So it was sweet this week to learn that nine families devastated by the Sandy Hook Elementary School massacre of 2012 had extracted a $73 million settlement from Remington Arms, the company that had manufactured and hyped the Bushmaster AR-15 that had enabled some loser to decimate 20 little kids and six grownups with 154 bullets in a span of 264 seconds.
The settlement, after more than five years of litigation in the Connecticut courts, is downright historic. There are no guarantees that such justice can be replicated in other mass shootings, for reasons I will explain, but a moment of celebration is certainly warranted.
To this day, I can’t bear to look at pictures of those Sandy Hook kids, but that’s just me. The Senate Republicans who stonewalled gun reform after the massacre were apparently less moved. So was Remington Arms, which fought the Sandy Hook lawsuit tooth and nail for years. Their predictable instinct was to defend their Bushmaster ad campaign – the one it featured in civilian catalogues with slogans like these:
The uncompromising choice when you demand a rifle as mission-adaptable as you are…
Military-proven performance…
The ultimate combat weapons system…
Forces of opposition, bow down. You are single-handedly outnumbered…
Consider your man card reissued…
Remington believed, however, that the Sandy Hook parents had no power to sue, that the company was confident that it had total immunity from lawsuits – thanks to a 2005 federal law, pushed by the NRA, that blesses Big Gun with blanket protection. What a great deal it was and continues to be, courtesy of President Bush (who signed it) and the Republicans in Congress (along with help from some Democrats, like Bernie Sanders). The law is creatively named “The Protection of Lawful Commerce in Arms Act.”
Well, those little kids in Connecticut – those so-called “forces of opposition” – were indeed “single-handedly outnumbered.” But the good news (which can never bring them back) is that the parents found a loophole. The federal act said it was still OK to sue gunmakers for “knowingly” violating state laws that address the “sale or marketing” of a firearm.
And it just so happens that Connecticut (my native state, I’m so proud) has an Unfair Trade Practices Act, which bars deceptive and unfair conduct of trade or commerce. Under that state law, a commercial practice is deemed unfair if it is “immoral, unethical, oppressive, or unscrupulous.” Turns out, according to the Connecticut courts that handled the Sandy Hook lawsuit, that selling “mission adaptable” military hardware to civilians for offensive (pun intended) combat purposes indeed met the definition of immoral and unethical.
So Remington decided to throw in the towel and settle (without formally admitting any guilt, naturally). Or, to be more precise, Remington’s insurers are paying the $73-million tab because Remington as an entity went bankrupt a few years ago. Legal niceties aside, it’s the first time that an American merchant of death has ever been held accountable.
The big question is whether this is the dawn of a new day for the families of mass shooting victims – or a rarity. Adam Winkler, a UCLA law professor and gun policy specialist, said this week in an Axios broadcast: “This settlement is going to encourage more lawsuits…The kinds of advertising that were used by Remington in this case were not unique to that company. Many of the gunmakers have marketed these AR-15 style military assault rifles in ways that emphasize combat violence, and appeal to the kind of hyper-masculinity that the families accused Remington of doing.”
But the 2005 federal immunity law will still be a huge hurdle for aggrieved families elsewhere, especially in states that (unlike Connecticut) have weak unfair trade laws – or no such laws at all. State courts may be less amenable than the Connecticut courts. And ultimately, the U.S. Supreme Court has the final word on gun rights, and we’re all familiar with its ideological composition. The 6-3 right-wing majority can’t touch the Remington settlement, but it takes little imagination to guess how it would rule if a similar lawsuit crossed its radar. Besides, the gunmakers can always devise new ways to advertise their deadly goods so as not to run afoul of other states’ laws.
Nevertheless, if the settlement in Connecticut makes it even a wee bit harder for some loser somewhere to attain his “man card,” then perhaps some innocent lives will be saved. As Joseph Marshall III, a Native-American historian, has wisely remarked, “Success is rarely the result of one swell swoop, but more often the culmination of many, many small victories.” On the gun violence front, may we celebrate many more.