Firearms Litigation: Liability, Regulation, and the Constitution

Free CLE program on Dec. 1

On Tuesday, December 1, there is free four-hour continuing legal education program on "Firearms Litigation: Liability, Regulation, and the Constitution." The program is co-sponsored by the Center on Civil Justice at NYU School of Law, the Duke Center for Firearms Law, and the Solomon Center for Health Law and Policy at Yale Law School. It will run from 1 to 5 p.m., Eastern Time. Free registration is available here. The event will be transmitted via Zoom.

Panel 1 is "Liability Litigation: Products, Preemption, and the PLCAA." The Protection of Lawful Commerce in Arms Act (PLCAA) is a 2005 federal statute that bans many tort lawsuits against firearms manufacturers and retailers. The PLCAA does not restrict lawsuits about firearms that are actually defective--for example, a handgun that fires when it is accidentally dropped.

As my 2016 post describes, the federal statute, like 34 prior state statutes, resulted from numerous lawsuits organized by gun control groups and certain government officials (including Andrew Cuomo). The coordinated suits aimed to present the firearms business with a stark choice: 1. Cede control of the industry to a supervisory committee run by anti-gun advocates; 2. Be bankrupted by litigation costs from many simultaneous cases in different courts.

The PLCAA regulations on lawsuits include what is called the "predicate exception." A business can be sued if it "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."

Panel 1 will mainly examine the "predicate exception." The discussion is timely. In 2019, the U.S. Supreme Court denied cert. for a 4-3 Connecticut Supreme Court decision in Remington v. Soto. The Connecticut majority held that Connecticut's general statute against Unfair Trade Practices had been violated because Remington's advertising was too militaristic in tone. Further, the statute against bad advertising in general qualified for the predicate exception. This post describes the amicus brieff I filed in support of the cert. petition; the brief addresses First Amendment doctrine and history, and was on behalf of, inter alia, VC writers Eugene Volokh and Randy Barnett.

Panel 1 will be moderated by Abbe Gluck (Yale). The panelists are Mark Lanier (Lanier Law Firm), Alla Lefkowitz (Everytown), Timothy Lytton (Georgia State), and William Tong (Connecticut Attorney General). None of them would exactly be called a PLCAA supporter.

Panel 2 is Constitutional Litigation. This panel will be wide-ranging. The moderator is Adam Skaggs (Giffords). In addition to me, panelists will be:

Joseph Blocher (Duke). His remarks may include his recent article Why Regulate Guns? The article suggests that in the gun control debate, non-owners' "fundamental freedoms—to travel, to speak, to learn, to pray, and to vote without fear or intimidation—are at stake."

Bob Cottrol (George Washington). He will discuss the similarities of Second Amendment litigation today with litigation on the Fourteenth and Fifteenth Amendments in the early twentieth century. Cottrol is co-author of The Second Amendment: Toward an Afro-Americanist Reconsideration, cited by Justice Thomas in his concurrences in Printz v. United States and McDonald v. City of Chicago.

Mary Anne Franks (Miami). She will discuss constitutional firearms litigation as a manifestation of fragility. Franks is author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.

Deepak Gupta (Gupta Wessler). The well-known appellate advocate, who often represents Everytown, will discuss some of his recent litigation.

David Kopel (U. of Denver, Independence Inst., Cato Inst.). I too will talk about some of my cases. Additionally, I will present some history Second Amendment litigation, as described in my article Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer.

Panel 3: The Future of Litigation Strategies

Moderated by Darrell Miller (Duke), this panel examines litigation strategy and practice, as well as statutory reforms affecting litigation--perhaps including the long-running effort to get rid of PLCAA or eviscerate it.

Panelists are Hannah Shearer (Giffords, Litigation Director), Christopher Boehning (Paul Weiss, brief writer in some recent leading cases), Evan Chesler (Chairman of Cravath), Troy McKenzie (NYU), and Erin Murphy (Kirkland & Ellis, Second Amendment litigator since 2015, often representing the NRA).

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The PLCAA has always confused me.

A. Why is it even legal in the first place to be sued so frivolously and so often, with no repercussions on the plaintiffs? Is this because judges are afraid to award costs? Is that just not done, old boy?

