Judges Matter: Contrasting Decisions Demonstrate Importance of the Judiciary to Second Amendment Rights

trump gorsuch swearing in supreme court

President Donald J Trump introduces the new Associate Supreme Court Justice, Neil Gorsuch at a White House Rose Garden ceremony. Justice Gorsuch was then sworn in by Justice Anthony Kennedy Photo by Patsy Lynch/MediaPunch /IPX

By Chris W. Cox

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 the 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.

Two recent judicial decisions illustrate the difference in these approaches and what is at stake for gun owners.

The first is Soto v. Bushmaster, which concerned 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 the criminal misuse of their products by third persons.

This general principle applies without controversy to the manufacturers and dealers of other lawful products. Auto makers, 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 suits or to 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. It therefore 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.

In the case of the Newtown crimes, however, 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 was not only a first of its kind end-run around the PLCAA, it was the first time 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 violence 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.

 

Chris W. Cox has served as the executive director of the Institute for Legislative Action, the political and lobbying arm of NRA, since 2002. As NRA’s principal political strategist, Cox oversees eight NRA-ILA divisions: Federal Affairs; State & Local Affairs; Public Affairs; Grassroots; Finance; Research & Information; Conservation, Wildlife & Natural Resources; and Office of Legislative Counsel. Cox also serves as chairman of NRA’s Political Victory Fund (NRA-PVF), the Association’s political action committee; president of the NRA Freedom Action Foundation (NRA-FAF), which focuses on non-partisan voter registration and citizen education; and chairman of NRA Country, an effort to bring country music artists together with NRA members in support of our Second Amendment freedoms and hunting heritage.

comments

  1. avatar TexTed says:

    But… but.. but muh bump stock!!! I’m gonna vote against Trump because he stabbed us in the back. Not another inch!!!!! I’ll vote for AOC for president against Trump, because that’ll show him! He can’t take us for granted!

    There, did I stave off all the whining? No? Didn’t think so.

    Look, nobody will ever give you everything that you want. Ever. If they did, then you wouldn’t vote anymore. The game is to keep you scared so you’ll get out and vote, and send money to the political campaigns or organizations that claim they will represent your interests.

    So what’s the real story? Are we 1,000,000 times better off with the Trumphole than we would have been with Hillary? Hell yes. And that’s the truth. It ain’t perfect, but it’s better than it would have been, and whether you like it or not that’s the best you can expect from the modern system.

    1. avatar jwm says:

      Exactly. I will vote for #orangemanbad again if he is the one running.

      Don’t vote. Vote for a 3rd party. It’s the same thing. You’re voting for biden/bernie/hillary/aoc. You and every graveyard in America.

      1. avatar Vic Nighthorse says:

        According to my understanding of math, 0 does not equal 1 or even -1. You seem to be assuming that a vote is for Trump until the voter chooses someone else thus making it, at that point, a lost vote for Trump. I don’t think that is the case, just like your money is not the government’s money until they choose what portion to let you keep. I am not suggesting that I won’t vote for Trump in the general election this time.

        1. avatar mrvco says:

          And there’s the catch-22 problem with voting for the lesser of two evils.

          Regardless, I still find bump stocks to be a pretty shitty hill to have to plant one’s flag.

        2. avatar Eric in Oregon says:

          It’s pretty easy to understand. Trump needs votes to win. If you deny him a vote by not voting or voting for a 3rd party also-ran, it makes it more likely he’ll lose and thus the other side will win. Like it or not, Trump is our guy for the next 16 to 64 months.

          Thus, the “MUH 0 NOT EQUAL TO 1” argument is pretty stupid and people should probably stop busting it out.

        3. avatar Chris says:

          You seem to be assuming that a vote is for Trump until the voter chooses someone else thus making it, at that point, a lost vote for Trump.

          Except it is objectivity a lost vote for Trump and an increased chance that someone utterly adverse to the 2A, and wiht massive IOUs to Bloomberg, will be in the White House, passing legislation include through the House and Senate that makes bump stocks like nothing — and appointing possibly a replacement to Thomas meaning a Supreme court that will end Heller, support Ar-15 bans, mag bans and and support may issue, emboldening a lot of blue states or turning blue states, that are shall issue going to may issue (no issue) .

          And then there are the hundred of federal judges appointed by each president.

