Giffords Law Center

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Smith & Wesson Sues NJ Attorney General

December 16, 2020 by 5 Comments

Smith & Wesson filed suit against New Jersey Attorney General Gurbir Grewal yesterday. The suit is brought in US District Court for the District of New Jersey. It was brought in response to a fishing subpoena issued by Grewal’s office “seeking evidence of consumer fraud related to advertising.”

Smith & Wesson accuses Grewal of trying to suppress free speech.

Following in the abusive footsteps of these repressive regimes, the New Jersey Attorney General has taken a series of actions to suppress Smith & Wesson’s speech, and with the intention of damaging Smith & Wesson both financially and reputationally. The most recent such action is the issuance of an administrative subpoena (the “Subpoena”) on October 13, 2020 that allegedly seeks evidence of consumer fraud relating to advertising – but in reality, it seeks to suppress and punish lawful speech regarding gun ownership in order to advance an anti-Second Amendment agenda that the Attorney General publicly committed to pursue.

The lawsuit goes on to accuse Grewal of conspiring with “anti-Second Amendment Activists” such as Brady, Everytown, and Giffords to use the power of the courts and prosecutors to “name and shame” firearms companies such as Smith & Wesson. It mentions the proxy proposals brought by the Interfaith Center on Corporate Responsibility that would have hamstrung Smith & Wesson.

The complaint then goes on to accuse Grewal of working directly with FACT (Firearms Accountability Counsel Task Force) which is a tool of the “anti-Second Amendment Activists” to circumvent the legislative process:

It is against this backdrop of coordinating with anti-Second Amendment Activists to search for new theories to litigate the firearms industry out of existence, that the Attorney General issued his Subpoena against Smith & Wesson here. To this end, in addition to publicly partnering with anti-Second Amendment Activists, the Attorney General has also hired FACT
counsel, Paul, Weiss, Rifkind, Wharton & Garrison, LLP as his own counsel specifically to pursue firearms manufacturers, further solidifying the anti-gun agenda as his own.

The Attorney General’s actions surrounding the issuance of the Subpoena and initiating the related investigation are forcing Smith & Wesson to expend substantial financial resources, and are threatening to cause irreparable damage with key stakeholders and necessary business partners, and create reputational harm.

The Attorney General’s campaign to silence, intimidate, and deter Smith & Wesson and other Second Amendment advocates, gun manufacturers, and gun owners from exercising their constitutional rights, his consignment of the State’s prosecutorial authority to nongovernmental partisans, and the targeting of protected, disfavored speech, violate numerous provisions of the U.S. Constitution, including the First, Second, Fourth, Fifth, and Fourteenth Amendments.

By circumventing the legislature and the courts and, where possible, invading the board room, the anti-Second Amendment Activists disguise their true motives and avoid exposing their agenda to the robust political debate surrounding firearms in the United States. Their allies then use the issues that they create, to falsely foster with shareholders, business partners and other stakeholders a perception of unmitigated risk. Through these coordinated activities, in which the Attorney General and State of New Jersey now are complicit, the activists have denied and continue to deny Smith & Wesson any meaningful access to the only fora that can stop these illegal actions and protect Smith & Wesson’s rights.

Smith & Wesson lists 11 counts of violations. Among these are violations of the First and Fourteenth Amendment through unlawful viewpoint discrimination, restriction of political speech, and restriction of protected commercial speech. It also alleges violations of the Second and Fourteenth Amendment rights of both the company and its consumers. Finally, it says the company is protected the Protection of Lawful Commerce in Arms Act as well as the Dormant Commerce Clause meaning this is a matter for Federal courts and that state officials like Grewal are encroaching in Federal matters.

The lawsuit seeks both injunctive and declaratory relief as well as attorney fees along with anything else the court might deem “just and proper”.

The attorneys representing Smith & Wesson are all partners in the international law firm of DLA Piper. In one of those delicious bits of irony, this is the same firm where Douglas Emhoff, spouse of presumed VP-elect Kamala Harris, is a partner. Indeed, when you open up the list of the firm’s attorneys by “relevance”, he is the first one listed.

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A Great Example Of An Oxymoron

April 27, 2020 by

The Giffords Law Center to Prevent Gun Violence (sic), formerly known as Legal Center Against Violence, issued a press release on Friday that is a great example of an oxymoron. The release concerned Judge Roger Benitez’s grant of a preliminary injunction in Rhode v. Becerra.