B. Why not pass a general purpose law protecting all manufacturers / distributors / merchants / people / everybody from such frivolous lawsuits? One of my pet gripes about laws is how repetitive they get, with as many different words for theft as possible, for instance, or assault, or any number of crimes.

C. To get right down to it, what is the objection to making losers pay for the winners costs? What kind of morality says it is ok to bring suit for trivial reasons and not have to pay a dime for your victim's expenses?

[Brett Bellmore]

1) The courts are extremely reluctant to sanction frivolous lawsuits brought by actual lawyers. They're twice as reluctant to sanction them if brought in a "good cause".

2) Because it hadn't, historically, been a big problem for other industries. But I agree.

3) See #1

[Rossami]

The evidence is clear that courts are extremely reluctant to sanction frivolous lawsuits but ABC's question was why are they so reluctant. Are they just lazy? don't care? good ol' boy network? some specific precedent? corruption?

[Brett Bellmore]

Judges are members of the lawyer guild, and loath to deny any lawyer a paying job, even if that job is frivolous. Good ol' boy network.

[Krayt]

Legislatures work very hard to make sure there's plenty to sue over. Why threaten that and the donation feedback loop?

[Krychek_2]

Truly frivolous lawsuits do get sanctioned far more often than you might think, but there is some reluctance because of the American value that everybody gets their day in court. And ideology has little to do with it.

My question, on the other side, is why gun manufacturers should be shielded from behavior that would get any other manufacturer bankrupted.

[Kevin Smith]

What specific behavior are you referring to?

[Krychek_2]

Well, let's use an example of something else that, like guns, has multiple legitimate uses but is also potentially lethal: Dangerous chemicals. Few would say that dangerous chemicals should be banned outright -- they do have legitimate uses -- but any manufacturer of chlorine gas who allowed anyone to wander in off the street and buy enough to wipe out an entire city block of people would be sued into bankruptcy, if not criminally prosecuted, if the buyer did in fact then use it to wipe out an entire city block of people. Opium manufacturers (and opiates also have legitimate uses) are currently the defendants in multi-billion dollar lawsuits over allowing their product to spread death and destruction.

The Second Amendment means that the government cannot prevent you from owning a firearm. It does not mean that gun manufacturers should be excused from generally applicable tort law. It is entirely foreseeable that guns will kill tens of thousands of Americans in any given year. To dump them on the market, with no attention paid to whether the people buying them have been properly trained in safety, have agreed to comply with safety protocols to keep their product out of the hands of people who will misuse it, and to otherwise take such steps as could be taken to reduce the likelihood of death from their product, would not be tolerated for any product except guns.

[Brett Bellmore]

But, suppose that I met the criteria for buying chlorine, and lawfully bought it. Then, without having shown any indication of intention to the seller, decided to launch a chlorine gas attack on a mall.

Could I normally sue the company manufacturing it? No, I could not. This isn't even a near thing. The user is responsible for the use of the product, so long as the manufacturer takes the legally required care.

And if the manufacturer sells through licensed distributors, they're doubly insulated from liability.

So, no, you're actually wrong about this law giving gun manufacturers unusual protection. It merely restored their legal rights to where they'd been before anti-gun groups got the clever idea of bankrupting them with legal costs.

[Krychek_2]

Ah, but the difference is that chlorine manufacturers actually have standards for whom they will sell to. Unlike gun manufacturers and distributors, where if you have a pulse and no criminal record, you can get enough firepower to take out a mall.

[Brett Bellmore]

"Unlike gun manufacturers and distributors, where if you have a pulse and no criminal record, you can get enough firepower to take out a mall."

You actually believe that? How in the world did you get such a bizarre idea?

Typically firearms manufacturers don't do direct sales to the public at all. AT ALL. They sell to people and businesses with federal firearms dealer licenses.

That step alone would, for any ordinary product, extinguish the manufacturer's liability for end use. Even if Joe's car lot on the motor mile sells a GM car to a guy who says up front that he intends to use it to run people over, GM isn't on the line, just Joe. If the guy doesn't tell Joe that, Joe isn't liable, either.