      2. avatar Garrison Hall says:

        I used to have this kind of argument with Libertarian Party types all the time. But then I realized that their insistence on 3rd party voting was a convenient excuse. They were actually quite comfortable with their cozy relationships with progressives, seeing themselves as a “loyal opposition”. They tended to see conservatives as a threat to this relationship. To this day, Libertarian candidates are more of a threat to conservatives (siphoning away potential conservative voters by claiming that their 3rd party vote is a symbolic protest) than they are to progressive-Left-Fascist political candidates. I still like most Libertarian theories but Libertarian Party types suck big time.

        1. avatar The Crimson Pirate says:

          The LP is a joke. It has been hijacked and used as personal vehicle by non libertarian candidates for almost 2 decades at this point. The LP has nothing to do with libertarian principles.

          In 2016 there was a big split among libertarians (not party members) over Trump with about half going right and half going left.

          The most libertarian people to run for office in the last 2 decades ran as Republicans. Because that is a viable vehicle to get elected in the corrupt and rigged system.

          The idea of a viable 3rd party may be good but the execution in a system controlled and manipulated by the big 2 can never be good.

          All we are doing by voting for Trump is buying ourselves 4 more years to prepare for the inevitable………………….

    2. avatar barnbwt says:

      You’d have a much stronger argument if Trump had nominated Benitez to the bench rather than Kavanaugh.

      1. avatar TexTed says:

        Trump was told by his lords and masters that he was to nominate Kavanaugh. Kavanaugh represented a broken promise — he was NOT on the original list of judges. How did he get elevated to being the pick? Politics. This was Trump “playing the game” and doing what he was told. Even Cocaine Mitch told him not to pick Kavanaugh, as he’d be difficult to confirm. Turns out that was pretty prescient.

        1. avatar Chris says:

          Oh STFU. Who would Hillary have appointed? huh? I am sick of people who don’t live in the real world. Who is it that Kamila Harris or Corey Booker will appoint to replace Thomas?

          Do you have any idea that we used to have moderately pro gun blue dog Democrats and now we have NONE? That there i snow a litumus test on guns due to Bloombergs billions?

          Democrats are set to take the Senate in 2022. If a Democrat wins the White House this go around you will see a federal assault rifle ban no only with no sunset but NO grandfathering. You will see federal 10 round mag limits. and when Thomas gets replaced by a Democrats, a shredding of Heller, a ruling supporting May issue and a slew of now moderate to good 2A blue states adopt New Jersey stye gun control.

      2. avatar Biatec says:

        Yeah some of his judges were anti gun “conservative” judges from hawaii. Kavanaugh is not a good pick either. I don’t see the point of trump. Also the bump stock thing is still going over peoples heads. I think they need it to be not true or something.

        It is not about the bump stock it’s about the new avenues to gun control which have just opened up. I don’t get why people don’t realize he has created something that could be and likely will be if it stands in court to be on par with the machine gun ban or the nfa. Power is being centralized and people are saying “Well it’s better than the other option”

        It’s not going to matter until we get better candidates or a good third party.

        1. avatar Phil Wilson says:

          “It’s not going to matter until we get better candidates or a good third party.”

          There are many advantages to a 2-party system compared to the free-for-all we see in many other nations. But this is one disadvantage. A new party doesn’t materialize over night. It could, but realistically it won’t. That means, in the short term, the new party is going to take votes from the lesser evil, giving victories to the greater evil (again, at least in the short term). The other approach, as you say, is to fix the lesser evil (primary RINOs).

          I continue to believe in the latter, even if we don’t see big changes in the legislature right away. But it may be the better option, since the Democrat Party is so utterly radicalized right now. If we give them power as a necessary sacrifice to eventually developing a viable alternative party, we may never see a return on the investment after the leftists eliminate free speech, the right to bear arms, due process, etc.

        2. avatar Dude says:

          Kavanaugh was a poor choice, but realistically he is 1000x better than anyone Hillary would have nominated. It’s a real possibility that Trump could nominate another Supreme Court Justice, and he will definitely be nominating more lower court judges. I hear your complaints, but you’re crazy if you don’t vote for Trump 2020.

        3. avatar Dude says:

          “The other approach, as you say, is to fix the lesser evil (primary RINOs)”
          Trump is doing a pretty good job of remaking the republican party and ruining the political careers of the RINOs. Corker is now hated by most Tennesseeans. Jeff Flake will never be able to run for political office again, in a red state anyway. Romney only gets a pass because he represents Utah, and he’s a Mormon. I don’t know what sort of district Justin Amash is from, but he’ll never gain any traction nationally now, except from democrats and the few, but loud Trump hating “republicans”.

