Forget Congress—The Gun Business Faces a Judge

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On the seventh day, Congress rested. A week after returning to Washington following the Orlando massacre, with funerals still under way from the lone-gunman case with the highest death toll in American history, the Senate chose to do nothing that might prevent something like it from happening again. Senators rejected four separate gun-safety bills that would have expanded background checks and made it harder for terrorism suspects to buy guns. The failure of the votes on Monday, and the failure of the body itself to perform more than a pantomime of governing, surprised nobody: not the senators or their staffs, not the gun-rights activists or the gun-control activists, not the parents of gunfire victims or the survivors of previous massacres, who have, in recent years, taken to wandering the halls of the Capitol in hopes of capturing the conscience of a public servant. The only thing that ever changes is the number of the grieving, because there is always a new massacre. Erica Lafferty Smegielski, whose mother was the principal of Sandy Hook Elementary School, where a gunman killed twenty children and six adults, in 2012, told the Times that "every time we come together for something like this, there is someone new we are introduced to for the first time." In despair, Florida's Senator Bill Nelson, a Democrat, said after the vote, "What am I going to tell forty-nine grieving families? I am going to tell them the N.R.A. won again."

But, on Monday, as the Senate vanished into the bog of gun politics, the most serious legal challenge to American gun violence was unfolding not in Washington but in a state court in Bridgeport, Connecticut. Parents of Sandy Hook victims, and one survivor, have brought a novel lawsuit against Remington Arms, which manufactured the AR-15-style Bushmaster rifle used in the attack, that could pry open the inner workings of the gun company, much as lawsuits against tobacco companies exposed their knowledge of the risks of cancer and their efforts to market to children. Unlike the plaintiffs in previous lawsuits against gun companies, the parents are not seeking to prove that the gun had an unsafe design or was distributed in ways that lead to illegal black-market sales; they accuse Remington of "unfair trade practices" for placing advertisements that marketed it to civilians as "the ultimate combat weapons system." In effect, they are accusing Remington of lying to customers.

This is an acutely vulnerable point. In my piece "Making a Killing," published in the magazine this week, I looked at the manufacturing and marketing of guns and their many associated businesses, which include training, insurance, children's products, ammunition, magazine subscriptions, and holsters. The gun industry is masterly at marketing fear; it takes the kernels of anxiety that people feel in the era of isis and mass shootings and puffs them into full-blown panic. Gun companies have thrived in the nervous, polarized post-9/11 era. The fear of attack and the prospect of new gun-control laws have become reliable new sources of business. In its 2013 annual report, Remington Arms described "increased customer concern relating to more restrictive government regulation" as "a significant long-term opportunity to expand our customer base."

Many thought that the Remington case would be dismissed before it ever got to a courtroom, because gunmakers have been shielded, since 2005, by the Protection of Lawful Commerce in Arms Act (P.L.C.A.A.), a law signed by George W. Bush that immunizes gunmakers from lawsuits to a degree that is unprecedented in American capitalism. As I note in my magazine piece, Mike Fifer, the C.E.O. of Sturm, Ruger & Co. has said the law is "probably the only reason we have a U.S. firearms industry anymore." In asking to have the case thrown out, Remington's attorney, James Vogts, asked, "If the P.L.C.A.A. does not prohibit this case against Remington Arms, what kind of case does it prohibit?"

But the plaintiffs in the Sandy Hook case believe that they are not precluded from filing their case in state court, and Connecticut Superior Court Judge Barbara N. Bellis has allowed preliminary steps to proceed. On Monday, the parents' lawyer Joshua Koskoff accused Remington of making "negligent choices" that serve, in effect, to "entrust the most notorious killing machine to the public and to continue to do so in the face of mounting evidence of its association of mass murder of civilians." He said that the company, according to its own advertising, considered the gun appropriate for use "in the fields of Vietnam and in the streets of Fallujah." But it sold the same weapon to a mother in Connecticut, whose troubled son, Adam Lanza, used it to kill at Sandy Hook. Koskoff asked, "How did it get there?"

One of the biggest things at stake is discovery: If the case goes forward, will plaintiffs, and the press, be allowed to see internal documents about how Remington marketed its weapons using the Internet and video games? Bellis has ordered discovery to begin, but Remington lawyers have said that they will seek to bar files from public view. Bellis has until mid-October to decide what will happen to the case.

In court, Vogts implored the judge not to do the work of a legislature, saying the courtroom was not "the place to debate gun laws." But Judge Bellis asked why society's concerns about the effect of gun marketing should not be taken into account. "Cigarettes are legal, but society has changed regarding how safe they may or may not be," she said. "Why does that same concept not apply to AR-15?" That is the essential issue around guns today-an issue that Congress is too impotent and divided to consider.