In cases where a manufacturer might have its own storefront, it operates as the FFL, and can only sell pursuant to state and federal law. Which is quite a bit more stringent than, "Is he breathing, and does the check clear?"

Even if we got rid of the FFL nonsense, and background checks, manufactures are not liable for misuse of a product which has lawful uses, unless they have some particularized reason to believe a specific sale is for illegal uses. "We know as a general matter 2% of our bleach is used by meth labs" doesn't even begin to get you to liablity.

[Kazinski]

"Unlike gun manufacturers and distributors, where if you have a pulse and no criminal record, you can get enough firepower to take out a mall."

Which is a right protected by the 2nd amendment.

Which is of course is the whole game. You don't like the 2nd amendment, you don't have the political power to change the constitution, so you want to infringe the right to keep and bear arms by bankrupting the gun manufacturers and gun stores.

[Krychek_2]

Kazinski, the Second Amendment means that the government can't stop you from owning a gun. It doesn't mean that it might not be negligent for a gun distributor to sell you a gun. Just as it might be negligent to give car keys to someone who is falling down drunk, even if he has a driver's license that allows him to drive.

And no, I don't want to shut down the gun industry. I want the gun industry to be responsible citizens, which means taking basic, obvious steps to limit the damage done by their products. Simply put, they should be held to the same negligence standards as everyone else. For purposes of tort law, guns aren't special.

[Brett Bellmore]

"It doesn’t mean that it might not be negligent for a gun distributor to sell you a gun. Just as it might be negligent to give car keys to someone who is falling down drunk, even if he has a driver’s license that allows him to drive."

But that's not the sort of negligence the law in question prevents suing over. If you walk into a firearms store, and the clerk sells you a gun without bothering to run the NICS check on you, and you go on to kill somebody with it, their heirs absolutely can sue the store.

But they can't sue the manufacturer!

And this IS exactly how liability is handled for other products. If I walk into a liquor store totally blitzed, and they sell me a fifth of Jim Beam and watch as I walk out to my car and back over somebody in the parking lot, that somebody might be able to sue the liquor store.

But they can't sue Jim Beam!

If my neighbor walks into an industrial supply outlet paging through a copy of the Anarchist's Cookbook, and says, "I'll need a jug of Nitric acid, a liter of sulfuric acid, and, oh, yeah, it says I'll need some glycerine, too. You got that?" And then blows up his basement, his widow might be able to sue the industrial supply outlet.

But she can't sue BASF!

The lawsuits the Lawful Commerce act was passed to prevent are, "Somebody lawfully manufactures a gun, and sells it to a distributor. Distributor lawfully sells the gun to a private citizen. Citizen's gun is stolen, and used in a murder. Sue the manufacturer for negligence, they knew some fraction of the guns would be stolen!"

They're nothing like normal negligence lawsuits.

And the people organizing the lawsuits were quite open about their intention being to bankrupt the gun manufacturers with legal costs even if every lawsuit lost. The goal was to impose ruinous litigation expenses, not win the lawsuits!

[Krychek_2]

And, negligence is something that should be decided by a jury. The gun manufacturers are welcome to make whatever jury arguments they like, but whether a manufacturer or distributor was negligent should be for the jury to decide, not the legislature.

[Brett Bellmore]

Except that, again, the express goal of the lawsuits wasn't prevailing in court, it was imposing ruinous litigation expenses even if every lawsuit lost. They were quite open about that, that the firearms industry was fairly small, and the states funding the litigation had very deep pockets. For instance:

Lawsuits Lead Gun Maker To File for Bankruptcy

"More cities are expected to file suit soon, and lawyers familiar with the issue say New York is close to becoming the first state to do so. ''If New York comes into this, and there are more suits, at some point soon a critical mass will be reached where the costs alone of defending these suits are going to eat up the gun companies,'' said John Coale, a lawyer in Washington who is representing New Orleans and several other cities that have sued.

Mr. Coale, one of the Castano Group of lawyers who were active in suing the tobacco industry -- the group is named for a friend of several of them who died of a tobacco-related disease -- estimated that the cigarette companies had spent $600 million a year defending themselves against the states. ''The gun companies simply can't afford it,'' he said, since they are so much smaller and sales of guns have been flat or declining for a decade."

