After mass shootings in Texas and Ohio earlier this month, public pressure to reform gun laws has been largely focused on Congress and the President. However, the Supreme Court appears poised to address two significant Second Amendment issues for the first time in a decade.
Petition Stage: Sandy Hook Victims
No. 19-168; Remington Arms v. Soto.
On August 1st – two days before the El Paso, Texas shooting – gun-maker Remington asked the Court to overturn a Connecticut Supreme Court decision which gave Sandy Hook families the ability to sue the company over the way it advertised its products.
The lower court’s 4-3 decision revolved around a “predicate exception” to the 2005 Protection of Lawful Commerce in Arms Act, which otherwise preempts lawsuits against firearm manufacturers resulting from the criminal use of their products. The exception allows lawsuits to proceed for victims of gun violence – like Sandy Hook families – where the manufacturer knowingly violated state or federal law applicable to the marketing of products.
Sandy Hook families successfully argued that Remington lost its immunity by advertising products in a manner that could promote mass shootings, such as its slogan, “Forces of opposition, bow down. You are single-handedly outnumbered.”
Here’s how the Connecticut Supreme Court described the families’ lawsuits:
They allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S rifle for civilians to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior.
If the Supreme Court grants certiorari, and then overturns the Connecticut Supreme Court’s ruling, similar state lawsuits against gun makers will be barred nationwide. But if the Court denies certiorari, leaving the state court’s ruling in place, lawsuits will likely be filed in a large number of cases––from the Las Vegas shooting to the El Paso and Dayton shootings.
The Court is expected to issue its decision on certiorari in early October.
Merits Stage: New York City Carry Limits
No. 18-280; New York State Rifle and Pistol Association v. City of New York.
New York City law, like that of many cities across the country, prohibits residents from possessing a handgun without a license. The only license the city makes available to its residents allows holders to possess a handgun in two locales: 1) in his or her home, or 2) en route to a shooting range within city limits. Effectively, the city has banned the transportation of handguns to any other place outside city limits.
The Petitioners, a local riffle association and three firearm owners, argue that the restriction violates the Second Amendment. The question the Court appears poised to address: Does the Second Amendment right to keep and bear arms apply outside of the home?
Gun rights advocates have pressed the Court for years to take up a new Second Amendment case. The Court hasn’t heard a gun case since it reversed a Chicago handgun ban in 2010. Justice Thomas has repeatedly criticized the Court’s refusal to hear such cases following narrow denials of certiorari recently, arguing that the Second Amendment has been relegated to a second-class right.
This case may well demonstrate the impact of Justice Kavanaugh, whose record suggests he will be an enforcer of Second Amendment rights. Look for the Court to issue an opinion on the merits next summer.