The Daily Signal - #437: The Pivotal Gun Case Likely Going to the Supreme Court, Explained

Episode Date: April 9, 2019

Could the manufacturer of the gun used in the tragic Sandy Hook shooting be sued? That's what at stake in a new case that the Supreme Court has been asked to hear. Heritage Foundation legal expert Amy Swearer breaks down this case, plus what needs to be done to make our schools safe. We also cover these stories:•Attorney General William Barr addresses "spying" on Trump campaign during hearing.•Sen. Bernie Sanders introduces Medicare-for-All legislation.•New Zealand's parliament has voted 119-1 to change its gun laws. The Daily Signal podcast is available on Ricochet, iTunes, SoundCloud, Google Play, or Stitcher. All of our podcasts can be found at DailySignal.com/podcasts. If you like what you hear, please leave a review. You can also leave us a message at 202-608-6205 or write us at [e-mail]. Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Thursday, April 11th. I'm Rachel Del Judas. And I'm Kate Trinco. Today we're going to talk to legal expert Amy Swear about a pivotal gun case that could have big ramifications and that may now head to the Supreme Court. Plus, we'll talk about a new article encouraging people to not share a cartoonist work just because he's pro-life.

By the way, if you're enjoying this podcast, please consider leaving a review or a five-star rating on iTunes and encouraging others to subscribe. Now on to our top news. In testimony on the Hill Wednesday, Attorney General William Barr said he thinks there was spying on the Trump campaign in response to questions from Senator Gene Shaheen,

Democrat of New Hampshire. I think spying on a political campaign is a big deal. It's a big deal. Generation I grew up in, which was the Vietnam War, period, you know, people were all concerned about spying on, anti-war people and so forth by the government. And there were a lot of rules put in place to make sure that there's an adequate basis

before our law enforcement agencies get involved in political surveillance. I'm not suggesting that those rules were violated, but I think it's important to look at that. And I'm not talking about the FBI necessarily, but intelligence agencies more broadly. So you're not suggesting, though, that... spying occurred? I don't, well, I guess you could, I think there was a spying did occur. Yes, I think spying did

occur. Well, let me. The question is whether it was predicated, adequately predicated. And I'm not suggesting it wasn't adequately predicated, but I need to explore that. I think it's my obligation. President Donald Trump announced Wednesday that he does not have any intention to release his tax returns that House Democrats are requesting. He said, quote, I have no obligation to do that while under audit and no lawyer would tell you to release your tax returns while you're under audit. Trump told numbers of the media at the White House. Due to rules the IRS put in place after President Richard Nixon had underpaid on his taxes, and since Nixon, both presidents and

vice presidents have been put under audit during their time in office. I would love to give them, but I'm not going to do it while I'm under audit, Trump said. Senator Bernie Sanders introduced a Medicare for All bill on Wednesday. American people are increasingly clear. They want a health care system that guarantees health care to all Americans as a right. 14 other senators have signed on as co-sponsors of the bill. Israel's prime minister was reelected to serve a fifth term as prime minister of Israel. According to CNN, quote, having all but secured his cherished,

fifth term, Netanyahu become Israel's longest serving leader in the summer, overtaking David Ben-Gurion the country's founder. The votes of diplomats abroad and soldiers are yet to be counted, end quote. I thank the citizens of Israel for their trust,

Netanyahu said Tuesday. I will start forming a right-wing government with our natural partners as soon as tonight. End quote. Another migrant caravan from the Honduras is heading to the United States. Fox News reports that nearly A thousand people came to the starting place of the migrant caravan, some of whom had children with them.

In March, 53,000 families arrived at the border. Not even a month after the mass shooting on March 15th, at two Christchurch masks in New Zealand that left 50 people dead, New Zealand's parliament has voted 119 to 1 to change its gun laws. Once approved by New Zealand's Governor General, the change would place a ban on military style semi-automatic weapons. Prime Minister Jacinda Ardenne told Parliament members that by supporting the legislation, they were, quote, giving a voice to those killed in the Christchurch shooting. The Washington Post is asking a court to dismiss the $250 million lawsuit against it filed by Covington Catholic student Nick Sandman, arguing that the newspaper defamed Sandman.

