As many of you know already, I am especially interested in the use of #consumerProtection statutes to ground suits against irresponsible sales and marketing by member of the gun industry. In #WashingtonState, the state legislature and state AG #BobFerguson have been using this approach to deal with large capacity magazines. 1/2 #LawFedi#gunViolence#ConsumerProtection
Forthcoming, Yale Law Journal Forum, by me: a defense of statutes that create public nuisance and consumer protection causes of action against firearms manufacturers for failure to take reasonable measures to control the flow of guns to criminal users. Such laws qualify as predicate statutes under The Protection of Lawful Commerce in Arms Act (#PLCAA). They neither implicate nor infringe the constitutional right to bear arms. Public access to preprint at https://drive.google.com/file/d/15PNxb_uofV9dzCZxQEm6VTKkZboRLNqb/view?usp=drivesdk#LawFedi#Bruen
U.S. v. Rahimi is a truly bonkers case pending before the Supreme Court where the petitioner is arguing that a federal statute prohibiting individuals under domestic violence restraining orders from possessing guns violates the Second Amendment. Yet Rahimi’s argument seems plausibly consistent with the court’s “history and tradition” test established by the Bruen precedent. https://senatormoobs.substack.com/p/bruen-and-abstraction. #scotus#Law#supremecourt#rahimi#bruen
While the Supreme Court pretends they are merely applying historical tests to decide the permissibility of gun control laws, the gun industry uses a historically unprecedented combination of marketing methods, protections from civil liability, and finance tools to push hyper-lethal guns, ammunition, and accessories into the civilian market. Here’s good coverage of how one company did this with the Bushmaster AR-15. https://www.propublica.org/article/how-bushmaster-made-ar-15-into-best-selling-rifle-us@ProPublica#GunViolence#LawFedi#Bruen
"This argument is bold, in the same way that Captain Smith’s choice to navigate the Titanic into an iceberg field was bold. The modern concept of protective orders, after all, did not exist at the founding, which makes the absence of laws disarming people subject to protective orders not as dispositive as your average NRA lifetime member would think..." https://slate.com/news-and-politics/2023/11/rahimi-supreme-court-justices-gun-case-spectacle.html
The justices were taking their first extensive look at the fallout from their 2022 decision in New York State Rifle & Pistol Assn v. #Bruen, which requires the govt to point to historical analogues when defending #laws that limit #SecondAmendment#rights.
The decision has created considerable churn in lower courts, w/dozens of #GunControl laws declared suspect as a result of the justices’ new test.
Bottom line: The majority and dissent differ fundamentally about the meaning of the #14thAmendment; the meaning of #race in the U.S.; and the importance of #precedent in constitutional decisions from the #SupremeCourt. Plus, Justice #Sotomayor absolutely eviscerates #ClarenceThomas concurrence. 1/ #LawFedi
Sotomayor’s discussion of the majority’s disregard for #precedent is crucially important. She shows the lawlessness of the decision, the same lawlessness shown in cases like #Dobbs and #Bruen, other decisions where the current right-wing majority ignores settled case law and substitutes its own radical conclusions without any basis in law or fact. This is, as I’ve argued elsewhere, quintessentially tyrannical. 8/ #FAIRvHarvard#LawFedi
Taking a broader view of #FairvHarvard, the majority opinion and the concurrences fit the #Lochner paradigm. As in #Dobbs and #Bruen, Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett all stake out a position divorced from the reality of American life and arrived at by radical, formalist reasoning. Ultimately, dissatisfaction with this sort of decisionmaking led to the New Deal legal revolution. Dissatisfaction with it may yet birth another sea change in US law. 10/10 #LawFedi
We argue that the United States has a robust history of regulating firearm access by people perceived to be dangerous. #gunviolence#domesticviolence#Bruen
People subject to #domesticviolence protective orders are clearly dangerous to their intimate partners, families, friends, first responders and the broader public. #gunviolence#Bruen