The Second Amendment Foundation (SAF) and National Rifle Association have filed an amicus brief in the U.S. Supreme Court case Daniel Defense v. Lowy, supporting petitioners’ request for review of a Fourth Circuit ruling.
According to a SAF news release, plaintiffs in the case seek to hold lawful firearms manufacturers liable for a third party’s crime on the theory that advertisements using military, patriotic, or law-enforcement themes promoted a “warrior mentality” and appealed to “militaristic fantasies.”
The U.S. Fourth Circuit of Appeals held that allegations the shooter was “exposed to and influenced by” such ads satisfy Article III standing.
However, according to the SAF/NRA brief, the plaintiffs have never so much as proven the suspect in the crime even saw the ads in question, let alone that he was influenced by them to commit a heinous crime. They contend, “Military themes have long accompanied civilian firearms commerce appropriately so, since the Second Amendment itself declares the necessity of the militia.”
“The exercise of the right to keep and bear arms has always had a synergistic relationship with military use of arms,” the brief adds. “In the colonial and Founding eras, militiamen had to provide their own arms, suitable for military use. Ordinary citizens also participated in law enforcement through the posse comitatus, watch and ward, and hue and cry. That tradition continued into the twentieth century. In both World Wars, states established home guards and volunteer units when regular forces were elsewhere. Congress, from 1903 on, promoted civilian marksmanship and authorized the sale of surplus service arms to the public a program that continues today.”
“This is not a new kind of speech. It is how Americans have sold and described arms since the Founding,” said SAF Director of Legal Research and Education Kostas Moros. “Traceability requires more than a distant ripple through someone else’s criminal choice. If commonplace military or law-enforcement themes in lawful advertising are enough for standing, every manufacturer becomes a defendant after a crime committed with a similar product.”
The same models sold to civilians such as Colt revolvers, Spencer and Henry rifles, Winchester lever-actions and others were also used by the military. For centuries advertisements have emphasized military adoption, combat imagery and readiness, from colonial muskets “fitted with bayonets,” through Colt’s battle-scene engravings, and Henry’s “Always Loaded and Always Ready” ad campaigns. Treating those ordinary themes as the cause of a third party’s independent crime would haul manufacturers into court after nearly every tragedy.
“Lawsuits that treat ordinary marketing as the cause of a third party’s crime threaten lawful arms commerce and the right that depends on it,” said SAF Executive Director Adam Kraut. “Lawmakers will stop at nothing to throttle the Second Amendment, even if it means trying to prove marketing campaigns are the reason people commit crimes. We feel this case provides the perfect vehicle for the Court to make clear that historically ordinary speech about lawful arms does not make people break the law.”
