publishers in Sullivan would be the users of the guns, not the gun manufacturers. That’s why the author’s Second Amendment argument in the amicus brief and as outlined in the main article is, frankly, risible.

      His First Amendment argument, however, is much stronger. A law that punishes advertisement based on content (“militaristic”) is a problematic law.

    9. You forget that the Bill of Rights is not a list of limitations on the people (or because of the decision in Citizens United v. FEC, companies; which of course dismantles your entire argument that manufacturers which are companies, have no rights) but rather limitations on the Government, state and federal.

      Your argument fails on it’s face from the beginning for almost every reason you give being some kind of logical twisting of reality. First, due simply to the fact there are a multitude of items in society made to do a great many dangerous things. Knives were made to kill, as are arrows.

      Publishers employ writers, who are often the providers of the content and there for part of the company. If you don’t agree with that I’m sure you’ll find it interesting that many companies employ legal contracts that make all the products of it’s employees property of the company. So that whole argument is out the window.

      If you read the notes from the discussion of the 2nd Amendment you’d know first that ‘well regulated militia’ actually mean ‘any able bodied male who could follow directions’ (or orders if you will). The law at the time was such that each individual was to supply their own arms. While a law requiring the government to supply arms would be Constitutional, it doesn’t then preclude the basis of an industry outside the government from supplying it. Applied to any other item which the government can readily supply (and there’s lots), there would be no reason for industry to supply anything when the government can do it so why does any industry exist except at the behest of the government?

      The gun industry actually claims it under the Protection of Lawful Commerce in Arms Act and while the principle is pretty much the same as Times v. Sullivan, it is it’s own law. So, yes the government has decided that the liability requirement on the part of the gun manufacturers is limited.

      Your logic here fails, in every instance.

      1. “Your logic here fails, in every instance.”

        It is as it always has been.

        1. Upon reading more of Dilan’s posts, he misinterprets how law works. The government doesn’t grant rights and privileges as he supposes, it restricts them.

    10. If making and selling arms is unprotected by the 2nd Amendment than so is making and selling printing presses and the ink and paper therefor, then so is operating a forum such as this where uncongenial thoughts might be expressed.

      As for guns being intended to kill, so they are. And the law recognizes circumstances under which killing is lawful, necessary. Why should we not have tools for that?

  4. I would not recommend that the winners of a narrow, highly contested constitutional decision proceed, after the ink on the decision has hardly had time to dry, on theories that their political opponents are motivated by hate and behaving abusively.

    The dispute over firearms in this country is an ordinary political dispute. The scope of the 2nd Amendment is still not clear. The Connecticut Supreme Court might well be wrong on its statutory interpretation and need to be reversed.

    But to characterize its decision as based on nothing more than hate and abuse is merely to illustrate how bad these hate and abuse type arguments are.

    Such an approach inevitably gives the most power to the most blind . Those least capable of seeing other sides of the story are most prone to calling their political opponents irrational, evil, abusive, hateful, etc., and hence have the least scruples about using raw judicial fiat power to get at their opponents and get their way.

    Such a rule tends, in the end, to promote, not civil liberties, but tyrrany.

    1. Absolutely.

      It’s also really terrible legal reasoning. Really an embarrassment to lawyering.

    2. “I would not recommend that the winners of a narrow, highly contested constitutional decision proceed, after the ink on the decision has hardly had time to dry, on theories that their political opponents are motivated by hate and behaving abusively.”

      This isn’t about Masterpiece Cakeshop.

      Nor is this case really about the Second Amendment or McDonald. It’s about the proper interpretation of the Protection of Lawful Commerce in Arms Act. McDonald is almost 10 years old, and the PLCAA is almost 15 years old. Pretty sure the ink is dry on both.

      1. Then why are these hacks raising New York Times v. Sullivan and talking about the First and Second Amendments?

        To be clear, I don’t condemn any gun rights enthusiast who wants to give PLCAA a broad interpretation. That’s a totally colorable argument.

        But this is junk.

        1. “Then why are these hacks raising New York Times v. Sullivan and talking about the First and Second Amendments?”

          It’s all explained, quite clearly, in the post. One incapable of simple reading comprehension should probably refrain from calling others hacks.

          Congress enacted the PLCAA to protect the Second Amendment much like the Court invented the “actual malice” standard to protect the First Amendment. But all the Court needs to do is apply a faithful interpretation of the PLCAA to resolve the case, which is a statutory, not constitutional, claim.

          1. That’s not enough to make analogy. Congress passes lots of laws to protect lots of rights, and Sullivan isn’t relevant to any of them.

            1. “That’s not enough to make analogy.”

              It most certainly is.

              The root of your reading comprehension problem may run deeper than I thought.

              1. Let me put it this way.

                I am an experienced appellate lawyer. You are an anonymous idiot on the Internet. When I tell you (and others tell you as well) something is terrible reasoning, we are probably right, and you are probably… an anonymous idiot on the Internet.

                1. “I am an experienced appellate lawyer.”

                  Who can’t understand a simple blog post.

                  “You are an anonymous idiot on the Internet.”

                  Who can understand a simple blog post.

                  “When I tell you (and others tell you as well) something is terrible reasoning, we are probably right, and you are probably… an anonymous idiot on the Internet.”

                  See, this here is an attempt at an argument from authority, a common logical fallacy. Unfortunately, you’ve repeatedly undercut your claimed authority by demonstrating an inability to understand a simple blog post.

                  1. An appeal to authority is an INFORMAL fallacy, which means it is only fallacious when there are reasons to discount the authority. (As opposed to a formal fallacy like assuming your conclusion.)

                    I realize that every amateur on the internet learned the words “appeal to authority” without actually having any education in what a logical fallacy actually is, but that kind of makes my point about why amateurs on the Internet need to spend less time lecturing experts and more time learning about stuff.

                    1. “An appeal to authority is an INFORMAL fallacy, which means it is only fallacious when there are reasons to discount the authority.”

                      Like, say, being unable to understand a simple blog post?

                    2. Your experience as an appellate lawyer, assuming you are telling the truth and not another internet liar, has no bearing on the correctness of either Kopel’s or Jph’s arguments. Appealing to your personal attributes, rather than your argument, is a fallacy and should be ignored.

                      Now, if you were a legal historian of the Second Amendment, or of the Constitution – rather than, say, an intellectual property lawyer – your position might – might – be stronger.
                      But in this case, you have made multiple trivially false claims, fallen from argument to insult, failed to understand the simple meaning of common words like ‘analogy’, and in general failed to make clear or convincing arguments supported by even a middling level of evidence. Whatever claim to ‘expertise’ you may attempt to make is undercut by your failure to demonstrate it.

            2. The analogy is fine. In each case, there’s a constitutional right, and then an abusive use of tort law to try to infringe on that right indirectly in a way that could not be done directly.

              In the 1A context, Congress hadn’t legislated so the federal courts took it upon themselves to recraft the legal regime to prevent this backdoor infringement. In the 2A context, Congress itself acted to prevent it.

      2. The constitutional argument above does seem incredibly weak, especially since Sullivan did not involve an abusive lawsuit in the first place. It was defamatory speech, full stop.

        1. Sullivan involved a racist local official using a racist court system to stop the campaign for civil rights by punishing a northern paper.

          That seems like abuse to me.

    3. ReaderY: Those least capable of seeing other sides of the story are most prone to calling their political opponents irrational, evil, abusive, hateful, etc., and hence have the least scruples about using raw judicial fiat power to get at their opponents and get their way.

      But enough about modern day Progressives.

      Defending ‘Reasoned Debate About Public Safety,’ San Francisco Supervisors Declare the NRA a ‘Domestic Terrorist Organization’

      1. They deserve to be gassed.

    4. ReaderY, they are admittedly and publicly trying to eliminate the manufacture and sale of firearms to civilians by holding the manufacturers and sellers of firearms liable for every death caused by firearms. That’s their literal goal. How is that not hateful and abusive?

    5. I’m a bit confused by your post.

      It seems you are saying that the decision of the Connecticut Supreme Court was “characterize[d] … as based on nothing more than hate and abuse”. I don’t see anything in the Op-Ed or in the brief that says this. Rather, I understand that any attribution of abuse was applied to the litigation pursued against the gun industry prior to the PLCAA.

      In this regard it seems the characterization of that litigation as abusive is amply-supported; for this I refer to the references and quotations in II.B. of the Argument of the brief. These clearly indicate that the litigation was inspired by animosity and animus, and for the purpose of ultimately destroying its targets. Hence, the enactment of the PLCAA.

    6. Yeah, well, when conservatives believe that their opponents are irrational, evil, abusive, and hateful, they’re right.

  5. Well, this comment thread went real stupid real quick.

    Martinned – normally respect your viewpoint, but “we gotta sue someone” is below your usual standard. “Won’t somebody think of the children” is not a great rhetorical device. Should Heather Heyer’s estate sue Dodge? If Colt is put out of business, where will the Netherlands (and most of NATO) source their weapons?

    1. – “Martinned – normally respect your viewpoint”

      That’s pretty sad.

      – “but “we gotta sue someone” is below your usual standard. ”

      No, it really isn’t.

  6. The National Rifle Association and the Connecticut Citizens Defense League point out that allowing the Connecticut decision to stand will nullify PLCAA and lead to the destruction of the firearms industry.

    Kopel may not be the best source for the other side’s interpretations and motivations, let alone conclusions such as that one. Presumably, a firearms industry which did not insist on militaristic advertising themed and art directed to invoke a constitutionally unprotected right of insurrection, or other forms of armed lawlessness, would not run afoul of state laws. I would need more specifics to do more than guess, but I know I can’t trust Kopel to deliver specifics of that sort. Kopel has long been a pro-gun advocate paid by the NRA. To his credit, he has at least been forthright about that.

