One of the nation’s leading gun companies will be able to argue its case against New Jersey after a panel of federal judges reinstated their suit on Thursday.
The Third Circuit Court of Appeals ruled Smith & Wesson’s claims New Jersey violated its First and Second Amendment rights could be heard in federal court. That reverses last year’s ruling from District Court Judge Julien X. Nealsm, a Biden appointee, which threw the case out. Federal courts will now decide whether the gunmakers claim New Jersey’s attempt to subpoena its advertising records are a violation of the Constitution hold water.
The appeals court unanimously found Judge Neals should not have dismissed the case because the case did not meet the requirements for federal courts to defer to New Jersey state courts on the Constitutional questions. It said the case did not fall into the carve-outs created by previous decisions,
“Federal courts owe due respect to state courts. Yet the Supreme Court has cautioned that abstention is appropriate only in “exceptional” cases,” Judge Thomas Hardiman wrote for the opinion of the court. “This case does not meet the carefully delineated criteria for abstention established in Sprint.”
New Jersey Acting Attorney General Matthew Platkin has not filed any charges against the gunmaker. However, he is continuing an investigation over whether their advertising could be considered a violation that was started by former Attorney General Gurbir Grewal. The state appears to be attempting a similar strategy to the one used by the relatives of Sandy Hook victims in their suit against the former Remington Outdoors Company. The claims center around the idea that the companies’ advertising may violate state law, allowing plaintiffs to pierce the liability protections offered by the federal Protection of Lawful Commerce in Arms Act.
The recent $73 million settlement between the Sandy Hook families and the insurers for the defunct Remington Outdoors Company was a partial win for this strategy even though it did not result in a legal ruling and precedent. However, the newly-revived Smith & Wesson federal suit could prove to be a significant setback for it if the court sides with the gunmaker on the merits of the case.
Leland Moore, a spokesperson for Platkin, told The Reload the ruling has no impact on the state’s investigation of the gun company.
“Nothing about today’s decision impacts our ongoing investigation into Smith & Wesson, which we’re committed to following through, wherever the facts lead,” he said. “While the company’s lawsuit may proceed on procedural grounds, we are confident that its claims will eventually be rejected, just as they already have been by a state court judge.”
A concurrence by Judge Paul Matey signaled the case could be an uphill battle for Platkin, though. Especially if it makes its way back to the appellate court level.
Judge Matey, a Trump appointee, argued the case presents “novel questions at the crossroads between the guarantees in the First and Second Amendments,” and New Jersey’s investigation was troubling. He noted the Consumer Fraud Act the state is investigating Smith & Wesson under is over 60 years old and the state has regulated firearms for centuries, but this is the first time it has employed the novel approach of investigating a gun company for violating it.
“[F[or the first time, the State seeks to apply the Consumer Fraud Act to supplement these specific restrictions, waving aside concerns about the protections of the First and Second Amendment rights of New Jersey residents in, as always, the name of ‘safety,'” Matey wrote. “It is a well-traveled road in the Garden State, where long-dormant regulatory powers suddenly spring forth to address circumstances that have not changed.”
Matey argued the way the state’s investigation focused on vague complaints about generic terms or aspiration claims used in Smith & Wesson advertising could chill the speech of all kinds of people and companies in the firearms industry. He said he suspects that “might be the whole point” of the investigation.
“Future firearms instructors, fearing the arrival of subpoenas, might decide it is not worth advertising their services for ‘safety’ training,” Matey wrote. “Maybe range operators, sporting clubs, or hunting lodges, recalling some dusty pamphlet mentioning their attention to ‘safety’ will weigh waiting for investigators against early retirement. And almost certainly, every shop-owner stocking firearms for ‘self-defense’ or personal ‘safety’ can begin planning for periodic advertising inspections from the Attorney General. . Perhaps publishers will be punished too, with outdoor magazines thinking twice before speaking about the content of a product.”
He further accused New Jersey of being “misleading” in their court filings by only partially quoting a Smith & Wesson advertisement in a way that changed its meaning. He said that tactic put the state’s efforts into question.
“That less-than-forthcoming approach to litigation suggests that careful review of New Jersey’s entire investigation is warranted,” Matey wrote.
Ultimately, Matey argued, the case is about protecting the Second Amendment rights of Americans against state interference.
“New Jersey is free to experiment with the enforcement of its laws,” he wrote. “But the liberties reserved to the states by the Tenth Amendment do not negate the privileges reserved to the people, including ‘the widely accepted principle at the Founding that the right to self-defense derived directly from the natural right to life, giving the people predictable protections for securing the ‘Blessings of Liberty.’”
