Where the Constitution and Compliance Converge


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It would be the rare person, indeed, who has routinely considered the United States Constitution as part of his manufacturing compliance program.  We think of so-called ‘gun cases’ as civil liberty cases fought by individuals under the Second Amendment, and for more than two hundred years that was a fair-enough characterization. 
 
Bundled in with the package of changes that we’ve experienced in the past 6-months are pending and emerging lawsuits in Colorado, Connecticut, and New York.  The lawsuits – in conjunction with the laws they challenge – represent a new question for manufacturers. 
 
The three federal cases that are underway are multi-plaintiff lawsuits, involving a blend of industry associations, law enforcement, manufacturers, dealers, and individuals.  In Colorado, we are watching Cooke vs. Hickenlooper, in Connecticut it’s Shew vs. Malloy, and in New York it’s New York State Rifle & Pistol Association vs. Cuomo.  Copies of the complaints in these cases are already available in our Orchid Advisors on-line research library, along with our specialty product, the “Manufacturer’s Table of Contents” to provide highlights of salient points.
 
While the cases prioritize claims of individual gun owners under the Second Amendment, the complaints also assert that banned products are in common use among millions of responsible gun owners.  The early documents crafted by the plaintiffs are packed full of product and technical details to challenge both the specifications of the statutes and of the product lists.  Also drawing strong challenge is the question of statutory language around firearms that are “similar to” or “copycats of” firearms and accessories that are enumerated in the statutes.
 
The reason for the approach relates to the 2008 United States Supreme Court case of District of Columbia vs. Heller.  “Heller” has become a household name.  When you look at the more than 150-pages of judicial opinion, the text we extract for manufacturers is the one sentence that reads, “Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”
 
It’s worth taking one step back in time to 1939 when two men faced criminal charges for inter-state transportation of short-barreled shotguns, which moved through the federal courts to become the US Supreme Court case of US vs. Miller.  Unlike Heller, where the US Supreme Court ruled in 2008 that the District of Columbia could not ban handguns, the US Supreme Court in 1939 in Miller ruled that the state could ban a shotgun having a barrel of less than eighteen inches because the firearm was neither “…any part of the ordinary military equipment” nor did it “…could contribute to the common defense.”  Copies of these US Supreme Court cases are likewise available in the on-line Orchid Advisors research library.
 
So where does the concept of constitutional law litigation relate to compliance?
 
First, there is a question of whether product lines should be discussed with the constitution in mind the way we analyze potential litigation over, for example, patents and trademarks. 
 
Second, we should be aware that various companies may end up involved in these and other cases as plaintiffs make assertions about technical details of specific products found on state lists and/or potentially qualifying under that “similar” heading.  Even if not a named plaintiff, one might become an expert witness, a subpoenaed witness, or the author of an amicus brief.
 
And, third, one may be forced into litigation as both a means of defending against an inspection violation and obtaining a binding judicial interpretation of a statute provision that is unclear or a question of law that is unsettled.  The list of constitutional law decisions with language specifically written to/for/about manufacturers is sparse.  What we lack in precedents, we may see in future court determinations.
 
As always, we thank you for including Orchid Advisors in your compliance conversations both on site and on-line.
 
Interested in learning more about this topic?  Subscribers can sign-in to play our full Webinar from the June 27 virtual roundtable, titled “New State Laws?  New Lawsuits in CO, CT, and NY.”