    As for the analogy to the printing press, well that is not really a thing, except in gun rights fever dreams, and on this blog with EV’s “historical” research. It is a fact of history that the founders did intend protection for an institutional press. Likewise, the founders intended the right to arms to support an institutional purpose—namely a well regulated people’s militia.

    I suggest arguments to the contrary find little backing from the historical record. That may be why when you look to the proponents, you notice lawyers and advocates like Kopel and Volokh, but scant support from historians. I do not claim specific founding-era historical expertise on gun issues. Naturally, I am open to being corrected about the historical record. But I want the correction to come from historians who do have that expertise. Kopel and Volokh are not that.

    1. “Presumably, a firearms industry which did not insist on militaristic advertising themed and art directed to invoke a constitutionally unprotected right of insurrection, or other forms of armed lawlessness, would not run afoul of state laws.”

      This too. I too assume that a firearms industry that sold their products as tools to be treated with the utmost care, safety and solemnity, consonant to the danger that they can pose to society if misused, would not run afoul of this sort of liablity. They might sell fewer guns, but so what? Since when does the Constitution mandate a particular business model for selling arms?

      1. Stop repeating Lathrop nonsense. There is no such advertising.

        1. Kevin, maybe we are making headway. Your defense is that there is no such advertising, right? So if we can demonstrate you are mistaken, and that there is such advertising, you are okay with lawsuits? Or are you still about to insist that depiction of any and every kind of lawlessness is protected in gun advertising?

          1. The only ads for firearms I’ve ever seen depicting lawlessness were ones that had somebody using a gun to defend against a criminal.

            The criminal’s lawlessness was depicted, of course.

            What lawlessness did you have in mind?

          2. You won’t mind providing links to the actual advertising, IN FULL CONTEXT, thanks.

            1. Kevin, as someone who worked for years building marketing materials for major corporations, I suggest that as much as FULL CONTEXT matters in a sensible world, it is exactly the wrong way to look at marketing. Deliberate violation of context is sort of marketing 101.

              Consider those pharmaceutical ads you see on TV, which show attractive, healthy, happy actors going about their thriving lives, while the voice over gives you the long list of bad news, which is notably real context. To present all the signifiers in context, you would have to show the actors breaking out in hives, choking and grabbing their throats, coughing their lungs out in regions where certain fungal infections are common, and keeling over.

              Nobody evaluating gun marketing ought to be under any obligation to ignore insinuations, thematic connections, graphic suggestions, etc., while figuring out what message the marketers really intend. The ability of pro-gun apologists to make up a story to put that stuff safely away in a folder marked, “Context: Anodyne,” is exactly what the marketers are after—right after they fill up the folder marked, “Exciting, macho, insurrectionist gun violence, ready for anything.”

              The link Dilan Esper provides below is a good start. You tell me, what does “JUSTICE FOR ALL” mean there? Put it in the fullest context you can apply, with every possible meaning considered carefully. Make a list. Because if there is one thing you can count on, marketers consider every possible meaning carefully, and choose their signifiers to include what resonates in the target demographic. It doesn’t much matter to them what someone outside the intended customer set thinks, so long as the targeted customer gets the message.

              Esper’s link shows a pretty good example of that method at work.

              To understand that marketing, make a list of every possible meaning you can apply to each graphic, each slogan, each description, and then check to see what shows up in common on all the lists.

              1. Dilan Esper’s link does not show a single instance of “militaristic advertising themed and art directed to invoke a constitutionally unprotected right of insurrection, or other forms of armed lawlessness.” I mean, one of the ads even talks about how the people who work for Bushmaster have served in the military and law enforcement.

              2. I looked through all three ads linked to be Dilan Esper and not a single one of them is militaristic. There is absolutely no encouragement towards insurrection or lawlessness of any kind, and in fact, two of the ads refer to the rifles being used by the military and law enforcement.

                1. No answer for, “JUSTICE FOR ALL?” What could it mean? Why is it there?

                  Never mind then. Here is Remington’s attorney, James Vogts:

                  “Obviously, all products’ manufacturers are trying to sell to the market,” Vogts told the panel of judges. “The purpose is to sell products. Emotional ads are commercial speech. They are under First Amendment protection.”

                  Remember, this is the product promoted with the slogan, “CONSIDER YOUR MAN CARD REISSUED.” So that is the emotion Bushmaster wants to find, provoke, and to sell to.

                  1. Nothing you’ve cited comes close to qualifying as “militaristic advertising themed and art directed to invoke a constitutionally unprotected right of insurrection, or other forms of armed lawlessness,” which was you original claim.

                  2. So “Justice for All” is some kind of sinister comment, now? Would “Justice for only some” be more to your liking? This is what progressives have practiced for eons, anyway.

                    Wow, your paranoia about guns and gun owners is really amazing.

                    1. Nothing noteworthy about using “JUSTICE FOR ALL,” in marketing for a semi-automatic rifle? What does that slogan, or that concept, have to do with a gun in private hands? Will buying it turn its new owner into an agent of justice? If he feels unjustly treated, is the gun the tool he needs to vindicate whatever claim he has for better treatment? Does the person who buys the gun thereby achieve kinship with the justice-seeking (but deadly) lawmen (and vigilantes) so often depicted in movies and on television? Is that the pitch? If not, what is that slogan doing there?

                      Kevin, your inability to note the incongruity of that usage cannot be anything but deliberately obtuse. You do it because taking thoughtful notice of what is obviously intended would embarrass your argument that there is nothing wrong with the marketing. That gives you credit, which I think you deserve, for at least normal intelligence, by the way.

                      Please note also, analysis of marketing cannot end with the ability to find a strained-but-benign explanation. It has to assume that every implication presented in the marketing materials was repeatedly vetted, and that all unwanted messages were ruthlessly stripped away. The assumption must be that whatever even an unbalanced person might take from the marketing materials was left there on purpose, for that person to find.

                    2. Nothing you’ve cited comes close to qualifying as “militaristic advertising themed and art directed to invoke a constitutionally unprotected right of insurrection, or other forms of armed lawlessness,” which was you original claim.

                    3. Lathrop: Nothing noteworthy about using “JUSTICE FOR ALL,” in marketing for a semi-automatic rifle? What does that slogan, or that concept, have to do with a gun in private hands? Will buying it turn its new owner into an agent of justice? If he feels unjustly treated, is the gun the tool he needs to vindicate whatever claim he has for better treatment? Does the person who buys the gun thereby achieve kinship with the justice-seeking (but deadly) lawmen (and vigilantes) so often depicted in movies and on television? Is that the pitch?

                      Your imagination is vivid and also fevered, no doubt caused by your hatred of and paranoia about gun owners who are about to get you – WITH JUSTICE FOR ALL.

                      Sheesh. Perhaps you can start writing movie scripts instead?

          3. “So if we can demonstrate you are mistaken, and that there is such advertising.”

            Necessary but insufficient. It would also be necessary to show that the adds were produced by the specific defendants in the NY lawsuits, as opposed to:

            1. having been produced by local gun dealers.
            2. a parody produced by gun control proponents.

            1. This is a pretty good post from a conservative website that shows some of the advertisements. At the very least, this defendant is obviously marketing these weapons as combat weapons, not as hunting rifles or really personal tools of any sort.

              https://thefederalist.com/2019/03/15/court-rules-remington-can-be-sued-for-marketing-guns-for-combat/

              1. In other words, there is no evidence of “militaristic advertising themed and art directed to invoke a constitutionally unprotected right of insurrection, or other forms of armed lawlessness” in the ads.

              2. Not one bit of lawlessness depicted there.

              3. I looked through all three ads and not a single one of them is militaristic. There is absolutely no encouragement towards insurrection or lawlessness of any kind, and in fact, two of the ads refer to the rifles being used by the military and law enforcement.

                (Unless you think that the military and law enforcement are involved in insurrection and lawlessness).

      2. I must admit that it’s a pretty hot take to argue that this lawsuit is fine because Connecticut is really violating the 1A rather than the 2A.

    2. “Presumably, a firearms industry which did not insist on militaristic advertising themed and art directed to invoke a constitutionally unprotected right of insurrection, or other forms of armed lawlessness, would not run afoul of state laws.”

      Do you have any evidence that there is a firearm industry which does “insist on militaristic advertising themed and art directed to invoke a constitutionally unprotected right of insurrection, or other forms of armed lawlessness”? Because I sure haven’t seen it.

      “It is a fact of history that the founders did intend protection for an institutional press.”

      So banning books is okay, just stay away from newspapers?

      1. If you think ordinary firearms are “weapons of war”, and that only soldiers should be carrying guns, it seems evident that you’re going to see “militaristic advertising” where other people wouldn’t. Just the fact that they’re carrying guns in the ads would be enough.

        1. The point is the opposite, Brett. Gun rights advocates can’t swear up and down that an AR-15 is a hunting rifle or a target rifle, while the industry markets them as combat weapons.

          1. Many objects can function in more than one way in more than one context. That they are suitable for hunting does not mean that they aren’t suitable for combat.

            But in any case, the legal argument is still frivolous. Saying that a weapon is suitable for combat does not cause someone to shoot up a school.

          2. Dilan, guns are mechanisms for launching projectiles at destructive speed. The exact same physics that is require to reliably kill a deer is going to reliably kill a human. The overlap between the needs of the military and civilians is, thus, almost complete. Especially when you consider that there are circumstances under which it is perfectly legal, even laudable, for a civilian to shoot to kill another human.

            There are very few firearms features that are distinctively military. Both the military and civilians want power, reliability, accuracy, magazine capacity, versatility. Maybe bayonets, though I could make a case for having one if you’re pig hunting.

