On Dec. 7, The New York Times took a momentary Times-out from spitting up ink on the election results, writing instead about big corporate law firms teaming up to litigate gun rights into oblivion.
The Times listed several monolithic corporate law firms who had formed “a coalition with gun control groups that until now have worked largely on their own. Together, the firms are committing tens of millions of dollars in free legal services from top corporate lawyers who typically bill clients $1,000 an hour or more.” It promised that “the number and the prominence of the firms involved in the new coalition are unheard-of for modern-day big law. Other firms are expected to join in the coming months.”
The Times further stated: “Rather than fighting the political headwinds, the coalition is focusing on courts and state regulatory agencies, among the few places where they might still gain some traction. The coalition is drafting lawsuits and preparing regulatory complaints that could be announced as soon as next month ...” In other words, if you can’t legislate … litigate.
And the Times outlined an ambitious strategy: “On one front, the coalition will seek to overturn state laws that have gone largely unchallenged, including new policies that force businesses to allow guns to be carried on their property. The group also plans to mount the first formal challenges to congressional restrictions on publishing government data on gun violence. Taking a page from the fight against big tobacco two decades ago, it will seek the help of regulators to challenge what it views as the gun industry’s attempts to stifle competition.”
In other words, if you can’t legislate … litigate.
The Times’ tone insinuates that this is a creative new strategy, but most of this is familiar territory. Anti-gun groups attempted to use the EPA to ban lead ammunition before they were defeated by a 2014 federal appeals court ruling, and the “negligent entrustment” lawsuit brought by some Sandy Hook parents against Bushmaster was dismissed earlier this year.
And, of course, Bill Clinton’s Department of Housing and Urban Development backed lawsuits by mayors of several American cities against gun manufacturers to recoup what they labeled as the “cost of gun violence.” Encouraged by the $206 billion windfall the states reaped from the tobacco settlement, several cities filed suit (brought by the same law firm that engineered the tobacco judgment).
This all makes the Times’ article sound less like journalism and more like a press release from the Brady Campaign (who joined with Gabby Giffords’ Law Center to Prevent Violence and NYU’s Brennan Center for Justice to form the coalition).
However, this “Firearms Accountability Counsel Task Force” (no longer a coalition, it seems) may present the best opportunity for gun control to advance in the near future:
Tens of millions of dollars is a lot of money. Whether or not the aforementioned municipal lawsuits were successful was immaterial; advocates were counting on the sheer financial weight of them to force the gun industry into submission. Think of the last few guns and gear companies from whom you purchased; do you think they have tens of millions socked away to fight spurious lawsuits?
Isn’t the Protection of Lawful Commerce In Arms Act (PLCAA) supposed to stop this sort of thing? Absolutely. However, news flash: Lawyers are good at twisting language and can file lawsuits using any exemptions they believe might catch a judge's attention.
Won’t federal judges enforce the PLCAA? Well, sure. But note, that some of these new lawsuits will be heard by some of the 329 judges that President Barack Obama has appointed to the federal bench. Want to bet your next paycheck that they’ll get no traction?
News flash II: Lawyers are creative. The Times says the coalition of law firms and nonprofit organizations will “continue to work around the edges of (the PLCAA).” Indeed, the task force is looking into new lines of attack, including filing an antitrust lawsuit against the gun industry for resisting flawed “smart gun” technology.
Really, you can’t make this stuff up.
Continuing the Brady press release theme (the lawyers’ quotes read like retweets from the Brady Campaign), Avery Gardiner, Brady’s chief legal officer, said, “With this new coalition, our bench just got deeper.” Certainly so, although Michael Bloomberg’s Everytown For Gun Safety declined to get in the dugout with them. Do you smell some intramural rivalry here? Or is Bloomberg wary of another losing record? The task force is looking into new lines of attack, including filing an antitrust lawsuit against the gun industry for resisting flawed “smart gun” technology.
What I’d like to know is whose idea it was to frame this effort as a civil rights struggle—Brady or the Times? “The effort harks back to the civil rights era, when President John F. Kennedysummoned 250 top lawyers to the White Houseand enlisted their help in fighting segregation,” the Times pronounced self-righteously.
For gun owners, this is especially galling, considering that it’s an effort to restrict civil rights, not expand them. Besides, one doesn’t have to go back to the 1960s to find a far more appropriate parallel—the tobacco lawsuits they themselves reference were filed in the 1990s.
After all, $206 billion is a lot of money, too—enough to question the true motives of the corporate law firms involved.