The plaintiffs in the nuisance suit against the maker, distributor, and seller of the rifle used in the Sandy Hook shooting have scored another win, gaining an opportunity to look at the companies’ internal files to see if they reveal a marketing strategy to sell weapons to “troubled, violent young men.” The decision from Judge Barbara N. Bellis cites a concern that “even a temporary stay of discovery through October of 2016 would translate into a delay of the trial.” The October date is the earliest that she would rule on the motion to toss out the case due to immunity given by the Protection of Lawful Commerce in Arms Act.
To review, the PLCAA was passed in 2005 to prevent lawsuits against gun makers and licensed dealers for the unlawful actions of buyers, though there are several exceptions to this immunity.  Most of those cover cases in which the firearm was defective, the dealer broke a law, or the federal attorney general is taking action under the Gun Control Act of 1968 or the National Firearms Act of 1934. One exception addresses cases in which the seller “knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.”  This is referred to as negligent entrustment.  The plaintiffs here would have to show that the seller had good reason to suspect Nancy Lanza of posing this kind of risk but failed to stop the sale, and that’s a difficult standard to meet.
The families are trying to get around the protection of the PLCAA by claiming that the marketing of AR-15 rifles is itself a negligent entrustment by appealing to disaffected white young men.  One supposed example of this is the ad campaign by Bushmaster telling buyers to consider their man cards reissued.  The small print of the ad states, “If it’s good enough for the professional, it’s good enough for you.”
I’ll agree that the marketing was silly.  Attempts to force manhood into stereotypes—either traditional or metrosexual—fail to make sense when exposed to analysis, but advertisers are rarely worried about logic or evidence, and appeals to masculinity must work, or money wouldn’t be spent on ad campaigns that do just that.
The question before the court, though, is whether a marketing strategy can be considered an act of negligence.  There is a basic error here, an attempt to distribute blame as widely as possible.  The grief that the Sandy Hook families have endured is something that no one should have to go through, but that doesn’t justify lashing out at gun makers and sellers who followed the law.  Advertisements make many kinds of promises, most of them ridiculous.  Men are told that women will be drawn to us if we buy the right set of tires, that life and health are to be found in a variety of pills, or that we’ll be more authentic men if we wear a particular suit.  And it’s all nonsense.
If the standard of advertising is to be that it can never set off some unhinged loser, we might as well give up on television, print magazines, and the Internet.  We’d also have to surrender the public space to such people.  A free society is built for good people who respect each other’s rights, and that’s predicated on accepting the risks of freedom.  Curtailing rights won’t make us safe and won’t make us free, and nuisance suits are no answer to the problems of violence in America.
The views and opinions expressed in this post are those of the author’s and do not necessarily reflect the position of Guns.com.