The head line of the release read:

Second Amendment Experts Denounce Court Ruling on California Ammunition Background Checks

When I think of the term “Second Amendment Experts”, I think of legal scholars like David Hardy, Dave Kopel, Stephen Halbrook, Glenn Reynolds, Joyce Lee Malcolm, and many others in the field. These attorneys and historians have studied the origins of the Second Amendment from English common law onwards. Dave Kopel is one of the editors of the first legal case law text on the Second Amendment.

Hannah Shearer, Litigation Director for Giffords Law, with all due respect, is NOT a Second Amendment expert. She is an ideologue determined to subvert the standard model of the Second Amendment as well as to promote gun control. She does have a couple of law journal articles and did appear in a panel discussion at Campbell Law School.

https://www.commondreams.org/author/hannah-shearer

Those articles are the exception as her bio indicates:

She regularly provides information and commentary on the Second Amendment and state firearm laws to media outlets, and has been featured in the Los Angeles Times, US News & World Report, and VICE News, among many other publications.

I have no doubt that Ms. Shearer is an intelligent person with her degrees from Yale and Stanford along with a circuit court clerkship. That said, to put her in the same scholarly class with David Hardy or Dave Kopel is an insult to Messrs. Hardy and Kopel. To call her a Second Amendment expert is an oxymoron.

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Reactions, Pro And Con, To Connecticut Supreme Court Ruling

March 15, 2019 by 5 Comments

As you can well imagine the gun prohibitionists are ecstatic over the Connecticut Supreme Court’s constitutionally dubious ruling in Soto et al v. Bushmaster et al today. Both the Brady Campaign and the Giffords Law Center had filed amicus briefs in the case.

From the Brady Campaign which has been working hard to punch holes in the Protection of Legal Commerce in Arms Act for many years:

Justices have reversed a lower court ruling allowing the lawsuit to move forward and put the question to a jury of whether or not Remington and gun dealers can be held accountable for its role in the 2012 shooting. The lawsuit argues that the assault-style weapon used in the massacre had knowingly been marketed to the public despite being designed for military use. It is also argued that the weapon’s marketing deliberately appealed to young people, particularly those like the 20-year-old who killed 26 people in Newtown, Connecticut.


“This is a good day for justice and for victims of gun violence everywhere,” stated Brady President, Kris Brown. “The law requires everyone, particularly businesses, to operate in a way that will not cause foreseeable harm. It’s time for gun companies to be held to this same standard, and stop being allowed to put profits over people. Brady stands ready to continue our support of Sandy Hook families in their quest for justice.”


For 30 years Brady’s legal team has led the way in winning precedent setting cases that hold gun companies accountable for their role in gun crimes. These cases are reining in and challenging gun industry protection laws, and include a negligent marketing claim against the maker of an assault weapon used in a mass shooting in 1993. This case was discussed at length in today’s decision. Brady’s team provided advice and counsel to the Sandy Hook lawyers throughout the case, also filing an amicus brief in support of plaintiffs.


“We are happy that the Sandy Hook families will get the day in court they deserve. Companies that choose to market weapons of war to the public should not get a free pass from the duty to use the reasonable care that every other person or business must follow,” stated Brady’s VP of Legal, Jon Lowy. “It is unfortunate that the gun industry’s special protection law forced these grieving families to endure years of appeals to get what should be rightfully theirs — their day in court and an opportunity to prove their case. Thankfully this court recognized that if you unreasonably market weapons of war to the public, you can be held accountable for the consequences.”

Reader of this blog know that not one military in the world has adopted the semi-automatic AR-15 or its progeny for use. Calling it a “weapon of war” and “designed for military use” is an outright lie and both Brown and Lowy know it.

Likewise, the Cult of Personality’s Legal Arm otherwise known as Giffords Law Center to Prevent Gun Violence has weighed in on the ruling with a comment from Adams Skaggs who is their chief counsel.

“Today’s decision is a victory for the families of Sandy Hook and a victory for the principle that no industry is above the law or above accountability. The Connecticut Supreme Court squarely rejected the idea that any industry, no matter how powerful, can slam the courthouse doors shut to the victims of their illegal marketing practices. Now, these families who suffered so much will have the day in court they rightly deserve. We look forward to working with them as this case moves forward, and to supporting all victims of American gun violence as they pursue justice.”

Understandably, those who stand for the rule of law and the recognition that the liability for the criminal misuse of any legal product lies with the criminal were not pleased with this ruling.

Alan Gottlieb of the Second Amendment Foundation responded strongly saying, in part:

“This ruling strains logic, if not common sense,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The court dismissed the bulk of the lawsuit’s allegations, but appears to have grasped at this single straw by deciding that the advertising is somehow at fault for what did that day in December more than six years ago.