          3. – “Gun rights advocates can’t swear up and down that an AR-15 is a hunting rifle or a target rifle, while the industry markets them as combat weapons.”

            Nearly every single basic firearms design (with a few minor exceptions) used for hunting, target shooting, self-defense, etc were originally developed for use in combat. And that’s true not just of firearms, but of traditional archery equipment as well. Your abject ignorance of the subject…which you share with the vast majority of those on your side of the issue, and which is required in order to spout the nonsense you constantly regurgitate…makes you think that there’s some fundamental distinction between a what makes for an effective “hunting” weapon and what makes for an effective infantry combat arm.

            Nearly every standard issue military arm (or one(s) based on the same basic designs) has become popular (and effective) with hunters after (or even during or prior to) its service with the military, from the English long bow to the AR platform. In fact Colt marketed the AR to civilians before the M16 variant was adopted by the U.S. military. This should give you pause to reconsider your reasoning. That it doesn’t is evidence of either a lack of reasoning abilities on you part, or simply a pig-headed unwillingness to educate yourself on the subject.

            1. And the .50 BMG sniper rifle was adopted by the military after it became popular with long range precision target shooters.

              So designs do flow both ways, which is hardly shocking when the mechanical requirements are basically identical.

          4. All traditional bolt-action hunting rifles are weapons of war. They are derived from one of the three military bolt action designs: the Mauser, the Lee-Enfield and the Mosin-Nagant. These three military bolt action designs were used to kill millions during World Wars I and II.

            The German, Soviet, and Japanese armies’ ordinary infantry soldiers were primarily armed with bolt-action rifles essentially indistinguishable from traditional hunting rifles.

    3. “Presumably, a firearms industry which did not insist on militaristic advertising themed and art directed to invoke a constitutionally unprotected right of insurrection, or other forms of armed lawlessness, would not run afoul of state laws.”

      I am a routine consumer of firearm advertising and I don’t see any of these things. You hate guns and gun owners, so perhaps you imagine it. But stop making up stuff.

      1. Kevin, I neither hate guns, nor gun owners. Over the years, I have owned twelve firearms myself. When I was younger, I did quite a bit of hunting in Idaho, where the hunting season ran from August – January, a long season which afforded plenty of time in the field every year. For years, I worked a night shift and hunted nearly every day.

        Unlike many of the pro-gun commenters on this blog, I have a good deal of experience carrying guns with the intent to use them to kill something. That may have something to do with my impatience with the feckless gun romantics and would-be insurrectionists who comment here. Nothing I hear from that crowd reminds me in the least of what I became used to when I talked with people who had genuine practical experience with guns. So while I do not hate gun owners, it is at least partly because I am able to distinguish the fools from the others.

        1. The Second Amendment has nothing to do with hunting, and your hunting experiences when you were young have nothing to do with the right of citizens to keep and bear arms for self-protection today, when you are in your dotage.

          Unlike you, many of the pro-gun commenters on this blog and I have a good deal of experience carrying guns with the intent to use them to kill criminal attackers. That may have something to do with our impatience with your anti-gun slanders.

          1. There is one sense in which the Second Amendment has a lot to with hunting.

            The ethics of hunting include weapon care and safety, respect for the ecology (including only hunting certain animals and at certain times of year), and not using one’s weapon in a way that would injure a human.

            Similarly, the ethics of serving in a militia, including the unorganized militia (which includes all adult male gun owners, under the Militia Act), includes many of the same principles. Keep your weapons safe and secure, and do not use your weapon other than in a legitimate military or civil defense operation or for training or practice.

            So when someone talks about hunting, they are talking about the culture of responsible gun ownership. Which is what the Second Amendment is all about. We don’t want anyone in the militia who treats a gun like a toy or carries on fantasies of spraying a field with bullets in armed combat.

            The problem with the arms industry, fundamentally, is that marketing to irresponsible gun owners sells more guns.

            1. “The problem with the arms industry, fundamentally, is that marketing to irresponsible gun owners sells more guns.”

              Wrong. The problem with the arms industry is that a well cared for gun will last a hundred years, and not much new stuff comes along to justify making an additional purchase when for most people 2-3 guns are all they “need” for hunting and self-defense. So, the arms industry creates more and more niche guns for niche markets and that they need more than 2-3 guns. Still, many people have way more golf clubs than they need, and it’s not my money, it’s theirs, so spend away my friends.

              The same problem exists with many products, notably cars, where everyone gets upsold for features and speed when 99% of the time you never go faster than 75mph.

              1. But a well regulated militia might include reducing those unneeded gun purchases, which can threaten the public safety that the Second Amendment was supposed to protect.

                1. Are you just going to keep repeating the same nonsense over and over again?

                  The Second Amendment does not exist for the benefit of the government. Read the Federalist Papers or the Brutus Papers – they are quite clear on that. Even a “lawyer” like you can understand them.

                  1. – “Are you just going to keep repeating the same nonsense over and over again?”

                    Well, to be fair, that is pretty much his whole act.

        2. And also, since you claim to be a hunter, you should know that all modern hunting rifles are weapons of war. They are derived from one of the three military bolt action designs: the Mauser, the Lee-Enfield and the Mosin-Nagant. These three military bolt action designs were used to kill millions during World Wars I and II. The fastest of the three designs is the Lee-Enfield: http://en.wikipedia.org/wiki/Lee-Enfield

          Quote:
          The fast-operating Lee bolt-action and 10-round magazine capacity enabled a well-trained rifleman to perform the “mad minute” firing 20 to 30 aimed rounds in 60 seconds, making the Lee-Enfield the fastest military bolt-action rifle of the day. The current world record for aimed bolt-action fire was set in 1914 by a musketry instructor in the British Army—Sergeant Instructor Snoxall—who placed 38 rounds into a 12-inch-wide (300 mm) target at 300 yards (270 m) in one minute.

          38 shots into a 12-inch target 300 yards away in one minute!

          Why were you carrying this weapon of war / insurrectionist fantasy in American civilian life?

          1. “you should know that all modern hunting rifles are weapons of war. They are derived from one of the three military bolt action designs: the Mauser, the Lee-Enfield and the Mosin-Nagant.”

            My Marlin .30/30 lever action rifle and my brother’s .300 Savage pump action beg to differ with this statement.

            1. The lever action was originally marketed towards the military, but it never took off domestically. The Turks, armed with lever actions, defeated the Russians, armed with single shot rifles. In WWI the Russians used lever action rifles to supplement their meager production capabilities of the Nagant. Famously, of course, the Indians had lever actions and Colonel Custer didn’t.

              Also, the U.S. did issue a pump action shotgun to troops in WWI. The Coast Guard’s standard shotgun is a pump action Remington 870. I’m sure others are using pump action guns too, but pump actions never took off for rifles, even in the civilian world.

              1. But the statement I was contesting wasn’t that modern rifles generally all descend from military rifles, but rather that they all descend from three specific bolt action military rifles.

                So your comment about the Original Winchester lever action rifle being marketed to the military is irrelevant as are your comments about military pump action shotguns.

          2. Kevin, please put the gun pedantry aside, and tell me what you learned while carrying your guns in the field, and using them to kill.

            1. That gun owners are overwhelmingly very law abiding and safe people to be around and our society is safer when law abiding people are armed.

              Another link for you that you won’t read:

              Crime Prevention Research Center: Concealed Carry Permit Holders Across the United States (PDF)

              Quote from the Summary:

              During President Obama’s administration, the number of concealed handgun permits has soared to over 14.5 million – a 215% increase since 2007

              Between 2007 and 2015, murder rates fell from 5.6 to 4.7 (preliminary estimate) per 100,000. This represents a 16% drop. Overall violent crime fell by 18 percent. Meanwhile, the percentage of adults with permits has soared by 190%.

              Regression estimates show that even after accounting for the per capita number of police and people admitted to prison and demographics, the adult population with permits is significantly associated with a drop in murder and violent crime rates.

              Concealed handgun permit holders are extremely law-abiding. In Florida and Texas, permit holders are convicted of misdemeanors and felonies at one-sixth the rate that police officers are convicted.

              1. A bunch of statistical-looking conclusions, lacking any specific statistics from which the conclusions are derived, authored by the confessed liar Mary Rosh? Why would anyone read it?

                KevinP, the fact about gun studies—pro-gun studies, and pro-gun-control studies—is that when you peek behind the conclusions, they fall apart. Almost all of them fall apart. Only the least ambitious of them, for instance, the ones which survey newspaper reports to catalogue specific gun crimes have even minimal claim to reliable methodology.

                That is because for decades there has been systematic resistance to using government policy to collect accurate, systematic data about gun use, gun crime, gun types, gun injuries, gun owners, gun prevalence, defensive gun use, and other gun-related information. Much of the needed information could only come after local cooperation, which it would take the federal government to organize, standardize, fund and collate.

                That has not happened, because gun advocates and their lobbyists prefer that information to stay unavailable. They have even prevailed on the federal government to keep gun information from firearms dealers from being stored on computers, so that it cannot be studied systematically.

                So, sorry, John Lott’s (Mary Rosh’s) full-of-beans assertions about guns and gun culture aren’t founded on anything reliable. They cannot be, because nothing reliable has ever been collated. Lott’s allegations aren’t worth citing, and they aren’t worth reading. If you bring that kind of stuff into your own comments, it just makes you look credulous.

                1. Lathrop: A bunch of statistical-looking conclusions, lacking any specific statistics from which the conclusions are derived, authored by the confessed liar Mary Rosh? Why would anyone read it?

                  So you didn’t bother to read it, no surprise whatsoever. If you had bothered to do so, you would find that this startling claim has been taken from easily available online data:

                  Concealed handgun permit holders are extremely law-abiding. In Florida and Texas, permit holders are convicted of misdemeanors and felonies at one-sixth the rate that police officers are convicted.