[Krychek_2]

But Brett, that's an argument for shutting down tort law in its entirety, not just as to the gun industry.

And since, I assume, you're not inclined to shut down tort law in its entirety, why should the gun industry have special rights not afforded to any other industry?

[Absaroka]

"But Brett, that’s an argument for shutting down tort law in its entirety, not just as to the gun industry.

And since, I assume, you’re not inclined to shut down tort law in its entirety, why should the gun industry have special rights not afforded to any other industry?"

Q: Why have special laws about protesting outside abortion clinics but not gas stations?

A: Because there isn't a pattern of people trying to shut down gas stations by obnoxiously picketing them.

Q: Why hasn't congress given special liability protection to the liquor industry?

A: Because well funded teetotalers aren't credibly threatening to bankrupt the liquor industry with meritless lawsuits, so voters aren't demanding that their congresscritters fix the problem of lawfare against distilleries.

[Brett Bellmore]

No, Krycheck, it's an argument for not permitting lawsuits premised on novel theories of indirect negligence for the express purpose of bankrupting an industry with litigation costs.

And why the gun industry? Because, as Absaroka says, you don't see anybody suing HP over an HP printer being used to print an extortion note, or Bic being sued because a forger used one of their pens to sign somebody else's name.

[Absaroka]

" It is entirely foreseeable that guns will kill tens of thousands of Americans in any given year. To dump them on the market, with no attention paid to whether the people buying them have been properly trained in safety, have agreed to comply with safety protocols to keep their product out of the hands of people who will misuse it, and to otherwise take such steps as could be taken to reduce the likelihood of death from their product, would not be tolerated for any product except guns."

Cars kill tens of thousands[1] every year, but the last time I bought one the dealership wasn't interested at all in whether I was a safe driver. I could have been on parole for multiple vehicular homicides for all they cared. And this was for a high powered assault vehicle (twin turbos!). Ditto in spades for private sellers, which is legal for cars in my[2] state, in contrast with guns. So I think your last clause is incorrect.

If there was a well funded campaign to bankrupt the auto industry by meritless suits against car dealers and manufacturers every time some drunk driver killed someone then we'd have a PLCAutoA in addition to a PLCArmsA.

[1]Cars, of course, don't kill anyone, any more than guns do. Drivers kill people.
[2]Are there any states where private sales of vehicles, sans a background check, aren't allowed?

[Krychek_2]

Absaroka, if you were on parole for multiple vehicular homicides and the dealership sold you a car, I'll bet you anything they would have been a defendant in a lawsuit had you then gone out and killed someone.

[Kazinski]

Wrong.

An auto dealership does require a valid driver's license. They do not, nor are they required to do a background check, although they likely do a credit check for their own purposes.

Just like gun stores the defer to the governmental authorities, if a person is licenced to drive they will sell them a car, not make their own determination.

[Krychek_2]

Kazinski, what the law minimally requires, and what a reasonable person would do under the circumstances, are not always the same thing. "There's no law actually requiring me to do X" is not generally a tort defense.

And what it would come down to would be a question of fact for the jury: Would a reasonably prudent person in the circumstances at least made the effort to discover that Absaroka is on probation for multiple vehicular homicides.

Now, since it's a question of fact for a jury, I can't tell you what the answer will be in any given case. I will tell you that if I were representing that dealership, I would lean hard on their insurance company to settle the case.

[David Nieporent]

Now, since it’s a question of fact for a jury, I can’t tell you what the answer will be in any given case. I will tell you that if I were representing that dealership, I would lean hard on their insurance company to settle the case.

Well, then, by your lights every car dealership in America is operating negligently, because none of them in fact do DMV records checks before selling cars.

[Absaroka]

Can you cite any example of someone - dealer or private seller - being sued because the buyer had a history of bad driving and the seller didn't do a background check? Or to put it more in line with the abuses that led to the PLCAA, a seller being sued after they conducted a background check that came back clean?

[Dr. Ed 2]

The sale of Chlorine gas is highly regulated.

[Brett Bellmore]

Let's face it, Krychek_2 just so wants this law out of the way, that he's not willing to confront that it really does NOT prohibit anything other industries have to worry about.