        4. avatar UpInArms says:

          ” It’s not going to matter until we get better candidates or a good third party ”

          I don’t know about a good 3rd party, but a 3rd party could be well on the way. Sanders is going to get screwed by the Democrat Old Guard, again, just like in 2016. Biden is the nominee. The reason he took so long to get into the farce was he wanted to make sure the Old Guard was solidly lined up behind him. Now they are and they’ve handed him the keys to the clown car (i.e., all those super-delegates are already in his pocket). So the fix is in.

          Sanders is 76 and probably figures he doesn’t have another run left in him, plus he’s likely still really pissed over the screwing he got from the Clinton machine. If he does not get the nomination (and he won’t) I’d say the odds are enormously high that he goes scorched earth, splits off from the Democrats (he’s not a Democrat anyway), links up with Chiquita Khruschev and her cabal of gyno-commies and goes off to form a new party.

  2. avatar Docduracoat says:

    Texted,
    You have a valid point. The bump stock ban personally affected me as I used one pretty much every time I went shooting. I have since learned to bumpfire my CZ Scorpion with just my finger.
    Trump and the Republican Party have taken us Gun Owners for granted.
    As you said, what else are we going to do? Vote for AOC or Kamala?
    They make no secret of the fact that assault rifle bans are next on their list.
    The main problem is DJT’s use of ordering the DOJ to write a ban by regulation.
    I predict the next Democrat president ( and there will be one in the future) will follow the same precedent to ban all work arounds of the NFA.
    Binary triggers and pistol braces will be banned in the exact same way.
    And the NRA will say who cares about such range toys
    Well WE care.
    And we people of the gun red a way to go Change the behavior of the Republican Party

    1. avatar TexTed says:

      Don’t misunderstand — the bump stock ban was an egregious overreach and a horrifying precedent, one that will hopefully be resolved by the courts.

      I’m just pointing out the political games being played. Why all the hysteria over the abortion laws? To rile up the Democrats and to get them to give money and turn out in 2020.

      Why, after 40+ years of the NAACP, are we still battling about race relations in this country? Shouldn’t it have been solved decades ago? Of course not — if the problem were solved, who would give more money to the NAACP and Jesse Jackson and the rest of the race baiters?

      Why, after decades of gun control laws, the Brady group, Bloomberg, Shannon Watts and her Moms, etc., do we still have school shootings? Shouldn’t this have been solved already? The truth is: those folks frickin’ LOVE school shootings! A school shooting is the best thing to happen to them! News outlets give them wall-to-wall coverage, and donations skyrocket when stuff like that happens. They will never do anything to actually reduce school shootings, that would be cutting off their golden goose.

      Why, after decades and decades of the NRA chanting gloom and doom, why haven’t they produced rock-solid protections for defense rights? Because they NEED the boogeyman, they need to scare us, so we’ll keep donating. Note: that doesn’t mean there isn’t a boogeyman, of course there is, but — if they ever truly defeat the boogeyman, then — what do we need them for exactly? And why would we need to keep sending them money? Hmmm…

      Remember when blowhard douchebag gun dealer FirearmsConcierge wrote here that he was going to vote for Hillary, because “she will be good for business”? People lost their minds when he wrote that. But it’s true… he was fricassee’d because he actually let folks see what’s really going on.

      That’s the game. That’s the system.

      You’ll never get what you want. You can only evaluate it based on “which will suck less?”

      1. avatar barnbwt says:

        “Don’t misunderstand — the bump stock ban was an egregious overreach and a horrifying precedent, one that will hopefully be resolved by the courts.”

        By the courts…not the ballot box. So, it’s not *our* job as voters to hold politicians accountable to our wishes, but a bevy of black-robes *they* appoint to lifelong terms? “Why can’t someone else do it!?”

        Question; if our job as voters is not to hold politicians accountable, what is the purpose of holding an election?

        1. avatar TexTed says:

          Political theater.

          Did you know that 55% of voters polled said they would prefer to amend the Constitution to do away with the electoral college and elect the president based on the popular vote?

          Did you know that in the same poll, 53% said they opposed the FairVote system that is designed to award all a state’s electors to the winner of the popular vote?

          Voters today don’t know their ass from a hole in the ground. You can decry as “racist” or “elitist” or whatever else the original intent of having landowners be voters, but there’s a hell of a lot to be said for a system like that. People with no skin in the game should not be able to strip other people of their rights, by mob rule.

          Or, put another way: “democracy” is two wolves and a sheep voting on what’s for dinner.

          It’s all part of the game. Whenever I hear a politician talk about “our democracy”, it makes me cringe. They’re leveraging this talk of “democracy” to destroy the very foundations of the republic. “democracy” = mob rule. That’s why the system was set up as a republic, and why the Senate was not elected by “one man, one vote”.