“This is like suing Ford or General Motors because a car they sold was stolen and used to run over a pedestrian all because the car manufacturers advertised that their car had better acceleration and performance than other vehicles,” he added.


, 20, first killed his mother and took her legally-purchased Bushmaster rifle to the school, where he murdered 20 youngsters and six adults. The lawsuit contends that Remington’s advertising was designed to glorify the Bushmaster rifle and enhance its appeal to younger consumers.

Justice Richard Palmer, writing for the majority, said that the “regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the state’s police powers.”


“That is absurd in this case,” Gottlieb observed. “Did the advertising even remotely suggest that the Bushmaster is best for murdering people? It appears to me like the court was looking for a way to squeak around the provisions of the Protection of Lawful Commerce in Arms Act that Congress passed in 2005. After all, the court dismissed most of the allegations, but now has decided that advertising might be at fault. That’s a stretch of credulity worthy of surgical elastic.”


“There is no evidence the killer was driven by any advertising whatsoever,” he said. “This is an affront to the First Amendment as well as the Second. Even hinting that the killer was motivated in some way by an advertising message is so far out in the weeds that it may take a map for the court to find its way back.”

The National Shooting Sports Foundation, which is located in Newtown, Connecticut and whom is the actual lobby for the firearms industry, also disagreed with the majority’s opinion in the ruling. While a bit more circumspect that the SAF’s comment, it still expresses their displeasure.

NEWTOWN, Conn. – The Connecticut Supreme Court today reversed (4-3) a state Superior Court ruling and decided in Soto v. Bushmaster that the case can go forward based on the plaintiffs’ allegation that the defendants marketing and advertising of a legal product somehow violated Connecticut’s Unfair Trade Practices Act (CUTPA). The Court’s split decision held that CUTPA fit within an exemption to the federal Protection of Lawful Commerce in Arms Act (PLCAA) that permits lawsuits where the defendant violated a statute applicable to the sale of firearms. In a strongly worded and well-reasoned dissent, Chief Justice Robinson rejected the majority’s overly broad interpretation of the scope of the limited exception, which is contrary to legislative text, canons of statutory interpretation and the legislative history of the PLCAA. The majority’s decision today is at odds with all other state and federal appellate courts that have interpreted the scope of the exception. As the trade association for the firearms industry, the National Shooting Sports Foundation® filed an amicus brief in support of the defendants in this case and both respectfully disagrees with and is disappointed by the court’s majority decision.

Finally, from what I can tell from an internet search, neither Cerberus Capital Management nor Remington Outdoor Company have issued statements.

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Plain Meaning Of Statutory Terms? I Don’t Think They Understand The Term

March 12, 2019 by 1 Comment

The Giffords Law Center to Prevent Gun Violence, otherwise known as the Cult of Personality’s Legal Arm, has filed a notice that they will be filing an amicus brief in Guedes et al v. BATFE et al. This is the bump stock ban case that is on appeal to the US Court of Appeals for the DC Circuit after the denial of a temporary restraining order. The amicus brief will be in support of the government’s position.

Pursuant to D.C. Circuit Rule 29(b), Giffords Law Center to Prevent Gun
Violence (“Giffords Law Center”) hereby gives notice that it intends to file a brief
in this matter as amicus curiae in support of Defendant-Appellees. Giffords Law
Center focuses specifically on firearms policy and the plain meanings of statutory
terms, highlighting Appellants’ reasoned approach to and the pressing need for
bump stock regulation. All parties have consented to the filing of this brief.

Beyond the fact that the BATFE are the appellees and this notice highlights”Appellants’ reasoned approach”, to say that Giffords Law Center focuses on “the plain meanings of statutory terms” is an oxymoron. The National Firearms Act is clear on the definition of a machine gun and the BATFE’s own expert from the Firearms Technology Division Richard Vasquez got it right when he said bump stocks were not machine guns.

The rule from BATFE and the DOJ justification of it were made up from whole cloth. Both the NFA Handbook and ATF Ruling 2006-2 are clear on the definition of a machine gun and a bump stock doesn’t meet that definition. Congress was clear in what they meant in their definition of a machine gun and that is the real plain meaning.

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And Now The Reactions From The Prohibitionists, Part 3

July 10, 2018 by 1 Comment

Let it not be said that the cult of personality known as Giffords would be left out of making their opposition to Judge Brett Kavanugh known. While I may have serious doubts that Ms. Giffords actually wrote her piece in opposition, it does go out over her name.

From Giffords and Giffords Law Center:

July 9, 2018 — Giffords, the gun safety organization founded by former Congresswoman Gabrielle Giffords and Captain Mark Kelly, released the following statements after the announcement of President Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court following the retiring of Justice Anthony Kennedy.

