City of Gary wins on appeal

The decision is on line Smith & Wesson Corp .... (PDF file)

The Manufacturers raise two issues, which we restate as:

I. Whether the Protection of Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. §§ 7901-7903, bars the City’s nuisance claims; and

II. Whether the PLCAA violates the Due Process Clause, separation of powers principles, and the Tenth Amendment.

Because we conclude that the PLCAA does not bar the City’s claims, we need not address the constitutional issues. We affirm.2

The court's detailed discussion starts about page 12. They conclude

Based on the language of the predicate exception, the specific context of the predicate exception, and the broader context of the PLCAA, we conclude that the predicate exception is unambiguous.12 Because the City’s complaint and the Indiana Supreme Court’s opinion indicate that the City alleged that the Manufacturers “violated a State or Federal statute applicable to the sale or marketing of the product,” we conclude that the City’s action falls under the predicate exception and is not barred by the PLCAA.13 Because we conclude that the predicate exception applies and that the PLCAA does not bar the City’s claims, we need not address the remaining issues.

I had forgotten that in the PLCAA, Congress expressly stated in its findings:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

Isn't that nice? Here we have an express statement of the U.S. Congress that 2A is an individual right not predicated on service in the militia. Appears to be pretty much meaningless, though.

It's pretty clear to me what PLCAA intended to do - apparently not so clear to some of the judges and city attorneys out there, I guess. They claim that all these gun manufacturers "aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited"?

Yup, I'm sure Sturm, Ruger had nothing better to do than call the dealers and check to make sure they were pushing the Ruger straw purchase special that week. I can see the argument that the dealers might have knowingly violated the law, but the manufacturer? Not so much.

Oh, and what about this:

The record does not contain a copy of the Manufacturers’ motion to dismiss or memorandum of law in support thereof.

The record does not contain a copy of the transcript from this hearing [on the motion to dismiss].

Huh? They didn't make sure the court had the memo of law in support of dismissing? Why not?

After reading the whole thing, I am convinced that the suit is exactly the kind of thing PLCAA was meant to bar. They are not alleging that the manufacturers actually violated any gun-related law. They allege that the manufacturers know that SOME people engage in straw purchases and that SOME dealers knowingly allow it, but because the manufacturers continue to sell their guns, they are negligent in not doing something about the crooked dealers and criminal buyers.

They should sue BATFE and local police who don't stop those criminals.

The whole thing was based on stings - cops acting like straw buyer.

If no guns were actually sold to the stinger or if the stingers were qualified to buy and then transfer, no crime was committed.

However if the cops solicited an illegal act they and their superiors are guilty of several crimes.

And how can anyone determine what is in the mind of the seller and what he *knew* and when he *knew* it.

I'm waiting for the reverse sting in which a dealer refuses a sale for caused and is then prosecuted for discrimination.

Get ready for the next round - High volume dealers guilty of selling a higher proportion of guns inadvertently to crims by virtue of their volume and becoming high volume dealers b/c the batf is squeezing the smaller dealers out.

tom gunn

These judges reached an illegal conclusion and should be punished.

Under no circumstances can they defend that position with the law.

What do you call a crooked judge?

A CRIMINAL..

Is there some kind of exception because the lawsuit started prior to passage of the PLCAA?

Now we know why the meaning and application of Federal law is ultimately determined by Article III Federal courts.