JURIST Guest Columnist Eric Ruben of the Brennan Center for Justice at the New York University School of Law responds to a recent JURIST article about the Second Amendment and firearm industry immunity….

Eight years after the Supreme Court struck down a handgun ban in District of Columbia v. Heller, Second Amendment law has not developed the way gun advocates hoped. They expected that popularly enacted gun laws would fall like dominoes. But lower courts for the most part have repeatedly upheld restrictions that stopped short of handgun bans, consistent with Heller’s careful signal that the opinion left plenty of room for reasonable regulations. That result is deeply dissatisfying to the advocates, who have resorted to a tired attack on the courts for what the National Rifle Association called a “pervasive pattern of stubborn resistance.” Given that the Supreme Court has had over 60 opportunities to correct lower court rulings in Second Amendment cases, but has chosen to do so only once, this critique is increasingly strained.

In an attempt to show just how rebellious judges have been, historian Joyce Lee Malcolm opens a new line of attack in her recent JURIST commentary. Malcolm asserts that the “disturbing pattern” of “nullification” is seen not only in Second Amendment cases, but also in a case brought against a gun manufacturer by the families of the children shot and killed at Sandy Hook:

The decision of Connecticut judge Barbara Bellis to ignore federal law by permitting gun manufacturers to be sued for criminal use of a gun is part of a disturbing pattern. The affirmation of a Second Amendment right of individuals to be armed seems to be provoking otherwise sober-minded judges to nullify U.S. Supreme Court decisions and now federal law.

This novel allegation is both baseless and misleading about just how obstructive the federal immunity statute has been. Far from ignoring industry immunity, courts have applied it repeatedly, giving the firearm industry a free pass no other business enjoys, let alone one that manufactures a lethal product like the assault rifle used to spray 154 bullets in under five minutes in Newtown, Connecticut.

If the Sandy Hook defendant did not sell guns, the parents of the slain children would be entitled to make a case. If the case lacked merit under ordinary liability principles, they would lose; otherwise, they would win. But as Malcolm concedes, firearm manufacturers are different—industry lobbyists in 2005 secured immunity from liability at the expense of gun victims in a federal statute called the Protection of Lawful Commerce in Arms Act (PLCAA).

As a result, only two cases against gun dealers have fit into one of PLCAA’s narrow exceptions and reached a jury since the federal immunity benefit was granted to the industry. Needless to say, this hardly reflects what Malcolm characterizes as a “disturbing pattern” of judicial defiance.

Indeed, even the claim of judicial “nullification” in the Sandy Hook case is demonstrably unfounded and belies a misrepresentation of the case’s procedural posture. According to Malcolm, Bellis “ignor[ed] federal law by permitting gun manufacturers to be sued.” But, as a practical matter, the immunity statute does not prevent a gun manufacturer from “be[ing] sued.” Rather, as interpreted by numerous courts, it provides the gun manufacturer with a defense against many types of claims after they are sued.

In fact, Bellis has not even ruled whether immunity applies in the case, so Malcolm’s argument is a red herring. Although Bellis rejected the gun manufacturers’ motion to dismiss in April, she did not rule on immunity [PDF]. Perhaps the confusion is that a federal motion to dismiss would be a procedural vehicle for raising and deciding the issue. This case is pending in Connecticut state court, however, where Bellis will await a separate “motion to strike” to consider whether the gun maker is immune from liability.

The sad reality is that the Sandy Hook plaintiffs — like all gun violence victims — face an uphill battle because of PLCAA. At a minimum, however, the plaintiffs deserve a thoughtful determination whether, among other things, the civilian marketing and sale of the assault rifle constituted a “negligent entrustment,” an exception in the statute, in which case immunity would not apply and the case could proceed.

No basis exists to assert a “disturbing pattern” of judges “nullifying” the federal law providing firearm industry immunity. More relevant than arguing about whether courts have heeded the immunity statute — they have — is considering whether it is just to slam the courthouse door on victims solely because they had the terrible misfortune of being harmed by a deadly product manufactured by a powerful industry.

Eric Ruben is a fellow at the Brennan Center for Justice at the New York University School of Law, where his work focuses on Second Amendment jurisprudence.

Suggested citation: Eric Ruben, Exaggerated Claims of “Judicial Nullification” in Gun Cases, JURIST – Professional Commentary, May 21, 2016, http://jurist.org/hotline/2016/05/eric-ruben-judicial-nullification.php.