The Post says in the filing, per USA Today, it was neither false nor defamatory, however, for the post to report the comments of eyewitnesses, including the only participants who are speaking publicly about the matter on the day that videos of the event went viral on the internet. Next up, we'll talk to Amy Swearer about a new gun case. Do conversations about the Supreme Court leave you scratching your head? Then subscribe to SCOTUS 101, a podcast breaking down the cases, personalities, and gossip at the Supreme Court. Remington, a gun manufacturer in North Carolina, is asking the U.S. Supreme Court to hear their case after the Connecticut Supreme Court ruled that the manufacturer could be held liable for the deaths that Sandy Hook since the shooter used a Remington gun. We're joined today by Amy Swearer, a senior legal policy analyst at the Me Center for Legal and Judicial Studies at the Heritage Foundation.

Amy, can you unpack this lawsuit for us? Sure. I think the first thing that's important to keep in mind here is that none of this ruling had to do with the merits of the case. So the Connecticut Supreme Court did not say that Remington was liable for anything, that they did anything wrong. What this really boils down to is a question of whether the plaintiffs, who are all families of individuals who were killed at Sandy Hook, whether those plaintiffs can even sue Remington to begin with. So in 2005, Congress passed. statute called the Protection of Lawful Commerce and Arms Act. And basically what that statute did was say that there is a blanket ban on the ability of private individuals to sue gun manufacturers or gun dealers for times when other individuals unlawfully use those guns. Now there are several exceptions to that, and we'll get into that in a second, but basically there's this blanket ban on these types of lawsuits.

So the Sandy Hook plaintiffs tried to bring this suit in state court in Connecticut. And of course, right away, Remington said, well, you can't do this. Congress has said these types of lawsuits are prohibited. And so going forward, this entire string of cases has been about whether this type of lawsuit is the type of lawsuit that Congress said can't be brought in the first place. So I think that's important to keep in mind that this has. not been in any way, shape, or form about whether Remington is liable. It's about whether we can even get to that next step. So do you think the Supreme Court will agree to hear this case?

There's a good chance that it will. And part of that has to do with the way that this Connecticut state court ruling kind of undermines federal law. So it was very clear when Congress passed this law in 2005 that it intended to stop what it called predatory, politically motivated lawsuits, because the gun industry is a lawful industry. And, you know, as a policy matter, Congress wanted to stop these types of lawsuits against a lawful business as a means of, you know, politically hitting them and making them defend themselves hundreds, thousands of times in court, because it just stymies the entire business. And so because of how this ruling undermines,

literally the entire premise of the bill, there is a good chance that the Supreme Court will take it on because it's a matter of a state essentially saying, well, we are going to interpret exemptions in this statute to undermine the entire thing. And so you have a bit of federalism there. you have what I would consider a blatant disregard of the meaning of the statute. The Supreme Court hasn't taken a case about this statute before, but it seems like this

would be a good time for it to do so. You mentioned that the Supreme Court hasn't taken cases like this before, but are there any indications or past writings or just things that you have seen that might indicate how the Supreme Court may choose to handle this case if they do take it up? Well, I think the biggest thing is actually, you know, now that we have a number of justices who care about originalism and care about, you know, the meaning of the law at the time it was passed, continues to be the meaning of the law. You know, we can't, as judges, just decide, well, this is bad public policy, so we're going to change the meaning of the law judicially. And because that's what happened here, I think there's a good chance that you will see, you know, at least four or five judges who, will look at the legislative history, who will look at the clear congressional intent,

who will look at even just the way that the exemption is laid out in the statute, to say that this type of lawsuit is clearly unequivocally the type of lawsuit that Congress was trying to prevent because it is essentially blaming the gun industry for the unlawful actions, the unlawful criminal actions of a third person, where the gun industry in and of itself did nothing wrong here. So I think that is clearly the indication of where the court might go with this. And what are the possible ramifications in this case for gun businesses, but also would gun owners potentially be affected or would they not be?

Well, so the big problem with this case is that it essentially gives a roadmap for other states, such as New York and California, who are very much not friendly toward the gun industry to enact similar types of statutes and use those state statutes to undermine the federal statute. And so what you could see is this law being undermined in just the way it's interpreted in the states to an extent that the floodgates of litigation kind of open again so that all it takes is, you know, someone to file suit in Connecticut or another anti-gun state that has interpreted the law this way. And all of a sudden, all of the protections that Congress enacted in 2005 to prevent these types of lawsuits no longer matter. And so they're getting sued left and right for, again, these same types

of politically motivated, vindictive anti-gun type lawsuits. Are there any other industries that are held responsible in crimes? For example, have car companies ever been responsible for accidents caused by drivers? So my understanding is that, so there's no similar type of law like the lawful protection of commerce and arms law for the vehicle industry. But generally speaking, the way that these sorts of liabilities work is that they never get to it on the merits. So they're allowed to bring those suits. but ultimately speaking, you know, you have to be able to show that the car manufacturer did something wrong. And that by doing something wrong, it caused that injury.

