Part Two: Congress Cannot Cancel Constitutional Rights through Legislation

Part Two: Congress Cannot Cancel Constitutional Rights

Through Legislation

By Thomas Coffin

This essay is a sequel to Congress Cannot Cancel Constitutional Rights Through Legislation. I am including this chapter in order to add some of the potential evidence which exists to counter the Congressional findings which are cited in support of the immunity legislation.

The arms industry routinely denies any responsibility for what it characterizes as the “criminal misuse” of assault weapons. But this too is refuted by the facts. The industry has been known to promote these products in unsavory ways. Remington advertised the assault rifle used by the killer at Sandy Hook as a means to “re-issue your man card”. A company called Wee1 Tactical promoted a light weight AR-15, called the JR-15, to the adolescent set by reducing its weight by 2/3 while promising it still packed the “same punch” as the adult version. The Daniel Defense arms company which sold the AR-15 used by the school shooter in Uvalde promoted it by displaying that weapon being cradled by a toddler, a graphic descent into the depths of depravity.

When one combines the marketing with the known common “criminal misuses” of these weapons, it is a reasonable, even strong, inference that the seller is cognizant of the probability that the purchaser has criminal use as the intent.

It is not difficult to connect the dots between the marketing techniques, the patterns of misuse, and the knowledge of those patterns to hold the sellers accountable for the customer’s subsequent illegal actions.

Other examples can be found in the Mexican government’s federal lawsuit recently filed in the District of Massachusetts against multiple US based arms manufacturers, alleging they are affirmatively and deliberately trafficking their guns into Mexico and maintaining their supply chain to cartels and other criminal elements because such is a significant source of revenue and profit. Mexico cites a staggering increase in civilian homicides and related health impacts, including a significant decline in life expectancy within its population. The complaint also cited the industry’s marketing tactics, which, for example, highlight the ability of its military grade weaponry to rapidly dispatch large numbers of opponents in armed combat, which is especially appealing to criminals like the cartels which can be more heavily armed than even units of the Mexican army. See: Mexico v. Smith & Wesson and 7 other Defendants. Case 1:21-cv-11269. Filed 08/04/21.

The same knowledge and the same marketing techniques alleged in Mexico’s legal action can be traced to the U.S. side of the border. The ritual washing of hands after every massacre of the innocent with similar weaponry is equally as transparently hollow here as it is in Mexico.

In the name of corporate profit and greed, Congress has enabled the wanton taking of lives with impunity. That is the brutal reality, which the actors cannot gloss over with a flimsy “we know nothing” pretext.

A comparable reliance on immunity protection unfolded back in 1993 in the context of a publisher (Paladin Enterprises) that marketed a manual titled Hit Man: A Technical Manual for Independent Contractors. The manual was a detailed step by step set of instructions for assassins to commit murder and get away with it. Several murders were committed by killers using the manual’s protocol, including one wherein the assassin brutally murdered Mildred Horn, her eight-year old quadriplegic son Trevor, and Trevor’s nurse, Janice Saunders.

A civil lawsuit was filed against Paladin, which claimed immunity under the First Amendment freedom of speech protection. The Fourth Circuit emphatically rejected that defense, holding that the marketing of the Hit Man manual evidenced knowledge and intent to facilitate murder, and such “speech” was not protected. See: Rice v. Paladin Enterprises Inc., 128 F.3d 233 (4th Cir. 1997.)

Congressional immunity is not nearly as binding or persuasive as Constitutional immunity, yet the circumstances in Paladin nullified the application of even Constitutional immunity given the circumstances established by the evidence in the case.

There is even more reason to do so here.

As noted in the first part of this article, the Fifth and Fourteenth Amendments of the Constitution prohibit government from depriving people of life, liberty, and property without due process of law. By denying the victims’ even a modicum of protection from the military weaponry flooding the private sector, and even encouraging the distribution of these made-for-war lethal tools of death by immunizing the corporate suppliers, the government has opened the gates widely to permit the regular and unending taking of innocent lives without any process whatsoever. By denying the victims and their loved ones from even filing lawsuits over these recurring tragedies, the government has denied them any redress or just compensation for their egregious losses. By continuing the Congressional protection of immunity, the government has officially condoned and approved the policy of placing arms industry profits above the lives of the people, even the most vulnerable and helpless among the people, their children.

In addition, the government is subordinating other rights to an artificially and inaccurately elevated Second Amendment to favor this policy—not just the Fifth and Fourteenth Amendments, but also the First Amendment right to assemble and to peacefully protest. (There are numerous incidents where heavily armed AR-15 toting right-wing factions like Proud Boys and the like have scattered families and bystanders, as well as protestors, by intimidating those so gathered by brandishing their weapons.)

Recently the 4J School District in Eugene, Oregon voted to ban firearms at schools in the wake of the Supreme Court’s decision striking measures by States to regulate the carrying of firearms by the public at large. A number of gun rights advocates were at the initial board meeting on the topic, which had to be adjourned for safety precautions as some attendees were armed and one person in the audience verbally harassed an African-American board member, singling her out and referencing her race. After that meeting was adjourned, participants at the event who were interviewed by the press complained about the postponement because, after all, no guns were unholstered and no shots were fired.

This dovetails precisely with my observation about how the Second Amendment is being elevated to cancel fundamental rights such as the right of assembly. Justice Alito, concurring in the majority opinion striking the New York regulatory system, sarcastically chastised a dissenting colleague for bringing up the mass shootings across the nation claiming such to be irrelevant, but in doing so he only displayed his obtuseness regarding the intimidating, threatening, and purposeful chilling intent behind carrying weapons to public gatherings. Indeed, the roots of the Second Amendment are tied to the slave holding States’ insistence on the right to have armed militias in order to quell any rebellions by their slaves. Fear of murderous reprisals is a core part of its ignoble history.

The evidence is there. The PLCAA is fatally flawed. Its foundation is made of straw, and it is simply a cruel and perverse practice to continue the policy of sacrificing our school children and other wholly innocent victims to the canard being used to prop up the lucrative business of commercial trafficking in weapons of destruction.

Our Constitution is not so feeble or foolish a document as to bless this self-inflicted pogrom on the very people it was founded to serve and protect throughout the United States. We are not such fools as to believe this must be our destiny or fate as a Nation. Take back our Constitution. It belongs to the People, and is not at all a document that shields corporations selling the weapons to kill us with, nor is it a tool of the NRA, much less the politicians who fund their campaigns with the donations of special interests who lobby them to prevent any changes in policy which threaten to end the supply chain of military weaponry and thus eliminate the murderous assaults on the people and our children.

________________________________________________________

Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020.

He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School.
Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.
The Blackberry Pie Society is pleased to include a collection of his essays on our website. We will post them as they become available.

Posted 6.30.2022