Could the manufacturer of the gun used in the tragic Sandy Hook shooting be sued? That’s what’s at stake in a new case that the Supreme Court has been asked to hear. Heritage Foundation legal expert Amy Swearer breaks down this case, plus what needs to be done to make our schools safe. Read the transcript, posted below, or listen to the podcast:

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Rachel del Guidice: Remington, a gun manufacturer in North Carolina, is asking the U.S. Supreme Court to hear their case after the Connecticut Supreme Court ruled that the manufacturer could be held liable for the deaths at Sandy Hook since the shooter used a Remington gun.

We are joined today by Amy Swearer, a senior legal policy analyst at the Meese Center for Legal and Judicial Studies at The Heritage Foundation. Amy, can you unpack this lawsuit for us?

Swearer: I think that the first thing that’s important to keep in mind here is that none of this really had to do with the merits of the case. So the Connecticut Supreme Court did not say that Remington was liable for anything, that they did anything wrong.

What this really boils down to is a question of whether the plaintiffs, who are all families of individuals who were killed at Sandy Hook, whether those plaintiffs can even sue Remington to begin with.

In 2005, Congress passed a statute called the Protection of Lawful Commerce and Arms Act. And basically what that statute did was say that there is a blanket ban on the ability of private individuals to sue gun manufacturers or gun dealers for times when other individuals unlawfully use those guns. Now there are several exceptions to that, and we’ll get into that in a second, but basically there’s this blanket ban of these types of lawsuits.

So the Sandy Hook plaintiffs tried to bring this suit in state court in Connecticut and, of course, right away Remington said, “Well, you can’t do this. Congress has said these types of lawsuits are prohibited.”

So going forward this entire string of cases has been about whether this type of lawsuit is the type of lawsuit that Congress said can’t be brought in the first place. So I think that’s important to keep in mind, that this has not been in any way, shape, or form about whether Remington is liable. It’s about whether we can even get to that next step.

Kate Trinko: Do you think the Supreme Court will agree to hear this case?

Swearer: There’s a good chance that it will. And part of that has to do with the way that this Connecticut state court ruling kind of undermines federal law. It was very clear when Congress passed this law in 2005 that it intended to stop what it called predatory, politically motivated lawsuits because the gun industry is a lawful industry.

As a policy matter, Congress wanted to stop these types of lawsuits against a lawful business as a means of politically hitting them and making them defend themselves hundreds, thousands of times in court, because it just stymies the entire business.

Because of how this ruling undermines literally the entire premise of the bill, there is a good chance that the Supreme Court will take it on, because it’s a matter of a state essentially saying, “Well, we are going to interpret exemptions in this statute to undermine the entire thing.” So you have a bit of federalism there, you have what I would consider a blatant disregard of the meaning of the statute.

The Supreme Court hasn’t taken a case about this statute before, but it seems like this would be a good time for it to do so.

del Guidice: You mentioned that the Supreme Court hasn’t taken cases like this before, but are there any indications or past writings or just things that you have seen that might indicate how the Supreme Court may choose to handle this case if they do take it up?

Swearer: I think the biggest thing is, actually, you know now that we have a number of justices who care about originalism and care about the meaning of the law at the time it was passed, that it continues to be the meaning of the law. We can’t, as judges, just decide, “Well, this is bad public policy, so we’re going to change the meaning of the law judicially.”

And because that’s what happened here, I think there’s a good chance that you will see at least four or five judges who will look at the legislative history, who will look at the clear congressional intent, who will look at even just the way that the exemption is laid out in the statute to say that this type of lawsuit is clearly, unequivocally the type of lawsuit that Congress was trying to prevent.

It is essentially blaming the gun industry for the unlawful actions, the unlawful criminal actions of a third person. The gun industry, in and of itself, did nothing wrong here. So I think that is clearly the indication of where the court might go with this.

Trinko: And what are the possible ramifications in this case for gun businesses? Also, would gun owners potentially be effected, or would they not be?

Swearer: The big problem with this case is that it essentially gives a roadmap for other states such as New York and California—who are very much not friendly toward the gun industry—to enact similar types of statutes and use those state statutes to undermine the federal statute.

So what you could see is this law being undermined in just the way it’s interpreted in the states, to an extent that the flood gates of litigation kind of open again. So that all it takes is someone to file suit in Connecticut or another anti-gun state that has interpreted the law this way, and all of a sudden all of the protections that Congress enacted in 2005 to prevent these types of lawsuits no longer matter. And so they’re getting sued left and right.

Or again, these same types of politically motivated, vindictive, anti-gun-type lawsuits.

del Guidice: Are there any other industries that are held responsible in crimes? For example, have car companies ever been responsible for accidents caused by drivers?