                  I myself went to the Texas DPS web site, and downloaded this information to make sure that this claim was correct, and in fact it was!

                  It’s a pity you never know the joy of looking at data and confirming it.

              2. Kevin, you could not be more wrong about the relationship of guns used for hunting to guns used for self-defense. What connects them is the guy holding the gun.

                The would-be self-defense guy learns at the gun range about capacity, but not about its limitations. Problems come from practicing under near-perfect conditions. Which means near-perfection in (among other factors):

                1. Lighting.
                2. Secure footing.
                3. Absence of distraction.
                4. Staying mentally on-task.
                5. Hydration.
                6. Absence of fatigue.
                7. Ambient temperature.
                8. Advance knowledge of target location and number.
                9. Controls to prevent danger to bystanders.
                10. Absence of any need to manage a narrative to justify taking a shot, based on unexpected occurrences noticeable as events unfold.

                Hunting teaches about capacity limitations on skills and assurance—specifically, limitations which 1–10 above impose, but on others too, like emotional control. By contrast, gun range experience (like watching movie and TV gun fights) instills romantic, even utopian, attitudes among gun users.

                To anyone with practical gun experience—by which I mean experience using guns to kill, in uncontrolled conditions—those utopian attitudes are unmistakably evident from comments on blogs like this one—showing gun users who imagine themselves skilled far beyond anyone’s realistic abilities. It is an assurance they achieve despite no realistic challenge to their capabilities at all. That is a dangerous condition in which to carry a gun.

                Hunting is where you discover how far short of gun-range perfection your real-world capabilities leave you. But it takes a while, and a lot of experience, to get the full message. For instance, you might have to fall down with a gun in your hand a few times, before you experience the one unmanageable fall where you completely lose muzzle control. Until that happens, previous falls where you managed everything perfectly just build false confidence.

                There are unlimited dangerous mishaps possible. You need to suffer some of them, and get away lucky, before you are qualified to judge accurately your own gun skills. Hunting lets you do that in a way that no amount of range practice, or toting a concealed pistol around in a holster, ever can.

                Once you get that kind of practical experience, your confidence in hard won skills will be on a realistic basis. Your estimate of your skills and capacity will be notably less than when you started. Conversely, your estimate of the dangers of having a gun around will increase. And your blog comments will be recognizable to other experienced gun users by the restraint and earned modesty they reflect, and by their lack of bluster.

                1. Wow, good points!

                  >1. Lighting.
                  Right. Crime frequently happens in dim light, so there are low light shooting classes, where you learn the finer points of managing light (ambient and from flashlights), backlighting (because crooks, unlike game animals, sometimes shoot back). I’m not sure how much shooting in the dark hunters do; I always thought most hunting was done betwixt dawn and dusk.
                  >2. Secure footing.
                  I’m curious how much of the training hunters get is focused on shooting while moving. I had the notion that hunters don’t routinely do that, while how to avoid tripping/still shoot accurately while moving is a staple of defensive training classes (because moving can be an important part of the encounter, e.g. to move off the axis of attack of someone with a knife).
                  >4. Staying mentally on-task.
                  Right. It’s so easy to get distracted and start thinking about baseball game during the mugging.
                  >5. Hydration.
                  Another good point. In the classes I’ve had, they even let people drink from their water bottles during class. What if the mugger waits until you’ve gone days w/o water?
                  >7. Ambient temperature.
                  Hmmmm. Most classes are at outdoor ranges that are pretty much at the local ambient temperature. It might be hot, it might be raining, it might be snowing. Not sure how hunting is different?
                  >8. Advance knowledge of target location and number.
                  Another good point! But wait … if I know in advance that there are two muggers waiting for me at point X, wouldn’t it be smart to just not go there?
                  >9. Controls to prevent danger to bystanders.
                  So most classes specifically address this; there are shoot/no shoot targets, bystander targets, and so on. When you are hunting, are you frequently shooting from the middle of a crowd? Somehow I didn’t envision that as common.
                  >10. Absence of any need to manage a narrative to justify taking a shot, based on unexpected occurrences noticeable as events unfold.
                  Hmmmm, I’m confused again. I wouldn’t have thought that the important legal aspects of self defense justification were sort of orthogonal to the legalities of hunting. For example, justification of a defensive shooting requires that the crook be a mortal danger to you, which is a standard that seems pretty different than say duck hunting.

                  It almost seems to me that hunter safety classes taught by experienced hunters would be the best preparation for hunting, and self defense classes taught by e.g. veteran LEOs would be the best preparation for self defense. I wonder why police departments waste their academy time with the type of training you deprecate, instead of just giving the students time off to go hunting?

    4. Look, Stephen, advocates of the lawsuits were quite explicit at the time about their goal being to bankrupt the firearms industry by litigation costs even if the lawsuits lost. You don’t have to read somebody’s mind if they’re bragging about how clever they are.

      I get quite irate about the demand that we forget what our foes were saying, and presume good motives they themselves denied.

      1. That’s the gun banners’ most annoying trait. They mock incessantly anyone who says, rightly, that their end goal is to ban all privately-owned firearms, but then claim, when given proof of this goal, that the speakers were “joking” or “just playing politics.”

    5. So, I suppose a press which insisted on printing articles about overthrowing the government in a quasi-legal manner could then be shut down?

      1. AL, you guess wrong. Just as a press which advocated violent overthrow of the U.S. government by armed insurrection could not be shut down.

        1. But they could be sued and bankrupted out of existence?

          1. If the press engaged in incitement that fit within Brandenburg (which is admittedly very narrow), it could be sued out of existence.

            I happen to be one of the few people here who was actually a major participant in a lawsuit which sued a large publication out of existence (for a different reason, of course, but also based on harm that they caused 🙂 ), so never say it’s impossible. 🙂

            1. Well, not actual harm, but I guess the right absurd evidentiary rulings can do wonders.

              1. Of course it was actual harm. That video was revenge porn. The fact that it involved a public figure doesn’t change that basic fact.

        2. Sorry Stephen you’re confusing my attempts to draw a analogy to Dilan’s odd logic, with what’s real. My apologies.

    6. re: “It is a fact of history that the founders did intend protection for an institutional press.”

      No, it’s not. When you are wrong on something so basic, it’s not hard to see why you’re wrong on everything else. Freedom of the press is and always has been an individual freedom, not a right held by favored companies.

      1. Rossami, you seem not to notice that there is no contradiction in decreeing both an individual right to press freedom, and also an institutional right. To take it a step further, in the founding era the notion of a 1A right to press freedom for everyone depended utterly on protecting a 1A right to press freedom for an institutional press. No alternative existed. To take it a step further than that, there is no logical need for those rights to be construed identically.

        Indeed, it would today be a mistake to construe them identically, because in the course of news gathering there are things an institutional press can do, and legal risks an institutional press may run, which do not apply in the cases of individuals. Those institutionally unique aspects of press freedom need their own specific protections, which in some instances cannot wisely be extended to individuals.

        For instance, to grant, either explicitly or tacitly, a power to protect anonymity of sources used in news gathering is something which simply cannot be extended to individuals without too much burdening due process. However, that power has generally been extended to the institutional press (in some instances explicitly, and in others tacitly), and the resulting access to news, about government especially, has been of great benefit to society. That power of protecting sources has thus served the institutional press and individual citizens alike. In its impact, the cost of extending that power to the institutional press has been negligible, both in relation to its benefits, and also in relation to the far greater cost in the burdening of due process if that same power were extended to individuals.

        Of course none of that has anything specific to do with the historical record, which stands on its own, and says what it says. And what is says is that the institutional press is protected—without saying that a private right to press freedom goes unprotected. That silence about the private right may have something to do with the conditions of the age, in which use of press freedom by individuals—unlike the situation today—almost always, required resort to use of the institutional press in a job-work capacity. At that time, the notion of a private right unrelated to the institutional right would not have come naturally, nor been uppermost in mind. Practical supports to justify such an idea were nowhere in sight, nor institutional ones either.

        Indeed, it seems a bit questionable that as a practical matter, a private right—independent of an institutional right—could have been exercised at all. How would an individual, ostensibly with a right to press freedom, have exercised it? Almost always, only with the cooperation of someone in charge of an institutional press. Nor would that private individual have enjoyed any right or power of assistance from government to procure that needed cooperation. That probably does not mean the founders meant to disparage a private right, but it seems to make nonsense of any claim that only a private right was intended.

        I suggest we both understand that the root of this discussion, about an individual right to press freedom vs. an institutional right, had its genesis in the hostility of today’s movement conservatives toward the institutional press—the hated mainstream media. Movement conservatives want the mainstream media knocked down a peg. I suggest that is not a motive on behalf of press freedom. It is also not relevant to the historical record.

        The historical record involving the founders and the press was both written, and enacted directly—embodied in methods used by the founders to foment revolution, declare independence, create the Constitution, and secure its ratification. A roster of leading founders is likewise a roster of Americans habitually reliant on the institutional press, avid in their support of it, and adept in its use. Consider Samuel Adams, Thomas Paine, Thomas Jefferson, James Madison, John Jay, Alexander Hamilton, John Adams—all of them inseparably linked in history to the institutional press. Indeed, it is barely an overstatement to say those are known to us mostly in terms of what they used the institutional press to accomplish. For instance, it was in the newspaper office of the Boston Gazette that the Sons of Liberty made their headquarters—and from which they staged the Boston Tea Party. It was in the institutional press that the works of Hamilton, Madison, and Jay were published, to become known as the Federalist Papers. Or consider Ben Franklin, who was of his age in America the greatest proponent and entrepreneur of the institutional press—probably the greatest in the world. When the Constitution was put in final form, the first thing done with it was to put it in Franklin’s hands, to take to the office of the Pennsylvania Packet, and Daily Advertiser, a newspaper owned by Dunlap and Claypoole, for publication to the nation.