Former Representative Gabrielle Giffords:

“In nominating Judge Kavanaugh to be the next Supreme Court justice, the Trump Administration is once again showing brazen disregard for the people it claims to protect. Judge Kavanaugh’s dangerous views on the Second Amendment are far outside the mainstream of even conservative thought and stand in direct opposition to the values and priorities of the vast majority of Americans. America needs a Supreme Court justice who respects the Second Amendment but who also realizes reasonable regulations that reduce gun violence do not infringe on anyone’s constitutional rights. But that’s not the kind of justice President Trump nominated today.

“America’s gun violence epidemic weighs daily on the minds of so many families in our country. Parents live in fear of hearing their children describe to them what it’s like to go through an active shooter drill. Too many people in communities across the country live in fear of being shot in their neighborhoods. In states across the country, students and voters have been speaking up, taking to statehouses, and demanding that lawmakers pass effective gun safety legislation. Their advocacy is delivering results: just since the massacre in Parkland, more than 50 gun safety bills have passed in 26 states. Should the Senate confirm the nomination of Judge Kavanaugh, we have every indication to believe that he will prioritize an agenda backed by the gun lobby, putting corporate interests before public safety. Make no mistake, the progress we’ve achieved passing firearm laws that save lives every day will be in serious danger.”

Hannah Shearer, Staff Attorney and Second Amendment Litigation Director at Giffords Law Center

“Judge Kavanaugh has expressed a dangerous hostility toward reasonable gun regulations and made clear he believes the government’s power to address gun violence is extremely limited. Judge Kavanaugh rejects the idea that courts should consider public safety when judging gun cases and would strike down bedrock gun laws like those that restrict civilian use of the dangerous, military-style weapons regularly used in mass shootings.

“Even Justice Scalia, one of the most conservative Supreme Court justices in modern history, endorsed reasonable firearm regulations like the ones Judge Kavanaugh would strike down. Judge Kavanaugh’s positions on the Second Amendment are outliers far outside the mainstream, and confirming him to the Supreme Court could negatively impact efforts to fight gun violence for many years to come. The notion of Judge Kavanaugh serving on our nation’s highest judicial bench should worry Americans who care about the safety of their families and communities. Now is the time for them to speak up and demand a nominee who will respect centuries of American legal tradition, recognize that gun rights have always gone hand-in-hand with responsible regulations, and put the life and liberty of all Americans ahead of the interests of the gun lobby.”

Since District of Columbia v. Heller was decided by the Supreme Court ten years ago, the lower courts have overwhelmingly upheld reasonable gun safety laws more moderate than the handgun ban Heller invalidated. The United States Supreme Court has not granted review in a significant Second Amendment case since Heller and its companion case, McDonald, and they have denied review in more than 80 cases. The confirmation of Judge Kavanaugh could mean that the Supreme Court intervenes more in these lower-court cases and overturns decisions that have consistently protected public safety.

In the near future, the Supreme Court may have the opportunity to rule on a variety of Second Amendment issues that are pending in the lower courts. For example, a series of NRA-backed lawsuits were filed this spring to challenge strong concealed carry permitting laws in New Jersey, Maryland, and New York. The NRA has also filed or supported a number of suits challenging critical gun safety measures adopted after the Parkland massacre, including laws that restrict access to the large capacity magazines used in Parkland and other mass shootings. Any one of these cases could be the next major Second Amendment case to reach the Supreme Court, with critical implications for public safety.

Frankly, I do hope Hannah Shearer is correct in her assumption that the Supreme Court might finally start hearing Second Amendment cases. Their failure to do so merely has encouraged judges in lower courts who disagreed with Heller to ignore that opinion and to use the Supreme Court as a doormat.

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The Follow-Up Question 60 Minutes Should Have Asked

February 12, 2018 by 3 Comments

I just finished watching Steve Kroft’s report on the battle for concealed carry reciprocity on 60 Minutes. I would suggest everyone either watch it or read the transcript. The episode was better than I hoped though you still could hear the sneer in Kroft’s voice when he asked Tim Schmidt if you should be allowed to carry “anywhere”. Schmidt, to his credit, gave a one word answer – “yes”.

One of the people interviewed was Robyn Thomas of the Giffords Law Center who is adamantly opposed to carry reciprocity. Trying to make a point on how much stricter a may-issue state like California is on who gets a permit, she said:

Someone who lives in Nevada, who’s able to carry a loaded, concealed weapon in Nevada could now bring that loaded gun into Los Angeles, into San Francisco, and carry their loaded weapon, even though in San Francisco that’s not someone who would get a permit.