Swearer: … There’s no similar type of law like the lawful protection of commerce and arms law for the vehicle industry. But generally speaking, the way that these sorts of liabilities work is that they never get to it on the merits. So they’re allowed to bring those suits, but ultimately speaking, you know you have to be able to show that the car manufacturer did something wrong. And that by doing something wrong it caused that injury.

You can’t just say, for example, with a car manufacturer, you created a car that could be used to commit a drunk driving incident, and so therefore you’re liable.

[That’s] a general rule [for] manufacturers of lawful products, regardless of what it is—whether it’s firearms, whether it’s cars, whether it’s baseball bats—unless there is something more, where they were specifically marketing it with an advertisement like, “Yeah we want you to drink and drive in this car,” they’re not held liable, just as a general manner of that’s not how civil liability works.

But what Congress actually did here is enact a law to say, “This is so politically motivated, and this is so clearly trying to stymie a lawful industry, that we’re not going to allow you to bring those lawsuits anymore.” Because the gun industry was being targeted in a way that other industries were not.

Trinko: You brought up advertising, and, unlike you, I am not a legal scholar, but my understanding of this case is it hinges not so much on that … the Remington gun was used in Sandy Hook, but advertising Remington put out, I believe, describing the gun as a combat weapon or something to that effect incited the Sandy Hook shooter is the idea. Is there any legal precedent for looking at advertising this way? How does that shake out?

Swearer: Essentially, one of the exceptions to this federal law is that if you as a gun manufacturer break a state or federal law regarding sales or advertising, you can be held liable for that. So, as you implied there, the plaintiffs are saying Remington violated a Connecticut state statute regarding marketing and because they violated that statue, we’re saying that’s the cause of injury, and so we can bring suit.

The problem is, this statue in Connecticut is so vague you don’t even have to necessarily break an existing law to violate the statue. You just have to have a commissioner find that you violated public policy, or something you did was immoral with the advertising.

Essentially what they’re arguing is by advertising the gun in a lawful way with people using it lawfully, just holding Remington rifles, that this somehow induced people to believe that they wanted you to use this to attack civilians.

It’s kind of this convoluted reasoning where they’re trying to say that they argued, or they’re trying to argue, that they violated this marketing statute because advertising the guns just in a normal way was against public policy and was bad and immoral.

So again, it’s this weird scenario where it is the exact opposite of what Congress intended from these exemptions. For example, these exemptions were supposed to be for if Remington were to have advertised the gun as, “You can fire 500,000 rounds before it ever malfunctions, we guarantee it.” And low and behold, it just never fires at all. You could sue them for the liability of false advertising essentially.

Or if, for example, a gun store did not keep adequate records or sold to felons knowingly, that absolutely violates a federal law. And if that felon then went on to commit a crime, yes, we all agree the gun store should be held liable because the gun store did something objectively wrong, objectively against the law.

But the way that Connecticut has interpreted this statute kind of takes all of that objective reality away and essentially gives the state the power to say, “Well, … it was lawful, what you did was not against the law, but we didn’t like the way you advertised this, so now you can be held liable for really anything that goes wrong with your guns.”

Trinko: Obviously, this brings up Sandy Hook, which, it’s incredible that it’s now been seven years. But we’re still dealing with school shootings and a lack of safety at schools. And obviously, this is a very complicated picture, this is a very complicated topic, but big picture, what can we do in school safety?

Swearer: There’s a number of things that we can do from a standpoint of school safety. First, let me be clear, I cannot imagine what these family members from Sandy Hook must be going through. They have suffered incredibly. It’s natural to look for justice, especially when the individual who actually committed the crimes is not available to have justice administered to.

I think in reality what we have to look at here is that for 10 minutes that individual was able to have free rein to harm those students. It was 10 minutes before the first 911 call to when police entered that building. And at that point, frankly, it doesn’t matter what type of weapon you have. When evil is unopposed for that long, it’s problematic.

So one of the first things we have to look at doing is ensuring that we are protecting our nation’s students in the same way that we protect our nation’s celebrities.

That can look different depending on the context of the school. It might include having armed security on campus, it might include other measures, but that is definitely one aspect of it. I think the other aspect is looking at mental health and looking at these warning signs.

It is very, very rare that we have these types of incidents where people were just shocked and had no idea that this person was capable of committing violent acts. Because most of the time you have individuals who, for example, in Parkland, were going on YouTube and posting, “I’m going to be a school shooter.”

There are so many warning signs and being able to distinguish those warning signs and to intervene before deadly situations happen is also very critical. So I think when you combine those two things together, that is definitely where we have to start looking at school safety and not blaming a lawful industry for the ways in which their lawful products are misused.

del Guidice: Amy, thank you so much for joining us today.

Swearer: Thank you for having me.