        Anyone suggesting the 1A did not intend specific protections for an institutional press has a great deal of history to the contrary to contend against. To assert no institutional protection was intended, and only access to the press as mechanism, is to suppose the founders had no notion of what they did, or how they accomplished it. It is a nonsensical argument.

        1. “For instance, to grant, either explicitly or tacitly, a power to protect anonymity of sources used in news gathering is something which simply cannot be extended to individuals without too much burdening due process. However, that power has generally been extended to the institutional press (in some instances explicitly, and in others tacitly), and the resulting access to news, about government especially, has been of great benefit to society.”

          Your argument would be more convincing if the First Amendment recognized a right to keep sources confidential.

        2. “Indeed, it seems a bit questionable that as a practical matter, a private right—independent of an institutional right—could have been exercised at all. How would an individual, ostensibly with a right to press freedom, have exercised it? Almost always, only with the cooperation of someone in charge of an institutional press.”

          Familiarize yourself with the underlying facts of Citizens United, then get back to us.

          1. Pizzle, my reference was to conditions during the founding era. The “originalist” claim has been made that the 1A guarantee of press freedom at that time did not protect an institutional press, but only protected access to the use of a printing press as a device.

            In the founding era, unlike today, private initiative in publishing pretty much had to come with the cooperation of someone who managed an institutional press. There was no Joe Keyboard analogue in the late 18th century. So the claim that the 1A was intended to protect only each person’s access to a printing press as a device is preposterous. That would have been no right at all. Government had no power to force the institutional press at the time to cooperate with anyone, and there was no press alternative generally available otherwise.

            The 1A guarantee of press freedom did not disparage free access by ordinary persons, if they could arrange it. But the guarantee was intended specifically to secure a place in society—safe from government interference—for the institutional press. Claims to the contrary are nonsense.

            I am mystified by what any of that might have to do with Citizens United.

            1. The First Amendment Freedom of the Press meant the right to own and operate a printing press. It would be more accurately called “Freedom of Publication”, except that wasn’t the usage at the time.

              The Founders felt this was necessary, because starting with the idea of Cato and reinforced by the case against Zenger, the Brits had demonstrated their despotism by attempting to shut down anti-British news by seizing printing presses and punishing people for printing things the Brits didn’t like.

              Here’s a classic Blackstone reference:

              Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press

              The “institutional press” is an invention of newspapers, who ran a series of cases to expand their immunity to defamation and national security laws… during WWII! There was no such thing in the colonial times.

            2. “The “originalist” claim has been made that the 1A guarantee of press freedom at that time did not protect an institutional press, but only protected access to the use of a printing press as a device.”

              That’s not, and never has been, the claim. The claim is that it protects anyone producing written communications, not just members of an institutional press. This, of course, fully protects an institutional press because they produce written communications just like ordinary people. Some may even say that they are ordinary people.

        3. “Rossami, you seem not to notice that there is no contradiction in decreeing both an individual right to press freedom, and also an institutional right.”

          And you seem not to notice that the US Supreme Court has consistently rejected the institutional right argument for the 1A free press clause.

          1. No, Matthew. The Supreme Court has rejected the notion that the free press rights conferred by the Constitution on an institutional press preclude press freedom for others. Unfortunately, that has been misinterpreted—mostly by folks eager to hamper what they deride as the mainstream media—as meaning that the institutional press goes unprotected, except insofar as it shares the right of everyone else to access the means to accomplish publication. That is not what the 1A meant in the founding era, and just about turns the original meaning around 180 degrees.

            Fortunately, I don’t think the Supreme Court has done what you seem to think it has, and stripped more-general 1A protection from institutional media. If you can show me a decision to the contrary, I will take a look. In particular, are there any Supreme Court decisions overturning state laws protecting source confidentiality? I would not be surprised to hear that some lower court had got confused and done that, but I am not aware of anything like that from the Supreme Court. Maybe I overlooked it.

            By the way, why would anyone suppose it was a bad thing to protect a news gathering privilege for the institutional press, even if the same privilege could not for practical reasons be extended to everyone? Doesn’t everyone benefit from the fruits of institutional news gathering? And can’t people of every opinion stripe form and operate press institutions? What is movement conservatism’s hostility to institutional media even about?

            1. There was no such concept as the “institutional press” in colonial times.

              Since your initial premise is wrong, everything that follows from it is also wrong.

              1. Toranth, I assume I misunderstand you, or that you misunderstand what I mean when I refer to an “institutional press.” Perhaps you take “institutional,” to mean, “incorporated.” If so, then you are correct on the detail, but I am at a loss to understand why it ought to matter.

                If that is not the distinction you intend, then you are mistaken. Read the Wikipedia article about the Boston Gazette, and tell me what aspect of an institutional press is missing. Note its longevity as a business, and its continuation under the differing leadership of quite a few successive managers. Note how many community leaders associated themselves with it. Note that Wikipedia, at least, characterizes it as the most influential newspaper in American History.

                Or check out the assorted newspapers which Ben Franklin helped others found (while in some cases at least, retaining a personal interest), from New England, through Pennsylvania, down into the Carolinas, and into the Caribbean. On the basis of that history, Franklin may even have a claim to be the inventor of the franchise model of doing business.

                I cannot understand what you could mean when you say there was no institutional press in the colonial era. Please explain.

                1. There was people whose business was printing news, certainly.

                  However, there was no concept of “the press” as a special industry or group of people. The word “press” did not exist in that usage.

                  There were the rights of individuals and there were the privileges granted to the government.

            2. “Fortunately, I don’t think the Supreme Court has done what you seem to think it has”

              The problem is that nobody thinks what you think they seem to think.

            3. “By the way, why would anyone suppose it was a bad thing to protect a news gathering privilege for the institutional press, even if the same privilege could not for practical reasons be extended to everyone?”

              Once again, there is no news gatherer privilege protected by the First Amendment.

    7. Upon reading the available notes of the discussion by the founders specifically on 2A you will find what you seek historically.

      https://teachingamericanhistory.org/resources/convention/debates/0823-2/

      It starts there and goes on for a few days at least.

      The Protection of Lawful Commerce in Arms Act is the defense of why this lawsuit should have been tossed with prejudice. While Sullivan isn’t directly applicable, it is an apt analogy in that these groups are attempting the same actions as Sullivan just in a different industry; bankrupting through litigation.

  7. “…As the amicus brief details, PLCAA was enacted because a coordinated group of local government officials, aided and abetted by HUD Secretary Andrew Cuomo…”

    If you want to be taken seriously, don’t be a deliberate asshole. The coordinated group was *assisted* by Cuomo. Please have the integrity to use neutral language when describing something.

    At least, if you want to be seen as a fair commentator, rather than as a whore for one side or another. “Asshole” seems a bit harsh, so I retract that. Please don’t be a dick. ‘Kay?

      1. – “this too”

        That’s funny coming from the commentator who wrote this earlier:

        “you are just dangerous anarchist zealots who worship your stupid guns “

        1. I wouldn’t put that in a brief, though. 🙂

          1. – “I wouldn’t put that in a brief, though.”

            Neither did the author. He stated in an opinion piece…which was already pointed out multiple times, by multiple people.

            How the hell did you make it through law school?

    1. If you want to be taken seriously, don’t be a deliberate asshole.

      So I guess you don’t want to be?

      1. David,
        You are a commentator. I am a commentator.
        David Kopel is an official part of the VC. And he made an original post. I expect much much more from people posting under the imprimatur of the website, but I could not care less if you or I or any other person responds to an OP with profanity. Part of the rough-and-tumble of the internet. And, frankly, I think, “Hey, don’t be a dick.” is fairly anodyne and mild for internet comments.

        Do you really expect nothing more from VC posters in relation to the hoi polloi who add comments about those posts? You’re entitled to take that view. But man; that’s setting the bar really REALLY low for Eugene, David B, Ilya, David Kopel et al. I, respectfully, take a different approach.

        1. santamonica811: Perhaps you expect nothing more from your tolerant and inclusive progressive friends?

          The dark cloud of intolerance is always descending upon Republicans but it always turns out to be composed of progressives and Democrats.

          Defending ‘Reasoned Debate About Public Safety,’ San Francisco Supervisors Declare the NRA a ‘Domestic Terrorist Organization’

      2. DMN, you have to admit “coordinated group of local government officials, aided and abetted by HUD Secretary Andrew Cuomo” is op-end language, not briefing language.

        1. He didn’t use that language in the brief but he could have as it accurately describes Cuomo’s behavior.

        2. Well, this is essentially an op-ed, so your point would be?

        3. From a year 2000 WSJ editorial:

          “Litigators boasted that their attacks would bleed the thinly capitalized gun industry into submission. Housing and Urban Development Secretary Andrew Cuomo warned gun makers that unless they cooperated they’d suffer “death by a thousand cuts.” Several makers have in fact gone bankrupt since the courtroom siege began.

          Supporters of the new settlement seemed to treat as a virtue that it doesn’t have to be run by Congress for approval.”

          The OP is accurate with his description of Cuomo.

        4. – “you have to admit “coordinated group of local government officials, aided and abetted by HUD Secretary Andrew Cuomo” is op-end language, not briefing language”

          Which might explain why he used it in an op-ed and not in a legal brief.

    2. Then-HUD Secretary and now New York Governor Andrew Cuomo is a thug and a bully. Please have the integrity to use the correct language when describing something.

      The dark cloud of intolerance is always descending upon Republicans but it always turns out to be composed of progressives and Democrats.

      NRA Sues New York for Punishing Financial Institutions Doing Business With Group

      Quotes:
      The National Rifle Association on Friday sued the state of New York for fining and coercing financial institutions until they severed their connections to the gun-rights group.

