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OSD 129: The lawsuit accusing gun makers of complying with the law
On Brady and the Mexican government's ambitious legal judo.
In OSD 128, we wrote about how state governments and gun control groups are using lawsuits negligence and product marketing to make an end run around the PLCAA. This past week added some fuel to that fire.
First, this was the stated strategy of a meeting of seven state attorneys general at the White House:
The New York law is what we wrote about last week, and it’s particularly relevant since the NY Attorney General has been open about that strategy:
But the best explanation of this strategy in the past week wasn’t from politicians’ Twitter accounts or in OSD 128. It was in a lawsuit filed by the Mexican government. From the New York Times piece on the suit:
The lawsuit, filed in federal court in Massachusetts, was the first time that a national government has sued gun makers in the United States, officials said. The suit accuses the companies of actively facilitating the flow of weapons to powerful drug cartels, and fueling a traffic in which 70 percent of guns traced in Mexico are found to have come from the United States.
“For decades, the government and its citizens have been victimized by a deadly flood of military-style and other particularly lethal guns that flows from the U.S. across the border,” the lawsuit reads. The flood of weaponry is “the foreseeable result of the defendants’ deliberate actions and business practices.”
The government cited as an example three guns made by Colt that appear to directly target a Mexican audience, with Spanish nicknames and themes that resonate in Mexico. One of them, a special edition .38 pistol, is engraved with the face of the Mexican revolutionary hero Emiliano Zapata and a quote that has been attributed to him: “It is better to die standing than to live on your knees.”
And then this important bit of context towards the end:
The Mexican government is being represented by lawyers from Hilliard Shadowen, a Texas law firm specializing in class-action lawsuits, and by Jonathan Lowy, chief counsel for the Brady Center to Prevent Gun Violence, the gun control organization.
The structure of the lawsuit is pretty simple. The table of contents categorizes the allegations one by one (excerpts below from the PDF of the court filing):
Defendants actively assist and facilitate trafficking through straw purchasing
Defendants actively assist and facilitate trafficking through multiple and repeat sales
Defendants actively assist and facilitate trafficking through kitchen-table sales
Defendants actively assist and facilitate trafficking through “missing” guns
Defendants actively assist and facilitate trafficking through gun shows
Defendants actively assist and facilitate trafficking by designing and marketing their rifles as military-style assault weapons
Defendants actively assist and facilitate trafficking by designing their guns to allow use by unauthorized persons
Defendants actively assist and facilitate trafficking by designing their guns to enable defacement of serial numbers
Defendants actively assist and facilitate trafficking by refusing to implement the reforms they know are necessary
Wow, sounds pretty serious! Let’s dive into the details on one of those to see the evidence. We’ll start with the “design their guns as military-style assault weapons” one:
Military-style weapons are useful for killing large numbers of people in a short amount of time, taking on well-armed military or police forces, and intimidating and terrorizing people. The Manufacturer Defendants designed their assault weapons to be effective people-killing machines.
Assault weapons have key features that distinguish them from traditional sporting rifles, such as the capacity to lay down a high volume of fire over a wide killing zone. This “hosing down” of an area is better suited for military combat than sporting guns. And civilian assault weapons have much less recoil than traditional sporting guns, facilitating quicker pulls of the trigger.
That’s a short excerpt of it, but the whole thing is copy-pasta of the old talking points about ARs. There are no specific allegations. They then zoom in on Barrett’s .50 cal rifles. Ok, maybe things will get more fresh with this more specific focus:
In 1999, the U.S. Government Accountability Office reported that Barrett’s .50 caliber rifles were linked to criminal misuse “with a nexus to terrorism, outlaw motorcycle gangs, international and domestic drug trafficking, and violent crime.” Gov’t Accountability Office, Criminal Activity Associated with .50 Caliber Semiautomatic Rifles 2 (1999).
Unsurprisingly, the exceptionally lethal .50 caliber rifle is regularly trafficked into Mexico to arm violent drug cartels.
According to a 1985 Secret Service report, “large caliber long range weapons pose a significant threat for U.S. National Command Authority figures.” The report warned that .50 caliber rifles are more accurate than shoulder-fired antitank rockets and, if used against aircraft, are immune to electronic counter measures. They also can be used effectively from places of concealment, outside the scope of normal security measures, against personnel, aircraft, lightly armored vehicles, and buildings.
Ok, “speculation from a Secret Service agent 36 years ago” isn’t the freshest argument, but hey, let’s keep going. The rest of this section of the suit accuses Century Arms of abiding by 922(r) rules, AR makers of building legal ARs, and generally blows the lid off of gun makers’ nefarious tactic of … complying with the law.
Let’s go to another section, maybe that’ll firm things up. How about the “designing their guns to enable defacement of serial numbers” section. That sure sounds spicy. It’s a short section, so we’ll quote it here in full:
To evade detection and investigation by law enforcement, criminals and the traffickers who supply them often obliterate or deface the serial numbers on guns.
Guns without serial numbers cannot be effectively traced to the last retail purchaser, and therefore can create a “cold trail” when law enforcement recovers a gun at the crime scene. Guns without serial numbers are therefore more attractive and marketable on the criminal market. Defendants know or choose to be willfully blind to these facts.