[Brett Bellmore]

The answer is, they're not.

[Kevin Smith]

Regarding C, gun control lobby groups will rarely sue directly, they have some middle or working class parent sue, and simply represent them pro bono.

That way, if the losers have to pay the winners cost, it would be some poor family that can't actually afford it.

It basically sets up a win-win-win for the gun control lobby.

If they win the case, they win (obviously)
If they lose the case, and the court doesn't award costs, the gun manufacturer loses money.
If the court does award costs, they get a big PR boost because the evil gun makers are bankrupting working class families even after killing their kids

[Brett Bellmore]

I've always favored loser's lawyer pays, not loser pays, for that reason.

I mean, who's supposed to be the one in the room who can recognize a frivolous case? The client, or the attorney?

[David Nieporent]

"Loser pays" has nothing to do with suits being frivolous. If the issue is sanctions for filing a frivolous suit, then the lawyer generally is on the hook. But loser pays is a regime where, well, the loser pays regardless of whether the case has merit.

[Brett Bellmore]

There are different versions. We're not all talking about the same cantonical version of "loser pays".

"If the issue is sanctions for filing a frivolous suit, then the lawyer generally is on the hook."

Which is why judges only very rarely admit that a lawsuit is frivolous.

[David Nieporent]

There are different versions. We’re not all talking about the same cantonical version of “loser pays”.

"When I said that the primary language in Paris is English, I wasn't wrong because I was talking about Paris, Kentucky." No, there aren't "different versions." Sanctions for filing frivolous suits is not loser pays. (If it were, then we'd have loser pays now, but we don't.)

Which is why judges only very rarely admit that a lawsuit is frivolous.

No, that's not why. It's because we have a common law system.

[Kazinski]

"Joseph Blocher (Duke). His remarks may include his recent article Why Regulate Guns? The article suggests that in the gun control debate, non-owners' "fundamental freedoms—to travel, to speak, to learn, to pray, and to vote without fear or intimidation—are at stake."

This seems suspiciously like someone complaining about a lecture on campus because someone's opinions make them feel "unsafe" But the stats show that legal gun owners are very safe, and if Blocher feels unsafe that his neighbors want to exercise their rights to own and carry guns then he can lock himself in his closet for as long as he likes.

[Queen Amalthea]

There's a bit of a potential gulf between an opinion and a deadly weapon intimidating someone. It's strange to argue that firearms strike fear into crooks but shouldn't be intimidating at all to the law abiding.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

"It’s strange to argue that firearms strike fear into crooks but shouldn’t be intimidating at all to the law abiding."

I don't think anyone is arguing that. Guns are inanimate objects. Crooks should fear good guys with guns, not guns, which they may well have themselves.

[Queen Amalthea]

The thing is, you don't know who are the good and bad guys right away in social mixing. If someone has a gun (or a knife or a bat or a pit bull) it's quite natural to be a bit intimidated until you are set at ease.

[Rossami]

It's also "quite natural" to be intimidated by men who happen to be big and black. Yet that is not considered a rational (or legal) basis for restricting the behavior of law-abiding black men no matter how large. Your fears are not a legitimate basis for restricting other people's rights.

[Queen Amalthea]

I didn't say that fears are legitimate basis for restricting gun rights, only that the fears are not so irrational. Interesting you made that jump, however.

[Kevin Smith]

Except that's almost always the next step, isn't it? Blocher (whom Kazinski quoted in his initial comment you responded to) is making that exact claim. It is also being done with knives and pitbulls in many jurisdictions, again using the very same line of reasoning

[Krayt]

Given the gun statistics, bad guys might fear other bad guys with guns more than good guys.

[Brett Bellmore]

Most firearms are owned by law abiding citizens, who will never use them for criminal purposes, but might end up using them to shoot criminals preying upon them. So there's no particular reason for the law abiding to be fearful of guns owned by the law abiding.

Of a lawfully owned gun, and a lawfully owned car, the latter is much more likely to kill or injure somebody; Almost all wrongful uses of guns are by career criminals.