 Kroft’s follow-up question was a softball asking wouldn’t reciprocity “usurp” the gun laws of anti-gun places like New York, LA, and Chicago. This brought the expected “yes” answer.

The question that should have been asked – and the responsible question to ask if one wasn’t biased – is how many carry permits have been issued in San Francisco. While I had a good idea it was a slim number, I reached out to Brandon Combs of the Firearms Policy Coalition and Cal-FFL to get an accurate answer. According to him, historically, the total number for both San Francisco city and county for the last two decades has ranged between 0 and 15.

Think about that. In a city and county (they are coterminous) of approximately 800,000 residents, at most 15 permits have been issued at any one time. In other words, unless you are the most connected person in San Francisco, you are not getting a permit.

Moreover, while San Francisco, Los Angeles, and San Diego issue very few, if any, permits, there are approximately 90,000 permits in California. Many of these are issued in a virtually shall-issue manner by a number of other California counties. These permit holders are legally able to carry in any city or county in the state including both LA and San Francisco.

Never forget that our civil rights opponents and their media allies will shade the truth when it serves their purpose. Robyn Thomas did it in the interview and Steve Kroft perpetuated it by not asking the questions that should have been asked.

UPDATE: Professor David Yamane details his experiences when he asked about getting a carry permit in San Francisco back in 2013. He knew the answer going in but thought he’d ask anyway.

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Making Gun Control A Cult Of Personality

October 18, 2017 by 4 Comments

First there was the National Council to Control Handguns which became Handgun Control, Inc. for the next 20 years. Eventually this morphed into the Brady Campaign to Prevent Gun Violence. In making this name change in 2000, Handgun Control, Inc. did two things. This helped to soften their image from control to merely prevention. Just as importantly, by deciding to rename the organization after Jim and Sarah Brady, HCI was aiming to make sympathetic figures the face of gun control.

Now that the Bradys have passed away, gun control needs to regain its cult of personality. Mike Bloomberg is not sympathetic nor is home-wrecking, socially and politically ambitious Shannon Watts. However, Gabby Giffords does make a sympathetic figure.

Playing up this cult of personality was the announcement today that Americans for Responsible Solutions will now just be called Giffords. The Law Center to Prevent Gun Violence (sic) which used to be known as the Legal Center Against Violence will now be the Giffords Law Center. Finally, their PAC will be known as Giffords PAC. Giffords is also now subtitled, “Courage to fight gun violence.”(sic)

From their press release:

“Addressing a problem that almost took my life will be the cause of my life,” said Congresswoman Gabby Giffords upon the announcement of her namesake gun violence prevention organization. “I’ve seen great courage when my life was on the line. But I’ve also seen great courage as we’ve fought to save lives from gun violence. Every day I meet brave Americans who are standing with me in the fight for a safer future—from law enforcement officers and military veterans, to parents, community leaders, and concerned voters. When we stand together, stand up for our children, and use the full power of our voices and votes, I know that we can make change happen.”

“When people think of Gabby, they think of courage, determination, and grit—and it’s exactly those characteristics Americans need to channel in order for us to save lives from gun violence and make our communities safer,” said Captain Mark Kelly, co-founder of Giffords. “When Gabby and I began this journey, we knew this wouldn’t be an easy fight. The gun lobby has been selling a message of fear to the American public for years. It’s used its money to scare lawmakers into following its extreme ideology—and it’s made talking about guns culturally divisive, despite the fact that the majority of gun owners support stronger gun laws. A safer America requires changing that dynamic. We need more people to show the courage to stand up for what’s right and we need more elected officials to show the courage to take action.”

It is probably a smart move on the part of these gun prohibitionists to reemphasize Gabby Giffords as the face of their organization. She is a sympathetic (and pathetic) figure who survived an assassination attempt in the prime of her life and seems to have regained some of what she lost from her injuries.

With the renaming of the organization, the image of Gabby Giffords will always be more important than the reality. The image is that of the courageous survivor who fought back and is now leading the fight against “gun violence” (sic). The reality is that we don’t really know what level of mental capacity she retains given her servere brain injuries and that she very well could be more of a puppet than an actual leader. As for her husband Mark Kelly, the image he wants the world to see is that of a devoted husband caring for his grievously wounded spouse and seeking to protect others from what happened to her. However, when I look at the reality of today’s Mark Kelly, words like “puppet master”, “leech”, and the male equivalent of “gold digger” come to mind. Obviously, I don’t think much of him as he seems to have abandoned the oath he took as an officer to support and defend the Constitution in favor of political and monetary gains.

It will be interesting to how well gun control uses the cult of personality to make political gains. Time will tell.