      Democratic Governor Andrew Cuomo and the Department of Financial Services engaged in a “blacklisting campaign” against banks and insurance companies who did business with the NRA, infringing upon the group’s constitutional right to “speak freely about gun-related issues and defend the Second Amendment,”.

      The NRA presented as evidence a letter from Maria Vullo, the DFS’s superintendent, warning banks about the “reputational risk” of doing business with gun-rights groups. The state also pressured the companies behind the scenes.

      “Directed by Governor Cuomo, this campaign involves selective prosecution, backroom exhortations, and public threats with a singular goal—to deprive the NRA and its constituents of their First Amendment right to speak freely about gun-related issues and defend the Second Amendment,” the complaint states.

      1. Kevin, you are doing a bad job with your selective quotations. Why not give us the meat of the allegations, instead of the generalizations. You know, the proof of selective prosecutions, the content of the backroom exhortations, the explicit content of the public threats, and the stated intent to deprive the NRA of its rights. Do that and you might win me over.

        1. Ah yes, the old, “I can make a claim about gun advertising without any support whatsoever but the articles you provide in support of your claim are not detailed enough” gambit.

        2. Follow the link and it might lead you to the content that you claim to seek, but will ignore.

      2. There’s a reason, if a foreign terrorist nuked New York City or San Francisco, I’d be celebrating with a beer that America wasn’t targeted.

    3. If one is writing an amicus brief then one normally has chosen a side in the argument.

      BTW: Aid and abet is a better description of Cuomo’s actions using the power of government.

  8. Watching conservatives try to wrap themselves in the civil rights flag — ignoring past and present gay-bashing, racism, misogyny, xenophobia, and other flavors of clinger bigotry — makes me glad the culture war has had consequences.

    1. As always, YOUR bigotry is omnipresent.

    2. Oh, I must have forgotten the Constitutional Clause that says that those people (and their ideological cohorts) whom Kirkland believes are bigoted lose Constitutional rights. How silly of me.

      1. Bigots have rights, too.

        But not a right to avoid being described as bigots.

    3. Speaking of being wrapped in flags… The dark cloud of fascism is always descending upon Republicans but it always turns out to be composed of progressives and Democrats.

      He brought an American flag to protest fascism in Portland. Then antifa attacked him

      Quote:
      Paul Welch came to the downtown protest Aug. 4 to let his political leanings be known.

      With pride he clutched his U.S. flag as he moved among the crowd of like-thinking demonstrators.

      Soon a group of black-clad anti-fascist protesters, also known as antifa, demanded he lose the flag, calling it a fascist symbol. Welch refused, and a tug-of-war ensued.

      Video captured by Mike Bivins, a freelance journalist, shows what happened next.

      As Welch and the counter-protesters wrangle over the flag, another masked counter-protester begins to strike Welch’s body from behind using a weapon concealed in black fabric.

      That person then uses the weapon to club Welch on the back of the head, causing him to collapse instantly. The demonstrator with the weapon wanders off.

    4. Rev….

      When “your side” insists on shutting down and defacing women’s shelters that are trying to protect battered women… Maybe you should rethink things.

      1. I am not familiar with the circumstance you describe . . . and doubt you describe it accurately.

        1. Of course you’re not familiar. I’ll give you the exact cases, and you can google your own preferred choice of source.

          Case 1: The Vancouver Rape Relief & Woman’s Shelter was vandalized by Trans activists. Because they operate a transition house for women and their children, which aims to protect abused women and help them to heal from horrific violence and sexual assault…..

          Case 2: The Hope Center in Anchorage, Alaska helps the homeless population, including a women’s only overnight shelter, for those most vunerable to abuse. A large, drunk, injured biological man wearing a nightgown showed up one night, demanding to be let in. The Center forwarded him to a hospital ER. The result? A lawsuit, because he said he was “discriminated against”.

          Case 3: The Poverello House in Fresno, CA acts as a women’s shelter. By law, it was required to let those “identifying” as a man in. Which happened, resulting in the sexual harassment of women while they were in the shower by the man. The women complained, but apparently THEY were at fault and would have to leave…. Wonderful way to treat abused women, ain’t it? Let anyone who claims to be a female (regardless of the reality) in so they can be abused some more….

          This is “your side” Rev. The “right side of history” in your parlance.

          1. That is not my side, you bigoted rube.

            1. Uh-oh, Rev. Arthur L. Kirkland is a TERF.

    5. Oh, so “what aboutism” is now allowed? I thought the left had banned the use of that in political arguments?

  9. Even assuming your facts, we have ways to deal with frivolous lawsuits that don’t require we change our Constitutional jurisprudence for policy reasons.

    1. Who do you see asking for a change in constitutional jurisprudence?

      1. Applying Times v. Sullivan to create a new heretofore unknown constitutional right of arms dealers to sell weapons free of products liability would be a gigantic change in constitutional jurisprudence.

        1. In what way were the guns defective?

        2. I see Dilan Esper is a graduate of the Sarcastr0 school of reading comprehension. Take a deep breath, get your panties out of the twist they’re in, reread the post, then try again.

          1. I did. Times v. Sullivan is irrelevant unless there’s some constitutional right to engage in the trade of arms.

            1. Try again. Focus on the Sixth and Seventh paragraphs, as well as the conclusion.

              1. I read it several times. It’s not even a legal argument, really. It’s just an extremist piece of agitprop with some irrelevant citations.

                1. I would be embarrassed to admit that you read an article several times and still don’t understand it. It’s pretty clear. It’s not complicated.

                  So I ask, again, “[w]ho do you see asking for a change in constitutional jurisprudence?”

                  1. Saying that Sullivan has any relevance at all to the right to bear arms or the interpretation of an statute relating to the arms industry would be a massive change in constitutional law.

                    1. I rarely feel embarrassed for other people, but I’m starting to feel a little bit embarrassed for you.

                    2. See my comment above. I am an experienced appellate lawyer. You are some anonymous idiot on the Internet. You really don’t get this, do you?

                      Look, I can be wrong on something, but I’m generally not going to be wrong on basic issues of constitutional law. And I am telling you that extending Sullivan into an interpretative device requiring a broad construction of statutes relating to gun industry liability would be a major shift in constitutional law.

                      Now, if you want to prove me wrong, you are of course welcome to cite the cases that provide an actual precedent where Sullivan was invoked to protect arms dealers. But simply saying how embarrassed you are for me is meaningless. Why would I, with my accomplishments, care that some anonymous idiot on the Internet who doesn’t even seem to know the law is embarrassed for me?

                    3. “Brabantio: “You are a villain!”
                      Iago: “You are a senator!”

                    4. “See my comment above.”

                      See my response above. You aren’t helping your case.

                    5. “And I am telling you that extending Sullivan into an interpretative device requiring a broad construction of statutes relating to gun industry liability would be a major shift in constitutional law.”

                      For, hopefully, the last time, neither the blog post nor presumably the brief make this argument.

                      “Now, if you want to prove me wrong, you are of course welcome to cite the cases that provide an actual precedent where Sullivan was invoked to protect arms dealers.”

                      Again, not the argument being made. Until you can actually understand the argument being made, you can polish all of your participation trophies just as much as you want to. It won’t make your arguments any better.

                    6. jph, I understand the argument perfectly well.

                      You are not understanding that at the current time, the law is that New York Times v. Sullivan is irrelevant to the interpretation of statutes regulating the liability of arms dealing.

                      So holding that it is now a relevant consideration and requires a liberal construction of arms industry immunity would, in fact, be a serious expansion of New York Times v. Sullivan, i.e., a serious expansion of constitutional law.

                      Now what you need to do is get off the Internet, get out in the world, and learn things you don’t know.

                    7. “jph, I understand the argument perfectly well.”

                      No, you really don’t. Because this

                      “So holding that it is now a relevant consideration and requires a liberal construction of arms industry immunity would, in fact, be a serious expansion of New York Times v. Sullivan, i.e., a serious expansion of constitutional law.”

                      is not the argument being made.

                    8. Jph12, he’s gone from pounding the table to demanding we respect his authoritah!

                      At this point, I’m pretty sure there’s no honest debate to be had from this guy.

                    9. Precisely according to the renowned legal advice:

                      “If the facts are on your side, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the table.”

                    10. I am not saying anyone has to “respect my authority”.

                      I am saying that my authority makes it more likely that I am right, as opposed to anonymous internet commenters with plenty of snark but no legal citations.

                      And I am saying if you guys ever decided to take some time away from Internet arguments and actually learn the subject matter, you might be in a better position here.

                    11. “I am saying that my authority makes it more likely that I am right, as opposed to anonymous internet commenters with plenty of snark but no legal citations.”

                      Why does it matter who is more likely to be right when who is actually right is readily determined? And it’s not you, despite that Super Lawyer trophy sitting on your mantle.

                    12. If you providing legal citations, then your “lawyerly” interpretation of them might be better than some non-lawyer. Might.

                      But not only are you not providing legal citations, you are flat out lying about existing rulings and plain obvious historical facts. And your defense to criticism is that you are a lawyer? And calling people “anonymous idiots”? You’ve proven yourself quite the idiot as well, just one that claims to have a JD.

                      Well, congrats! You were one of 100,000 people the year you graduated to get one. Whoo-hoo! You’re one of 1.4 million people with practicing law! That, and a few years studying the history of the right to keep and bear arms, and you might stop being an idiot.

                      On this subject. You’ll still be an idiot on lots of other topics, but that will put you in even better company than being one of millions of people with JDs.

        3. Dilan, I don’t know how you could have misread the brief so badly. Nothing in the brief “applies” NY v Sullivan to this lawsuit.

