JURIST Guest Columnist Joyce Lee Malcolm of the George Mason School of Law discusses judicial precedent for Second Amendment rights…

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.

In the landmark case District of Columbia v. Heller [PDF] (2008), for example, the Supreme Court affirmed the individual’s right to keep and bear those weapons in common use for self-defense and other lawful purposes. Two years later in McDonald v. City of Chicago [PDF], the court incorporated the Second Amendment protection, finding the right to be armed “fundamental to our scheme of ordered liberty and system of justice.” Nevertheless writing for the Seventh Circuit Court of Appeals in Friedman and Illinois State Rife Association v. City of Highland Park five years after McDonald, Judge Frank Easterbrook upheld Highland Park’s ban on “assault weapons” which it defined as any semi-automatic rifle taking a large capacity magazine and sporting certain cosmetic features. The city branded these guns “dangerous and unusual.” Since these firearms are among the most popular hunting rifles and used safely by millions of Americans, Easterbrook thought “it better to ask whether the regulation bans weapons that were in common use at the time of ratification and [relying on the 1939 case United States v. Miller] weapons that have `some reasonable relationship to the preservation or efficiency of a well regulated militia.'” Both arguments—that the Second Amendment protects only weapons in use at the time of ratification and weapons related to militia use—were explicitly and emphatically rejected by the Supreme Court in Heller and McDonald. In Heller Justice Scalia found the argument that only Eighteenth-Century weapons were protected “bordering on the frivolous” noting “[w]e do not interpret constitutional rights that way” while he characterized that interpretation of Miller as a “startling reading.” Judge Manion, the dissenter in Friedman, was amazed his two colleagues came “not to bury Miller but to exhume it. To that end,” he wrote, their opinion “surveys the landscape of firearm regulations as if Miller were still the controlling authority and Heller were a mere gloss on it.” Regrettably the Supreme Court refused to hear the case and Highland Park’s ban stands.

Last year the justices of the Supreme Judicial Court of Massachusetts in a unanimous opinion again defied the Supreme Court’s Second Amendment rulings. In Caetano v. Massachusetts [PDF] the justices upheld their state’s ban on the stun gun Ms. Caetano had brandished to protect herself because stun guns did not exist when the Second Amendment was ratified. If they had somehow overlooked Justice Scalia’s dismissal of that interpretation in Heller, Justice Alito writing for the majority in McDonald v. City of Chicago was clear: “The Court has held that the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Can the members of the highest Massachusetts court read? The Caetano case was appealed to the US Supreme Court where, by 8 to 0, the Court found the Massachusetts law unconstitutional. In a concurring opinion Alito and Thomas wrote, “Although the Supreme Judicial Court professed to apply Heller, each step of its analysis defied Heller’s reasoning.”

Now we find Connecticut Judge Barbara Bellis permitting a law suit against gun manufacturers to go forward despite a federal law banning such suits. A bit of history is in order. In the late 1990s individuals and municipalities began suing gun manufacturers holding them responsible when guns they produced were used in violent crime. More than twenty law suits were launched, beginning with New Orleans in 1998. Chicago sued 22 gun manufacturers for $433 million dollars arguing the gun companies were “a public nuisance.” Boston sued 31 named defendants for millions of dollars in compensation for the salaries and even the pensions of police, firemen, and medical personnel, claiming the companies were marketing an unsafe product and failed to keep guns from the hands of criminals. The advertised aim was to force the companies to include more safety modifications but the more fundamental goal was to drive them into bankruptcy. Then Housing Secretary Andrew Cuomo warned the companies they would face “death by a thousand cuts.” Eliot Spitzer, New York’s attorney general, threatened if Glock did not settle the state’s claim, “your bankruptcy lawyers will be knocking at your door.”

Law suits, however frivolous, are expensive to fight and companies that manufacture properly made legal products are not responsible for their misuse unless they sell them to dealers or individuals who they have reason to know may employ them for criminal ends. No one would hold a car manufacturer liable for a fatal accident caused by a purchaser. Apart from a few cases that settled, the courts dismissed all the law suits. The Boston suit, meant to be the first to go to trial, was withdrawn in 2002, the mayor claiming it was too expensive to proceed.

Finally, in 2005 Republicans in Congress joined by 60 Democrats passed the Protection of Lawful Commerce in Arms Act. The law shields licensed manufacturers, dealers, and sellers of firearms or ammunition and trade associations from any civil action “resulting from the criminal or unlawful misuse” of a firearm or ammunition. Seeking to hold “an entire industry for harm that is solely caused by others,” the statute stated, “is an abuse of the legal system.” The 2005 law contains some six common-sense exceptions such as evidence that the product was defective or that a weapon was knowingly sold to an individual intent on using it for criminal purposes.

The Connecticut suit brought by the parents of nine victims of the 2012 Sandy Hook massacre does not fall under any of the law’s exceptions. Defendants are accused of producing a weapon unfit for civilian use and selling it to a person known to pose a risk. Since the gun was sold to the shooter, Adam Lanza’s, mother and is a model used by millions of civilians, the arguments are clearly false. Further the manufacturer, Bushmaster, had no reason to know the circumstances of the sale. The judge did not rule on the merits but allowing the suit to go forward violated the law. We expect judges to ensure the law is followed, not circumvented to achieve a result they favor. Bellis has failed in that fundamental duty.

Joyce Lee Malcolm is the Patrick Henry Professor of Constitutional Law at George Mason University. She is an historian and constitutional scholar active in the area of constitutional history, focusing on the development of individual rights in Great Britain and America. She has written many books and articles on gun control, the Second Amendment, and individual rights. Her work was cited several times in the U.S. Supreme Court opinion in District of Columbia v. Heller.

Suggested citation: Joyce Lee Malcolm, Judicial Nullification Continues: Connecticut Judge Defies Law Prohibiting Suits Against Gun Manufacturers, Academic Commentary, Apr. 30, 2016, http://jurist.org/forum/2016/04/joyce-malcolm-judicial-nullification.php.