So you can't just say, for example, with a car manufacturer, well, you created a car that could be used to commit a drunk driving incident. And so therefore, you're liable. You know, as a general rule, manufacturers of lawful products, regardless of what it is, whether it's firearms, whether it's cars, whether it's baseball bats, you know, unless there is something more, you know, where they were specifically marketing it, you know, with an advertisement, like, yeah, we want you to drink and drive in this car. they're not held liable, just as a general matter of that's not how civil liability works. But what Congress actually did here is an act of law to say, this is so politically motivated, and this is so clearly trying to stymie a lawful industry that we're not going to allow you to bring those lawsuits anymore. Because the gun industry was being targeted in a way that other industries were not. So you brought up advertising.

And unlike you, I am not. legal scholar. But my understanding of this case is it hinges not on so much that Remington used the gun or the Remington gun was used in Sandy Hook, but advertising Remington put out, I believe, describing the gun as a combat weapon or something to that effect, incited the Sandy Hook shooter is the idea. And what, yeah, is there any legal precedent for looking at advertising this way or how does that shake out? Right. So essentially, one of the exceptions to this federal law, if you as a gun manufacturer break a state or federal law regarding sales or advertising, you can be held liable for that. And so kind of as you implied there, the plaintiffs are saying Remington violated

a Connecticut state statute regarding marketing. And that because they violated that statute, we can, you know, we're saying that's the cause of injury and so we can bring suit. The problem is, this statute in Connecticut is so vague. You don't even have to necessarily break an existing law to violate the statute. You just have to have a commissioner fine that you violated public policy or something you did was immoral with the advertising. And so essentially what they're arguing is by advertising the gun as, you know, in a lawful way with people using it lawfully, you know, just holding Remington rifles that this somehow induced people to believe. that they wanted you to use this to attack civilians. So it's kind of this convoluted reasoning,

where they're trying to argue that they violated this marketing statute because advertising the guns, just in a normal way, was against public policy and was bad and immoral. So again, it's this weird scenario where it is the exact opposite of what Congress intended from these exemptions. So, for example, if Remington were to have advertised, the gun as, you know, you can fire 500,000 rounds before it ever malfunctions. We guarantee it. And lo and behold, like, it just never fires at all. Like, you could sue them for, you know,

the liability of a false advertising, essentially. Or if, for example, a gun store did not keep adequate records or sold to felons knowingly, you know, that absolutely violates a federal law. And if that felon then went on to commit a crime, yes, we all agree the gun store should be held liable because the gun store did something objectively wrong, you know, objectively against the law. But the way that Connecticut has interpreted this statute kind of takes all of that objective reality away and essentially gives the state the power to say, well, we didn't like the way it was lawful. What you did was not against the law, but we didn't like the way you advertised this. So now you can be held liable for really anything that goes wrong with your guns.

Last question. So, you know, obviously this brings up Sandy Hook, which it's incredible that it's now been, I guess, seven years. But we're still dealing with school shootings and a lack of safety at schools. And obviously this is a very complicated topic, but big picture, what can we do in school safety? So there's a number of things that we can do from a standpoint of school safety. And first, you know, let me be clear. I cannot imagine what these family members from Sandy Hook must be going. through. I mean, they have suffered incredibly. And it's natural to, you know, look for justice, especially when the individual who actually committed the crimes is not available, you know, to have justice administered too. But I think in reality, what we have to look at here is that for 10 minutes, that individual was able to have free reign to harm those students. It was 10 minutes before the first 911 call to when police entered that building. And at that point, frankly, it doesn't matter what type of weapon you have. I mean, when evil is unopposed for that long, it's problematic.

And so one of the first things we have to look at doing is ensuring that we are protecting our nation's students in the same way that we protect our nation celebrities. You know, that can look different depending on the the context of the school. It might include having armed security on campus. It might include other measures. But that is definitely one aspect of it. I think the other aspect is looking at mental health and looking at these warning signs. It is very, very rare that we have these types of incidents where people were just shocked and had no idea that this person was capable of committing violent acts because most of the time you have individuals who, you know,

For example, in Parkland, we're going on YouTube and posting, I'm going to be a school shooter, you know, where there are so many warning signs and being able to distinguish those warning signs and to intervene before deadly situations happen is also very critical. And so I think when you combine those two things together, that is definitely where we have to start looking at school safety and not blaming a lawful industry for the ways in which, you know, their lawful products are misused. Amy, thank you so much for joining us today. Thank you for having me. Are you looking for quick conservative policy solutions to current issues? Sign up for Heritage's weekly newsletter, The Agenda. In the Agenda, you will learn what issues Heritage Scholars on Capitol Hill are working on, what position conservatives are taking, and links to our in-depth research.