Defendants can make guns whose serial numbers cannot be obliterated or defaced,
or guns in which a hidden serial number will be hard or impossible for the criminal to detect. For example, years ago Beemiller d/b/a Hi Point Guns began including a second hidden serial number on some guns. In the 2000 Agreement, Smith & Wesson committed to the U.S. federal government that it would likewise include these features.
Many of Defendants’ guns have been trafficked to Mexico and recovered with obliterated or defaced serial numbers. Defendants nevertheless refuse to include non-defaceable or hidden serial numbers on all of their guns. This deliberate decision further facilitates, enables, and assists in the trafficking of their guns to Mexico.
That’s it. Defendants make their guns out of materials which are not — looks over the top of reading glasses — supernaturally impervious to all tools, therefore defendants are assisting drug cartels.
The rest of the lawsuit follows the same structure:
Explain an idea that gun control groups have been lobbying for for several decades.
Declare that gun makers are negligent for not embracing that idea.
Move onto the next idea and repeat.
But instead of asking a legislature to pass those ideas into law, this lawsuit asks a court to declare that they’ve been law all along.
The lawsuit itself is a shot in the dark, but that’s the point. Remember the dynamic we described last week in “OSD 128: Nobody needs an assault lawyer”:
People have cottoned onto the fact that this is an asymmetric game. And there are two asymmetries here:
In these lawsuits, it’s 10-100x cheaper to be a plaintiff than a defendant. Since running up costs is the goal, the rational strategy for the plaintiffs is to never not be filing lawsuits.
This is one of those “you have to stop 100% of my attempts, but I only need to sneak one through” games. If the PLCAA stops almost every lawsuit but an occasional court erroneously lets one slide, that’s enough. (See: the cost asymmetry in #1.) So again, the rational strategy for gun control plaintiffs is to spam the lawsuit button.
Brady’s chief counsel isn’t working on this lawsuit out of some new mission that the org has to combat Mexican drug cartels. They’re doing it because this de facto repeal of the PLCAA is a rational strategy for a gun control group, and in the Mexican government they have a fresh partner to help double down on it. The lawsuit doesn’t have to succeed. It just has to get expensive enough to make the defendants give up.
It’s a clever strategy. There could be a political counter to it whereby a new law stops this kind of weaponized fuddism. But politics are downstream of culture. So the more important thing is that the culture is strong enough to make the defendants not want to give up.
This week’s links
They make the good point that gunpowder is an archaic and tradeoff-laden technology. At the same time, there are some theoretical limits to current battery technology. A 16” MacBook Pro’s battery stores 360,000 joules of energy. A 55-grain 5.56x45mm round carries 1755 joules of muzzle energy. So even assuming a coilgun is 100% efficient at turning battery energy into bullet energy, you have a theoretical maximum of 205 shots per laptop-size battery. Not too practical today, but if you squint at it, you can see this getting pretty cool as the technology improves.
First-timers shooting guns
You’ll learn a lot by browsing the YouTube search results for “first time shooting a gun” every couple months. You’ll see a mix of excitement, nervousness, fear, misconceptions, and genuine curiosity. Basically the full range of things that are going through people’s heads the first time they go shooting. Useful recon for when you’re taking newbies out to the range.
Because of [a 2018 lawsuit by Andrew Roberts, a Hawaii resident seeking to overturn the state’s ban on tasers], a Massachusetts case and others, as of Jan. 1, 2022 it will be legal for private citizens in Hawaii 21 years of age and older to own a Taser and other electric guns. House Bill 891, signed into law July 1 by Gov. David Ige as Act 183, regulates the sale and use of electric guns and cartridges and repeals the ban on their possession, sale, gift, loan or delivery.
It was the Ige administration itself that asked for the enabling legislation. In its testimony in strong support of HB 891, the Hawaii Department of the Attorney General said it would “protect the health and safety of the public” by regulating the sale and use of the weapons.
The AG also explained that the constitutionality of Hawaii’s ban had been “drawn into question” by the U.S. Supreme Court’s 2016 decision in Caetano v. Massachusetts, which unanimously vacated the conviction of a woman who carried a stun gun for self-defense. The AG also specifically cited the Roberts case seeking to invalidate Hawaii’s electric gun ban, then pending in U.S. District Court for the District of Hawaii.
Yes, that Brady. Professor Yamane does a great job explaining gun culture to an unlikely audience.
The gun cases have become Benitez’s calling card, turning him into a polarizing figure: lionized by the firearms lobby as a hero unwinding onerous regulations, and vilified by advocates for stricter gun laws who say his interpretation of the 2nd Amendment is alarming and extreme.
After the assault-weapon ruling, Gov. Gavin Newsom excoriated Benitez as a “stone-cold ideologue” and a “wholly owned subsidiary of the gun lobby and the National Rifle Assn.,” comments that were criticized by multiple bar associations as personal attacks damaging trust in the judiciary.
Gun rights groups have hailed Benitez for what they deem an honest, clear-eyed approach to the law and an insistence that government lawyers prove that gun control measures actually work.
“He doesn’t take their word for something,” said attorney C.D. Michel, president of the California Rifle & Pistol Assn., who has had two of his lawsuits challenging gun laws decided favorably by Benitez. “You can’t just say, ‘This makes you safer’ — which is what politicians say in press conferences — but not have the empirical evidence to back it up.”
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