People like Blocher like to think their phobias entitle them to dictate whether other people get to exercise their civil liberties. Well, phobias are an indication of irrationality, so that's not surprising.

[Queen Amalthea]

Most butcher knives are owned by lawfully abiding people, but if I went to my kid's soccer game and someone was walking around with butcher knife in his belt, yea, I could see people being intimated by that. That's not a phobia.

I mean, as a gun owner, a major use of a gun is to send the message sometimes 'I have a deadly weapon on me/in my home, so consider this.'

[Brett Bellmore]

See, I'm over 60, and grew up in a rural area. We even had a dangerous wild dog pack in the area for a while. I'm probably a lot more used to seeing people walking around packing heat than you are.

It really doesn't bother me unless I see some reason to suppose the person carrying the gun is otherwise a threat.

But the key point here is that the constitutional right is both to keep, and to bear, and somebody's phobia can't be a basis for restricting someone else's exercise of a civil right.

[Queen Amalthea]

I'm over 50 and grew up in a rural area. I'm familiar with guns since I can remember. And I think you're being silly. I mean, really, if you had a knock on your door and saw a complete stranger in front, but then had another knock and saw another stranger with a 90 pound pit bull on his leash on your porch, you are going to be a bit more concerned/intimidated by the latter. This is just human nature.

I'm a fan of guns. It's silly for gun rights supporters to act both like they are powerful things and message senders (to bad guys, bad governments, etc.,) and yet everyone else should see them as so benign.

[Brett Bellmore]

What I think is that a fair number of people have an exaggerated fear of guns. I'm cautious about people backing up in parking lots, too. Came very close to being run over that way, once. But I'm not phobic about them.

I think that a combination of unfavorable media portrayals and success at driving lawful gun use out of public view has created that phobia, and some desensitization therapy is in order.

I also think some anti-gun activists dramatically exaggerate how scared they are, to try for the power of victimhood.

[Kazinski]

My daughter used to be a chef, and expected to bring with her to work, and she often walked or rode the bus carrying her butcher's knives to work. Which is bizzarly illegal in Seattle.

[Brett Bellmore]

Yeah, my sister was a chef, too. I inherited a nice knife case from her, full of very nice knives. You probably wouldn't have known what was in it, though, if you saw her boarding the bus with it.

[Dan Schiavetta]

Fortunately in these days of virus and Zoom you don’t have to face the irony of those metal detectors on the way to the lecture hall.

In fact, gun rights fare better in the virtual world. They work best in cop movies.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I suppose. Guns are used 2 million times a year to deter bad guys. Movies with guns used safely are seen far more often.

Pretty silly argument, but whatever floats your boat.

[Krychek_2]

I would like to see a citation for the claim that guns are used 2 million times a year to deter bad guys.

[Brett Bellmore]

There are surveys to that effect, but they count brandishing as "use". They're not shot 2 million times a year to deter bad guys.

[susancol]

A quick google "defensive gun uses" leads one to a large Wiki that provides citations to the seminal studies.

A commonly cited 1995 study by Kleck and Gertz estimated that between 2.1 and 2.5 million DGUs occur in the United States each year.[1]:64–65[7][10] After Kleck and Gertz accounted for telescoping, their estimate was reduced to 2.1 million DGU per year.[7] Kleck and Gertz conducted this survey in 1992, and Kleck began publicizing the 2.5 million DGU per year estimate in 1993.[11] By 1997, the 2.5 million per year number from Kleck & Gertz' study had been cited as fact by news articles, editorial writers, and the Congressional Research Service.[12] Besides the NSDS and NCVS surveys, ten national and three state surveys summarized by Kleck and Gertz gave 764 thousand to 3.6 million DGU per year.[7] ... Marvin Wolfgang, who was acknowledged in 1994 by the British Journal of Criminology as ″the most influential criminologist in the English-speaking world″,[17] commented on Kleck's research concerning defensive gun use: "I am as strong a gun-control advocate as can be found among the criminologists in this country. [...] The Kleck and Gertz study impresses me for the caution the authors exercise and the elaborate nuances they examine methodologically. I do not like their conclusions that having a gun can be useful, but I cannot fault their methodology. They have tried earnestly to meet all objections in advance and have done exceedingly well."[18]

[rsteinmetz]

Except in Louisiana (and possibly elsewhere) where at least 2 children have been punished for having BB or Nerf guns in view in a virtual classroom.