          But of course NYT v. Sullivan created a new heretofore unknown constitutional right of newspapers to defame public officials free of defamation liability, and that was a gigantic change in constitutional jurisprudence, and that was a good idea.

          1. Of course it does, David. Either Sullivan is irrelevant, or Sullivan provides some reason why the arms industry immunity statute must be construed broadly.

            If the latter is true, it is, doctrinally, a new and grave expansion of Sullivan, as no court has held that Sullivan has any relevance whatsoever to whether states can hold arms manufacturers liable for their dangerous products.

            1. “as no court has held that Sullivan has any relevance whatsoever to whether states can hold arms manufacturers liable for their dangerous products.”

              And nothing in this blog post suggests that it does. Your continued inability to grasp the simple argument being made does not speak well for your abilities as a lawyer.

            2. Of course it does, David.

              Then you won’t have any trouble pointing to a single statement from the brief that makes such an argument. But you can’t, because it does not.

              Again: it is merely providing an analogy. At no point does the brief even hint that Sullivan applies to this case.

              1. DN, then let’s see the facts and law which do apply to this case, without reference to the analogy.

                1. The analogy is the point of this brief, so ignoring makes no sense. For the facts and the law you should look to the request for cert from the petitioner (and, of course, the opposition and reply). And possibly some of the other amici briefs.

        4. – “right of arms dealers to sell weapons free of products liability”

          Nobody is trying to create/discover any such right, nor does “products liability” have anything to do with this case. That said…

          “to create a new heretofore unknown constitutional right”

          So you think that Roe and Lawrence were cases of changing our Constitutional jurisprudence for policy reasons. OK.

          1. Both Roe and Lawrence were expansions into new territory. Doesn’t make them wrong or right, but they were definitely expansions.

            This is a particularly dumb expansion. We need to destroy all First Amendment analogies in Second Amendment jurisprudence. They are a dumb idea and bad legal reasoning.

            1. – “Doesn’t make them wrong or right, but they were definitely expansions.”

              So expansions are OK then? Make up what little is left of your mind.

              And I note you abandoned your “right of arms dealers to sell weapons free of products liability” bullshit.

      2. The OP is about a brief arguing for a change in the current 2A jurisprudence.

        1. Not according to the OP:
          “While the New York Times petitioners asked for a revolution in tort law to protect the First Amendment, the Remington petitioners are asking only for a faithful interpretation of a federal statute.”

          The Conn. Supreme Court is trying to invalidate a Federal statute with reasoning that should embarrass a twelve year old.

          1. This faithful interpretation is not in keeping with past precedent; hence the policy argument being made.

            1. “This faithful interpretation is not in keeping with past precedent; hence the policy argument being made.”

              Bullshit. As explained in the post, the policy argument is being made because the Connecticut Supreme Court’s decision is not in keeping with past precedent.

              1. No – the OP is conflating an is argument with an ought argument. This is how the Constitution ought to be, therefore this is what the policy ought to be.

                When you cite Sullivan but apply it to the Second Amendment, you’re not arguing with what the law is.

                1. You missed the part about the Protection of Lawful Commerce in Arms Act then?

                  1. I know what Post thinks ought to happen to it, and it’s not the same as what has happened.

                    1. A state court dismissing federal law for a decision that frankly is politically motivated at this juncture is what happened.

                      This isn’t about what ought to happen vs what has happened. This is about a state supreme court looking for a reversal from SCOTUS over a federal law which the state court decided to attempt to circumvent.

                      A reversal is quite likely considering there’s no evidence that the manufacturer did anything illegal. The lawsuit is frivolous on it’s face (which should have summarily been dismissed with prejudice) and if it succeeds it will allow a myriad of the same kinds of lawsuits against manufacturers for which specifically PLCAA was enacted.

                2. “No – the OP is conflating an is argument with an ought argument.”

                  No it isn’t.

                  “This is how the Constitution ought to be, therefore this is what the policy ought to be.”

                  No it isn’t. The post isn’t about the interpretation of the Constitution.

                  “When you cite Sullivan but apply it to the Second Amendment, you’re not arguing with what the law is.”

                  Why not? What about the cite to Sullivan constitutes a revolution in constitutional jurisprudence?

                3. Abuse of Process and Malicious Prosecution are hardly new concepts. And no one would question that these are “what the law is”.

                  I’ve only read portions of the brief so far, so can’t comment “authoritatively” on whether the analogy w/ the Sullivan *context* – not the Sullivan *holding* – is a reach or not. (And since it’s been some 52 or 53 years since I read and studied Sullivan, perhaps the holding, reasoning, or _obiter dictum_ in it demonstrates the reference is not a reach.)

                  In any event, the turf, on the issue of abusive litigation, has been well trod before. The brief doesn’t argue that Sullivan _per se_ is precedent for granting Cert but addresses its context, viz, pervasive litigation commenced for the purpose of restricting and damaging, perhaps destroying, businesses (there unfavorable newspaper reporting) rather than recovery of provable damages. Accordingly, Kopel asserts, “[e]ventually, this Court had to quell the lawsuit abuse, starting with Sullivan.” While I can’t assert the completeness or accuracy of the historical record asserted in Argument I. of the brief, it does seem, at least facially, persuasive.

                  Kopel then uses this historical context as the parallel reason for the enactment of the PLCAA and its enforcement here. Again, whether I would have used the same analogy, I don’t know. But I surely don’t see using it to be amiss nor breaking new Constitutional ground.

                  1. Smith, do you think analogies ought to decide cases, even if the facts and the law argued without the analogy cannot support the result?

                    1. Seriously, learn what an amici brief is. Please. Do us all a favor.

            2. And even if what you claim was true, I ask again, “[w]ho do you see asking for a change in constitutional jurisprudence?”

              1. Striking down this law because it’s being used for abusive-but-not-meeting-the-legal-definition-of-abusive based on kind of a dodgy historical narrative on a whole different Amendment and era is trodding some untrod soil there.

                1. Striking down what law? This post isn’t asking for any law to be struck down. It’s asking for a law to be enforced as written and intended.

                  Dismissing a lawsuit because it fails to state a claim is hardly untrod soil.

                2. – “Striking down this law”

                  Is there an adult in your household whom you could ask to explain this issue to you? You appear to be utterly and completely lost.

            3. First, the phrase “past precedent” is grating. All precedent is past.

              Second, yes, it is.

          2. “Not according to the OP:
            “While the New York Times petitioners asked for a revolution in tort law to protect the First Amendment, the Remington petitioners are asking only for a faithful interpretation of a federal statute.”

            The Conn. Supreme Court is trying to invalidate a Federal statute with reasoning that should embarrass a twelve year old.”

            Well, sure, for ordinary mortals bound by what people actually say. Sarcastr0 has never felt himself bound to respond to what people actually say.

            1. This ‘faithful interpretation’ would be new. Faithful to what Kopel wants is not faithful to what the law is.

              1. “This ‘faithful interpretation’ would be new.”

                It would? Many state have unfair business practices laws. Many states have had people shot with guns. Can you show other cases where unfair business practices laws were used, successfully, to sue gun manufactures?

                But even it is was a new interpretation of a statute, how would that be a change to Constitutional jurisprudence for policy reasons, your original claim?

                “Faithful to what Kopel wants is not faithful to what the law is.”

                That depends entirely on how the law is written.

              2. No, it would not be new. It is the Connecticut Supreme Court misapplying an existing federal law.

                Or, at least, that’s the argument that the appellants (and amici, in Kopel’s case) are making. They are not asking for anything “new.”

    2. We have ways of dealing with occasional frivolous lawsuits. We don’t have ways of dealing with systematic frivolous lawsuits carried out by people with deep pockets and the cooperation of government.

      Well, we do, actually, and this law is such a way.

  10. While the intent of NY Times v Sullivan may have been to respond to out of control libel suits, the end result has been a dumbing down of the news media. Under NY Times v. Sullivan, the dumber, and more ignorant of reality and facts the individual reporter may be, the more legal protection they have. Every other reasonable reporter may know that what is reported is false or should know it is false but, if one reporter is so stupid not to know it was wrong, then they are not libel.

    1. Is that correct? It’s been years (well, decades) since law school. But my vague recollection was that, under Sullivan, you could show Actual Malice by proving actual knowledge of falsity, or by showing that a reasonable reporter/publisher, in that person’s/company’s shoes, would have had reason to know of the falsity (ie, reckless disregard).

      Am I remembering incorrectly? (Certainly possible…I would not bet the farm on my memory for this legal issue.)

      1. You’re right on the law. However, Sullivan didn’t involve reporters. The defamatory material was in a paid advertisement, not something drafted by the Times reporters.

      2. A reasonableness standard will not satisfy actual malice. With a public figure plaintiff, reckless disregard for truth or falsity is not met by mere reason to know. And the standard of proof is clear and convincing evidence.

  11. I would like to see this same logic applied to the Internet. FOSTA and SESTA are plainly attempts to hold the hosts of Internet forums responsible for arguably-illegal speech by others that takes place there.

  12. The wisdom of the American approach to widespread citizen possession of arms was vindicated in World War II, when Hawaii and Maryland relied on volunteer citizens, bringing their own arms, for defense against enemy invaders or saboteurs.

    This statement is in the running as the most delusional statement made this month but Stewart Baker and David Bernstein still have ample time to still post this month.

    1. Glad that your most definitive statement is the final opinion on the subject.

    2. Yes, it’s wrong. Kopel should have ALSO included the armed volunteers in the Aleutian Islands as well, which were actually invaded by Japan and had to be reconquered by American and Canadian forces, and which volunteers went on many maritime scouting patrols which were of great help to the war effort, particularity as they were natives using a language the Japanese couldn’t understand.