The agenda also provides information on important events happening here at Heritage that you can watch online, as well as media interviews from our experts. Sign up for the agenda on heritage.org today. Nylon Magazine doesn't want you to have anything to do with pro-lifers. The outlet wrote this week, quote, cartoonist Nathan Pyle, whose strange planet alien drawings you've definitely seen everywhere, was discovered to be anti-abortion today, which serves as a valuable reminder that you should know about the person whose content you're sharing.

And finding out about Pyle's problematic views serves as a needed warning to make sure the content that you're sharing was created by someone who views you as deserving of autonomy over your own body. So if I'm understanding this magazine correctly, you shouldn't share this guy's cartoons anymore because he's pro-life. So Rachel, what do you think? I just think this is ridiculous and also very sad. I see people on Instagram influencers as well as celebrities come out and they want to plug different products or different movements that they're a part of. For example, I really am a fan of Eliza Slushinger.

She's a comedian. She has a show on Netflix called Elder Millennial, and she's hilarious. And I really enjoy following her, but she's constantly plugging, let's save the turtles, let's, you know, not use plastic straws on and on and on. And here is this guy here, Nathan Pyle, who feels convicted about being pro-life and wants to share his convictions with followers. And this is a personal view he has. And I just think it's sad.

We live in a free country. this is the United States of America. It's not China or some other country where our speech is so inhibited. And he should be more than able to come out on this and to just talk to his followers about what he thinks about the life issue. And guess what? If they don't like it, they don't have to follow him. You know, it's interesting. So I at first agreed with you.

And then I was thinking about this some more. And I wasn't sure how I felt. Because recently I watched this TV show in Hoodlew called Shrill, which is about an overweight women navigating her weird Portland life. don't really know how to describe it. And in the very first episode, the show makes very clear that it is a pro-abortion show. And I still watched it, but I actually caught myself thinking, like, I assume, and I still assume this, that most people who identify as pro-choice do not believe it's a baby, are acting out of good faith, they're ignorant of the science, okay. But I was thinking, would I, I don't know, like would I be comfortable?

watching a TV show by someone who supported Nazis? No. And I don't know if maybe we've come to a weird point of, I don't know, more extremism, or, you know, we've definitely seen the abortion debate heat up. And, you know, maybe this is a chance to say, yeah, we do think it's a baby. And if you're this opposed to it, I mean, there kind of isn't a middle ground. Mm-hmm. There definitely is in a middle ground.

And I think now is the time to be having this discussion. And I think of what Arthur Brooks was saying here at the Heritage Foundation a few weeks ago is we become so polarized. And if we do have differing opinions, I think we should be able to talk about them. And I think from what I've read of what he said, he is coming out, Nathan Pyle, in good faith. And I mean, if people are upset about it, this is a time to have a conversation about this issue and to learn from each other because there are things we can learn from people who are pro-abortion. And obviously, there are things that they can appreciate about pro-life people. So I just think ultimately it's unfair for this magazine to come out so strongly and say to, you know, the magazine's followers and readers, hey, you should boycott this person because he doesn't share our views. Right.

But I think it does show, you know, the left is not playing around with abortion these days. Like we've come a long way from safe, legal, and rare. It's now something to be celebrated. And if you're not on board. And, you know, this is sort of similar to, you know, we've seen a couple of cities airports recently say they won't let Chick-fil-A in. you know, that's ostensibly over marriage and LGBT issues, but it's sort of the same thing. I mean, you know, you talk about dialogue, but it doesn't seem like a lot of them are interested in having dialogue. And that's why you need to be having it. You're exactly right.

And that'll do it for today's episode. Thanks for listening to The Daily Signal podcast, brought to you from the Robert H. Bruce Radio Studio at the Heritage Foundation. Please be sure to subscribe on iTunes, Google Play, or SoundCloud. And please leave us a review or a rating on iTunes to give us any feedback. Thanks to listener LMQ 2345 who wrote us on iTunes, quote, The Daily Signal podcast is one of those not to be missed podcasts. I hear things discussed here that I will never find in the mainstream media. We'll see you again tomorrow. You've been listening to the Daily Signal podcast,

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