[Brett Bellmore]

Sounds like several of the panels are pretty heavily stacked. I doubt it was for lack of ability to find anyone who'd represent the pro-gun side, so it must have been intentional.

At least they weren't all totally stacked, a few reasonable people snuck in.

[Queen Amalthea]

Several? There are only three total, right? And it's hard to argue that, say, panel 2 is 'stacked' against gun rights.

[Brett Bellmore]

Panel 1: Anti-gun moderator and 4 anti-gun participants.

Panel 2: Anti-gun moderator and 5 participants, 2 of whom are not identified anti-gunners. (Kopel and Cottrel.) I'd say this isn't terribly stacked, though it depends on how impartial the moderator is.

Panel 3: Anti-gun moderator and 5 participants, only one of which is known to be pro-gun. 3 are easily identified as anti-gun, I can't tell about Chesler. Stacked.

But, fine, 2 isn't technically "several".

[Queen Amalthea]

"Cottrol is co-author of The Second Amendment: Toward an Afro-Americanist Reconsideration, cited by Justice Thomas in his concurrences in Printz v. United States and McDonald v. City of Chicago."

You don't think his work can be classified as pro gun? That would make 3-2 pro gun ('stacked' that way?), right?

[Brett Bellmore]

Cottrol is pro-gun, like Kopel. (I've got their books on gun control in my library.) Panel 2 is 3-2, 4-2 if you count the moderator, with Kopel and Cottrel as the 2.

The moderator and the other 3 panel participants on that panel can easily be confirmed to be anti-gun by a quick look at their writings on the topic. Which of the other 3 did you think were pro-gun?

The only participant I wasn't able to classify was Chesler. All the moderators and all but 3 of the participants, except for him, have a history of anti-gun writings.

[Caphon]

Came in a little late on first panel. I was chuckling at the moderator's wrap up comment praising the diversity of opinion - every panelist was opposed to PLCAA, the only "diversity" was Tim's pessimism vs everyone else's optimism regarding the odds of circumventing PLCAA.

Second panel was good, though I wish it were longer. Hope you're feeling okay, David - noticed you had a cough. Mary Anne Franks had an interesting line of thinking - even though I think it's 97% nonsensical I was pleased to hear her perspective. Her and Joseph's interpretation of the Cuomo case also struck me as disingenuous.

Third panel is in progress, but Erin looks vaguely unimpressed by the conversation so far. Much of this conversation and the PLCAA panel sounded like planning sessions for how to storm the walls of 2A. Again, interesting to be a fly on the wall.

[Caphon]

Revision: I think the third panel has been the most "meaty" or at least educational for me. Good discussion.

[Brett Bellmore]

Any issues with the moderation on the 2nd and 3rd panels? What with the moderators being anti-gunners in every panel?

[MaverickNH]

Presumably gun control advocacy organizations will look to raise $$$millions from grassroots donors - the 80%+ who favor stricter gun policies - to fund litigation against gun manufacturers and sellers. Or maybe just $$$millions from Bloomberg. He has plenty left after his miserably failed Presidential bid.

Such lawsuits have a certain Forbidden Fruit attraction, I’m sure, even to those without any motivations for gun control. Getting paid to do what you love, win or lose - what’s not to like?

[Brett Bellmore]

Krychek, I suggest you review this post by Kopel. It goes into considerable detail about the history of this law, why it was enacted, and what it actually does.

The Protection of Lawful Commerce in Arms Act: Facts and policy

Here's a sample:

"Analogous laws for other industries: Although opponents of the PLCAA assert that its protections are unique, legislatures often enact industry-specific legislation to address problems caused by tort litigation against that industry. For example, a federal statute prohibits all tort lawsuits against vaccine manufacturers. Likewise, a Colorado statute prohibits lawsuits against ski areas for dangers that are inherent in skiing (e.g., hitting a tree). To the extent that prohibition groups misuse the tort system against any industry—especially one that provides products necessary to exercise a constitutional right—legislative intervention is sometimes necessary."