Michigan lawmakers, including Gov. Gretchen Whitmer, are considering turning state courtrooms into political battlefields for gun control rather than allowing criminals to stand trial for their crimes.
State lawmakers are thinking of presenting legislation that would empower victim families to sue firearm manufacturers, distributors, and dealers for the horrible murders done by criminals. Let me repeat that for clarity. Legislators in Michigan want to authorize lawsuits against the firearms industry for crimes they did not commit.
There is no question of hauling murderers, thugs, gang members, and other criminals into court to answer for their crimes. Instead, Gov. Whitmer and these state legislators want to score cheap political points by allowing public nuisance lawsuits against firearm manufacturers and small-town gun shops that follow federal and state laws.
This is a risky step that aims only to make it impossible for law-abiding Michiganders to legally buy a handgun. This idea does not address crime. The goal is to put local gun shops out of business and to drive them out of Michigan. When those who follow the law are unable to properly get a firearm, they are denied their constitutionally protected Second Amendment rights.
Firearm merchants only sell firearms after a gun buyer completes an ATF Form 4473 certifying that they are the true recipient of the firearm, are not a convicted criminal or fugitive from justice, have not been convicted of domestic violence, and are not the subject of an arrest warrant. The firearm merchant then checks with the FBI’s National Instant Criminal Background Check System (NICS) to ensure that the buyer is not prohibited from having a firearm. The sale or transfer of a firearm can occur if the FBI verifies it.
Criminals do not obtain firearms in this manner. According to research conducted by the Department of Justice’s Bureau of Justice Statistics (BJS), 90 percent of felons convicted of committing a crime with a firearm admit to obtaining their firearm illegally, most commonly through an illegal black market transaction or theft. These offenders are not passing background checks, allowing them to prey on the helpless in Michigan. They are breaking the law in order to do so.
Governor Whitmer and Michigan legislators pushing for lawsuits against the firearm industry will ignore those realities.
The concept of filing public nuisance lawsuits against the firearms business is not new. This was a tried-and-true strategy used in the late 1990s and early 2000s. Municipalities sued firearms companies for crimes committed by remote third parties, also known as criminals, and the claims were dismissed. They never taught a fundamental knowledge of tort law, which states that people who commit a crime and cause harm are accountable for that harm.
But that wasn’t the point of the litigation, and it isn’t today. The underlying goal of the cases was disclosed by disgraced former New York Gov. Andrew Cuomo, who stated during his tenure as Housing and Urban Development Secretary in the Clinton Administration that these lawsuits were intended to put a “death by a thousand cuts” on the handgun business.
According to Professor Victor Schwartz, a former law professor and law school dean and current co-chairman of the Public Policy Group at the law firm Shook, Hardy & Bacon, “Former Clinton administration Labor Secretary Robert Reich aptly labeled this strategy regulation through litigation.'”
He understood that utilizing the judiciary to enact policy preferences in place of the elected arms of government amounts to “faux legislation that sacrifices democracy.” Any lawful but ‘unpopular’ industry might be attacked and sued out of existence under such a litigation strategy based on the actions of criminals or other third parties that misuse products.”
Before being forced to leave in disgrace, Gov. Cuomo signed a similar measure for New York. Gov. Phil Murphy of New Jersey also signed a similar bill.
Both laws are being challenged by NSSF because they do not stand up to the federal law that prohibits frivolous lawsuits, the Protection of Lawful Commerce in Arms Act (PLCAA). That is the law that was passed with a large bipartisan majority in both the United States House of Representatives and the United States Senate in 2005 and signed into law by President George W. Bush. Courts of appeals have frequently affirmed the statute as constitutional, and it has even been backed by President Joe Biden’s Attorney General Merrick Garland and the Department of Justice.
The argument that gun manufacturers are immune is false. That has been thoroughly verified. The PLCAA prohibits frivolous litigation against firearm companies based on criminal acts perpetrated by distant third parties. Firearm companies can still be held liable if they commit a crime, engage in irresponsible entrustment, or have defects in product design.
PLCAA basically states that firms that make and sell firearms legally cannot be held liable for the crimes perpetrated by others. It would be the same as attempting to sue Ford and Anheuser-Busch for injuries caused by drunk driving.
PLCAA was brought into law because Congress understood anti-gun lawmakers were utilizing the courts as a last resort to avoid the legislative process. The irony is that elected politicians at the time – and now – reject PLCAA because it prevents their “attempt to circumvent the legislative branch of government” and “would expand civil liability in a manner never contemplated by the framers of the Constitution.” Those are the real language in the statute.
Gov. Whitmer and anti-gun lawmakers in Michigan would rather utilize the courts to advance their radical gun control agenda than to imprison criminals. They’re carrying the water for special interest organizations, particularly litigation lawyers who see this as a money-making opportunity. That is not fair to anyone. That is court abuse and denigration of Second Amendment rights.