Renato Mariotti is the Legal Affairs Columnist for POLITICO Magazine. He is a former federal prosecutor and host of the “On Topic” podcast.

After this weekend’s mass shootings in Texas and Ohio, pressure to reform gun laws has focused on Congress—and, as usual, Congress seems stymied about what to do. But with far less attention, an important strand of the debate has now landed in the Supreme Court.

Last week, the gun-maker Remington, which had annual sales of approximately $600 million in 2017, asked the Supreme Court to overturn a Connecticut decision that gave Sandy Hook families the ability to sue the company over the way it marketed the weapon used in the 2012 school massacre.


The ability to bring suits against gun manufacturers would give American citizens a powerful tool to hold gun-makers liable for the damage their weapons cause—much as cigarette companies were vulnerable to suits for the harms of tobacco. It’s not clear whether John Roberts’ court will take the case, and if it does, whether it will side with the families or uphold protections that gun-makers have enjoyed since the Bush administration.

At issue is a 2005 law called the Protection of Lawful Commerce in Arms Act, which gives gun manufacturers and dealers immunity from the vast majority of lawsuits that could be brought as a result of crimes committed with their firearms. NRA Executive Vice President Wayne LaPierre called it “the most significant piece of pro-gun legislation in twenty years.”

He was right that the law would be a boon to gun manufacturers and dealers. Federal appeals courts in New York and California concluded that the law precluded lawsuits under New York and California law. Federal courts in D.C. and Colorado—along with state courts in Alaska, Illinois and Missouri—also held that the law barred suits against the gun industry.

But the Connecticut case dramatically expanded an exception to the PLCAA. Earlier this year, the Connecticut Supreme Court ruled in a 4-3 decision that the estates of victims of the Sandy Hook massacre could sue the manufacturer of the assault rifle used by the man who murdered them under state law because it advertised its product in a manner that could promote mass shootings, such as its slogan, “Forces of opposition, bow down. You are single-handedly outnumbered.”

Remington asked the U.S. Supreme Court to overturn the decision. As lawyers for the gun manufacturer note, the Connecticut Supreme Court decision is at odds with other rulings that have read the immunity law more broadly.

The case is currently stayed pending Supreme Court review, and we won’t know whether the Supreme Court will take the case for months. But in the meantime, gun manufacturers face new suits, including one from the victim of the Las Vegas massacre. While victims continue to try to bring new suits, the immunity law makes it extraordinarily difficult for them to obtain relief.

Most businesses don’t have the broad immunity that Congress gave to the gun industry. In the past, litigation, or the threat of it, has provided a powerful motivator to industry to change its practices in dramatic ways. The threat of lawsuits after a slew of hijackings in the 1970s caused the airlines to beef up security. More recently, tobacco companies paid hundreds of billions of dollars in settlements and agreed to broad limits on their advertising in order to settle cases brought by over 40 states.

These aren’t the only industries to take action in response to lawsuits. All of us have seen warning labels on products, or read about massive settlements, such as the recent $1.4 billion settlement by an opioid manufacturer.

And prior to 2005, it had even happened with the gun industry. Less than 20 years ago, President Bill Clinton negotiated a settlement with gun manufacturer Smith & Wesson under which the manufacturer agreed not to manufacture firearms that accepted large-capacity magazines like the 100-round magazine used by the gunman in the Dayton, Ohio, shooting this past weekend.

Smith & Wesson also agreed not to sell firearms to dealers unless they agreed not to sell large-capacity ammunition magazines or semiautomatic assault weapons and to refrain from selling to gun shows unless every seller at the gun show conducted background checks.

At the time, this looked like a good deal for Smith & Wesson. Gun manufacturers faced suits from the city of Chicago (eventually dismissed in 2004) and other state and federal lawsuits. Facing the potential of massive liability, agreeing to modest reforms was good business.

Yet today, Congress has failed to pass reforms as extensive as the modest restrictions agreed to in the Smith & Wesson settlement. The Bipartisan Background Checks Act of 2019, which requires universal background checks, passed the House with only five Republican votes, and Senate Republicans refuse to bring it to the floor for a vote.

Ironically, the last time Congress achieved any semblance of bipartisanship on this issue was to protect the gun industry from lawsuits by victims.

The immunity law exempts gun manufacturers and dealers from almost all lawsuits, with a few narrow exceptions, such as suits based on design defects. There is an exception for advertising that caused death or injury, but it is limited to cases where the advertising violated a separate statute and the violation of the statute caused the harm. It’s hard to fit a lawsuit into one of these narrow exceptions. So while gun manufacturers and dealers can still be held liable for defective products, the law immunizes them from the type of wide-ranging lawsuits that brought the tobacco industry to heel.

Although the Supreme Court decides to hear relatively few cases, I would not be surprised if the Court took this case and reversed the Connecticut Supreme Court, particularly given the recent appointments of Justices Neil Gorsuch and Brett Kavanaugh, who have taken an expansive view of gun rights. For example, in a 2011 case, Kavanaugh was the lone judge on a federal appeals court panel to conclude that an assault weapons ban would be unconstitutional.

If SCOTUS strikes down the Connecticut court, then the only possibility of undoing the PLCAA immunity will rest with Congress itself. In theory, this should be an easy argument to make. Gun manufacturers and dealers should have to defend themselves in court like every other American.

When a manufacturer of automobiles or pharmaceuticals engages in deceptive advertising, they’re brought to court. Why should manufacturers of assault weapons be any different? The law itself cites “abuse of the legal system” and “burdens” on commerce, but judges police lawsuits, and suits against gun manufacturers don’t burden commerce any differently than lawsuits against automakers.

Other arguments for this immunity cited in the law are the need to preserve “access to a supply of firearms and ammunition for all lawful purposes” and to “protect the First Amendment rights” of gun manufacturers and dealers. Yet there are more guns than people in the United States, with over 393 million guns in civilian possession, almost half the entire global supply. There is no need for a special law to aid firearm sales, and the gun lobby’s First Amendment rights are well-protected.

While Congress debates modest reforms that Senate Republicans continue to block, the most effective path to reform is to repeal the special-interest bill giving immunity to gun manufacturers and dealers. If gun victims don’t have a good case, they’ll lose in court. But the threat of lawsuits by gun victims could generate reforms that would far outpace congressional inaction.