The Most Important Lawsuit You’ve Never Heard Of
The future of gun control may be at stake.
A new front in the gun control fight
Federal laws have protected gun makers from liability from gun crimes and deaths. But officials in New Jersey are taking a novel approach to investigating the industry that hasn’t drawn much attention, Andrew writes in his latest column: They’re going after Smith & Wesson, one of the biggest manufacturers, over its advertising practices.
New Jersey has taken aim at Smith & Wesson’s marketing, in what it describes as a “garden-variety” investigation by the state’s consumer affairs division. At issue are ads like a TV commercial that shows a woman carrying a pistol in a handbag everywhere she goes, from the office to the gym. But nearly everything in that ad is illegal in most states if she didn’t have a concealed carry permit. New Jersey said it’s investigating potential advertising fraud.
The real aim is to unearth internal documents from Smith & Wesson, with the goal of exposing the industry’s workings. Gun manufacturers have been able to resist previous legal fights for such material, including by filing for bankruptcy.
Smith & Wesson’s response: The investigation “seeks to suppress and punish lawful speech regarding gun ownership in order to advance an anti-Second Amendment agenda that the attorney general publicly committed to pursue,” the company argued in a lawsuit to prevent New Jersey from enforcing its subpoena for documents. The company adds that its advertising is protected by the Second Amendment and a federal law meant to shield the gun industry from frivolous lawsuits.
But there’s an exception: The law excludes “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.” In other words, investigating advertising is fair game.
The big takeaway, according to Andrew: This might be the case that finally produces the sort of exposures that helped turn the tide against tobacco companies in the 1990s. “When the industry in question has long felt protected by special laws,” he writes, “it’s possible that the material could be particularly revealing.”