        2. avatar TexTed says:

          For clarification — you have to remember back before Trump. We held elections, candidates made promises, people were voted in, and then they NEVER DID A DAMN THING THEY SAID THEY WOULD.

          EVER.

          And that’s just how the system worked. Nobody really got upset, because nobody cared, because it didn’t really make much of a difference. Some difference, yes, but not a whole heck of a lot.

          That’s why people are SO upset about the bad orange man — because he actually DID do many of the things he said he would. That flipped the whole country out — nobody, at least in my lifetime, had ever done such a thing. More than ever before, Trump showed that “elections have consequences”. People had gotten used to the idea that elections didn’t really have much consequence. Now they have huge consequences, and the handwringing commenced in earnest.

          Maybe, from here on out, elections will actually matter more.

        3. avatar Phil Wilson says:

          @Tex Ted

          And another part of the problem is that the Fed Gov was never intended to be as powerful as it is. People
          SHOULD be able to largely proceed in ignorance, minding their day-to-day business and local issues, without worrying too much about their life turning upside down with each Federal election and ensuing “fundamental transformations.”

          The issues you cite are only crucial if the gov. is improperly used as a vehicle to redistribute wealth or deny civil liberties (though I admit that’s an over-simplification, but it holds in outline). We don’t need to go back to land owners, probably, but as things stand it would be a very good idea if you only get a vote if you are a net tax payer. Better still, of course, would be to eliminate the ability to vote yourself a share of what other people earn.

          Even my kids understand this: You get to decide how to spend your money, you don’t get to decide how to spend someone else’s money.

        4. avatar Chris says:

          By the courts…not the ballot box. So, it’s not *our* job as voters to hold politicians accountable to our wishes, but a bevy of black-robes *they* appoint to lifelong terms? “Why can’t someone else do it!?”
          Question; if our job as voters is not to hold politicians accountable, what is the purpose of holding an election?

          Because in the end all politics is a messy set of compromises and mediocre vs very bad outcomes on issues, and if you don’t play on a team that may win you LOSE

          The propose of holding an election is messy and diffuse pressure to counteract pressure from the other side. It is not to “settle” issues, since all issues are in constant motion.

          think of it as a tug of war team. I’m on the Trump and GOP side despite not agreeing with him and the GOP on most of the GOP climate position, some aspects of abortion (like most Americans I don’t agree with the Virginia governor’s support of 9 month abortions or the Alabama no abortions).

          Most people do not take their politics as an orthodoxy or a religion or a black and white thing because that hand the election to the complete opposite side.

  3. avatar NORDNEG says:

    This is why we need a loser pays law,,, it would stop frivolous law suits,, only problem is congress has to vote on that & since most of them are lawyers, they would vote it down,,, that is why the voters should be the ones to say yay or nay.

    1. avatar Ralph says:

      I agree with you completely. And I’m a retired lawyer.

  4. avatar barnbwt says:

    Techically, contrasting decisions more underscores how inadequate the judiciary is for deciding these sorts of important questions objectively.

  5. avatar Ed Schrade says:

    Judges can be removed for constantly giving rulings contrary to constitutional law. This needs to be pursued to weed out judicial activists.

  6. avatar Ralph says:

    Judges have done more harm to this country than any foreign enemy could ever dream of doing.

  7. avatar Timothy Toroian says:

    CSC needs to be slapped down by SCOTUS! Anice national announcement that the PLCAA is in effect and the operational standard.

  8. avatar Demo Man says:

    Explain to the rubes how the judicial system works as you and Wayne fly over in the NRA jet. NRA opposed McDonald v. Chicago and tried to stop it. When the frat boys at NRA realized that 2nd Amendment attorney Alan Gura was going to take Otis to the Supreme Court, they hired D.C. insider attorney Paul Clement, former Solicitor General of the United States, to horn in on Gura’s lawsuit and steal ten minutes of his thirty minute oral argument time in front of the Supreme Court. Thanks NRA!

    When it was time for Illinois to adopt a carry law in 2013 based on the McDonald decision, after FIFTY YEARS of no citizen carry, your friends Chris Cox & Chuck Cunningham at NRA HQ let contract lobbyist Donald Todd Vandermyde place Duty to Inform in state Rep. Brandon Phelps’ concealed carry bill, because the police are your friends, if you’re white and live in a small town. NRA, Inc. is a whorehouse loaded with traitors and rats that sold out Otis McDonald and every gun owner in Illinois.

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