      1. Might also include the thousands of privately owned rifles, donated and sent to the UK after Dunkirk. So the British Army and Home Guard had something other than sharp sticks to fight back if operation “Sea Lion” actually came to pass. https://www.guns.com/news/2016/01/22/a-marksmans-rifle-donated-for-war-sent-back-in-peace

        1. Which, according to accounts I’ve read, were mostly quietly destroyed, lest the British end up armed after the war.

    3. Not to mention minor incidents like this one:

      The Warsaw ghetto uprising: Armed Jews vs. Nazis

      Quotes:
      During World War II, 30,000 Jewish partisans fought in Eastern Europe, in their own combat units…. One of the most successful battles of the Jewish resistance was the Warsaw Ghetto Uprising. Nearly every Jew who participated was eventually killed — but they were going to be killed anyway… The Germans had to spend more time subduing the Warsaw Ghetto than they did conquering the entire nations of Poland or France.

      1. Kopel once did a post on the Warsaw Ghetto uprising. The anti-gun commentators here surmised it was a waste of time and inconsequential, despite the heroism of the resistance and the actual efforts the Nazis had to take (diverted from elsewhere in their war effort). Their point, that the Jews would have died anyway and that it made no difference in the end, and so we shouldn’t ever bother resisting governments with small arms because you always loose (the American Rev, the French Resistance, Vietnam, and Afghanistan as counter examples non-withstanding)

  13. Excellent brief.

    It shows how unethical and evil the anti-gun cult is.

    1. Do you refer to the 80 or 90 percent of Americans who support universal background checks.

      When the dam breaks against gun absolutists, I expect the inundation to resemble that observed with respect to gay marriage. Relatively swift, nearly comprehensive, and stunning to loud, confident absolutists who never saw it coming.

      1. Opinion polls find that most citizens support the idea of universal background checks in the abstract, until they find out what the details actually are.

        Poll from Bloomberg-Bankrolled School Misleads on Support for Gun Control

        Quote:
        In 2016, gun control supporters asked Maine voters to vote for Question 3, which would have required background checks on private firearm transfers. Mainers rejected the measure 52 to 48 percent.

        That same year, an unlawful ballot measure asked Nevadans to support the criminalization of private transfers. The poorly constructed measure barely passed; 50.45 – 49.55 percent.

        In 2014, Washington voters approved the deeply-flawed I-594, which imposed a background check requirement on even some of the most innocuous conduct involving firearms. More popular than the other initiatives, the measure still only passed 59-41 percent.

        In a piece for the New York Times titled, “Support for Gun Control Seems Strong. But It May Be Softer Than It Looks,” Margot Sanger-Katz discussed this divergence.

        The author noted that “While a wide range of gun control laws appear popular in polls, support may soften once details emerge and they’re subjected to a robust political debate.”

      2. “Universal Background Checks”….until they realize what the definition actually means.

        IE, “I’m out hunting with my brother. I give him my rifle, while hunting with him, and he gives me his, so we can check out each other’s guns. But I didn’t put him through a full government mandated background check before doing so. Now I’m a felon. And so is he.”

        Then they realize how it’s “defined” isn’t actually a good law.

        1. Much like they realize that banning “assault weapons” isn’t actually a good law once they realize that what separates an “assault weapon” and a “normal” rifle are collapsible stocks and bayonet lugs.

      3. You can call it what you want, but two men who sodomize each other and purchase children so they can play house are not in a marriage.

  14. Using NYT vs Sullivan seems to be an odd peg to hang your hat on.

    In that case, a govt official was trying to quell free speech – obviously a very concerning situation and one that was resolved appropriately.

    Remington v. Soto is a case between private entities.

    I don’t know if Remington will prevail on other issues, but using Sullivan sure doesn’t seem like a helpful argument.

    1. Sullivan was suing the NYT in his individual capacity, not his public capacity.

      Even if NYT v. Sullivan is not directly applicable, it’s progeny (particularly Curtis Publishing) makes it clear that the First Amendment concern arises when the dispute is between private parties who are not public officials.

      1. OK, had to look up Curtis and it clarified Sullivan by adding, “a public figure has the same standard of proof for libel as a public official does. . . .”

        That hardly expands Sullivan to private parties, as is the case here.

        1. Are you suggesting that Sarah Palin shouldn’t have to prove actual malice in her lawsuit against the New York Times? apedad, advocating for the counter-revolution.

        2. A “public figure” is a private party.

  15. I suspect the Connecticut Supreme Court may well have misinterpreted the statute. And although it’s an open question what exactly it covers in terms of actual court precedent, it’s definitely possible the 2nd Amendment covers the type of weapon involved.

    Nonetheless, I am generally opposed to the use of animosity-style arguments in constitutional jurisprudence, and I remain opposed here. It seems to me that proponents of gun control have a perfectly rational basis I for their position which would be dispositive but for the 2nd Amendment. And the holding that the 2nd Amendment right is individual and applicable to the states is quite recent. It seems to me that a single adverse court decision cannot turn a perfectly rationally motivated political argument into one supposedly based on nothing more than hate.

    In general animosity jurisprudence gives the most power to the most fanatical, those most willfully blind, those least able to see the possibility that their political opponents might have a rational position. I find that dangerously destabilizing to a republican form of government, which depends on political opponents having respect for and engaging in dialogue with those they disagree with.

    I point out, as I have before, that animosity arguments were introduced by John Calhoun in defense of slavery. Calhoun argues that abolitionists were nothing more than religious fanatics seeking to impose their will on others out of sheer picque and hate, seeking to advance superstition in the face of reason and science.

    I think his example illustrates just how incapable zealous advocates are of judging the merits of their opponents. And it illustrates why judges ought to have the mindset, and rhetoric, of neutral referees, not zealous advocates of causes.

    1. “It seems to me that proponents of gun control have a perfectly rational basis I for their position which would be dispositive but for the 2nd Amendment.”

      You are conflating proponents of gun control with the people who filed this lawsuit. It’s perfectly rational to view proponents of gun control as having a rational basis for their positions while at the same time denying that the people who filed this particular lawsuit do not.

    2. “I suspect the Connecticut Supreme Court may well have misinterpreted the statute. ”

      There’s not really any question that they misinterpreted it; This is exactly the sort of lawsuit the FOPA was enacted to stop, and they pretty much had to know it.

      1. I wish these leftist fairies would have the balls to come try to “go after resisters” themselves.

        1. To the Volokh Conspiracy:

          How is the work on policing the comments for civility (no use of “slack-jaw,” for example) going?

          Asking for Artie Ray, who was banned by the Volokh Conspiracy for making fun of conservatives (although he never called them “fairies” or suggested they should be gassed).

    3. Also animosity:

      Washington DC Mayor Muriel E. Bowser: A mayor who hates guns

      Quote:
      “You have a mayor who hates guns,” she said. “If it was up to me, we wouldn’t have any handguns in the District of Columbia.

    4. I point out, as I have before, that animosity arguments were introduced by John Calhoun in defense of slavery. Calhoun argues that abolitionists were nothing more than religious fanatics seeking to impose their will on others out of sheer picque and hate, seeking to advance superstition in the face of reason and science.

      And similar arguments were introduced by gay rights advocates in opposition to Amendment 2 — and that argument prevailed.

    5. Given that the founders were perfectly clear with respect to the 2nd Amendment, and given how the statistics with respect to gun control are so awful for the controllers, it is not rational nor reasonable to believe in the level of gun control these people push for.

  16. Could someone please direct me to this “militaristic” ad that purportedly set Adam Lanza off?

    1. Since his mother bought the gun, it’s unlikely Lanza ever saw it. But it’s also most likely that it is “militaristic” in the way that any gun is a weapon of war to the gun ban crowd.

    2. Since Adam Lanza murdered the legal Firearm Owner to steal the Firearm; this is a massive expansion of Liability Law. Same as a car manufacturer being liable for a car-jackers behavior behind the wheel of a stolen car.

  17. Freedom of press in 1A protects the press, freedom of religion in 1A protects religious organizations. But the underlying reason for these protections is to permit the people to freely read the press and freely attend churches and otherwise exercise their rights.

    The right to keep and bear arms should likewise protect manufacturers in order that the people can exercise their 2a rights. Without gun manufacturers, one cannot easily obtain arms or ammunition so, the people cannot get the arms they have a right to keep.

  18. Are there criminal penalities for intentionally frivolous lawsuits? This level of harassment by the government is persecution at best and economic terrorism at worst.

    1. There should be. Any any judge who ends up being reversed by the Supreme Court should be imprisoned.

      1. Imprisoned . . . not killed?

        Did the Volokh Conspiracy tell you to tone it down? And you are complying?

        1. Killed is a bit extreme, although I wouldn’t shed any tears if a Pinochet type rose to power and got revenge against leftist judges like Reinhardt.

  19. It’s odd how many of you here missed that the Sullivan decision was an analogy in attempting to bankrupt a company through frivolous litigation, not the basis for dismissal of the lawsuit.

    The basis for dismissal of the lawsuit is the Protection of Lawful Commerce in Arms Act. Some of you have seriously biased reading comprehension.

    1. I would tend to agree. Your distinction (as I above independently indicated in a reply to Sarcasto) is correct.

      I suppose that the reference to Sullivan was a Red Flag, and disrupted analysis of the balance of the post. Of course, downloading and reading (or at least scanning) the brief would have corrected this misapprehension.

  20. The left really wants a civil war.

  21. You are never-ending entertainment, like rubber-necking a highway auto accident.
    What are your views on riparian rights?
    Need a shower after reading one of your “comments”. C’mon man, my water bills are soaring.

  22. The Connecticut Supreme Court decision only states, ” he took the firearm from the Home…” Kind of covering up that little murder thing of his own Mother so he could ‘take’ it.

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