I’ve said it before: President Trump’s nomination of conservative judges may well be his most important legacy.
Here, “conservative” does not refer to political ideology. It means a legal philosophy that seeks fidelity to the Constitution’s original meaning and plain text of our laws.
This contrasts with “progressive” jurisprudence that treats legal texts not as enduring constraints, but as springboards to policies or outcomes judges think best for present times.
The Constitution, it noted, emphasizes individual liberty, not government convenience.
Two recent judicial decisions illustrate the difference in these approaches and what is at stake for gun owners.
The first is Soto v. Bushmaster—about whether the Protection of Lawful Commerce in Arms Act (PLCAA) blocked a lawsuit to hold the manufacturer of the gun used in the terrible crimes in Newtown, Conn., responsible for the murders.
The essence of the PLCAA is that gun makers and sellers who follow the laws governing their businesses should not be held responsible for criminal misuse of their products by third persons.
This general principle applies without controversy to the manufacturers and dealers of other lawful products. Automakers, for example, are not liable for damages caused by drunk drivers.
Yet anti-gun activists and politicians in the 1990s launched a highly coordinated effort to sue the gun industry for the acts of armed criminals. Whether they won or lost didn’t really matter. The point was to force the industry to go bankrupt defending the lawsuits or extract settlement agreements under which the companies would “voluntarily” adopt the same sorts of gun controls the activists had been unsuccessful in enacting into law.
Fortunately, the PLCAA ended this abusive litigation in 2005.
Or so it seemed.
The PLCAA was not intended to protect bad actors. Therefore it excludes, among others, those who violate a law “applicable to the sale or marketing of the [firearm or ammunition]” in a way that causes the plaintiff’s injuries. An example would be if a licensed firearm dealer sold a gun to a violent felon without running the mandatory background check, and the felon then used that gun to commit a crime.
However, in the case of the Newtown crimes, the perpetrator didn’t buy the gun. His mother did, and the parties involved in the sale followed all applicable laws governing the manufacture, distribution and sale of the rifle.
Nevertheless, the plaintiffs still contend the sale was illegal because (so they argue) the rifle’s manufacturer violated a Connecticut law against fraudulent advertising, which led the killer to choose that gun over other firearms his mother kept in the house—making the attack more deadly.
This outlandish advertising theory not only was a first of its kind end-run around the plcaa, it was the first time that the Connecticut advertising law had been applied to a gun case or even to any personal-injury case. Even left-leaning legal commentators have characterized it as a long shot.
But the argument was good enough for the Connecticut Supreme Court to allow the case to go forward—effectively sentencing the manufacturer to crushing legal expenses and allowing the media to uncritically parrot claims that it intentionally marketed its guns to mass murderers.
In contrast, a case from California (of all places) provides a bracing counterpoint to Connecticut’s judicial activism. In Duncan v. Becerra, federal Judge Roger T. Benitez held that California’s ban on magazines that hold more than 10 rounds of ammunition violated the Second Amendment.
Judge Benitez relied on a very straightforward reading of District of Columbia v. Heller and the Second Amendment’s protection of arms in common use by law-abiding citizens for lawful purposes. He also rejected the idea that the Second Amendment must somehow yield to modernity. “Individual liberty and freedom are not outmoded concepts,” he declared.
The opinion additionally criticized the California law for “turning the Constitution upside down” by revoking a grandfather clause that protected lawful magazine owners. The Constitution, it noted, emphasizes individual liberty, not government convenience. And in what may have been a first for a judicial opinion, Judge Benitez began his opinion by highlighting several instances in which law-abiding citizens used standard-capacity magazines to protect themselves against violent attacks.
Two cases—two different outcomes—pointing the way to two possible futures for gun owners. This starkly demonstrates the importance of President Trump’s judicial nominees—as well as the importance of him being able to make them beyond 2020.