BENTON – Illinois legislators equipped Illinois judges to shut down every gun business in America, the National Shooting Sports Foundation (NSSF) argued at U.S. district court on Sept. 15.
NSSF's counsel Gary Pinter of Edwardsville moved for a preliminary injunction against a law that provides civil damages against gun makers and sellers for criminal use of guns.
Pinter claimed that if a criminal in Illinois misused a firearm from an Ohio manufacturer, an Illinois judge could hold the manufacturer liable.
He claimed it could happen “even if the manufacturer never sold a single firearm to anyone in Illinois, and even if it employed every safety measure that Ohio and Congress required.”
“Indeed, the only way to truly eliminate all risk of liability under House Bill 218 would be to cease operations altogether in every state,” he wrote.
He attached a declaration of Susan Cupero, vice president of Smith & Wesson’s sales affiliate, stating Smith & Wesson manufactures firearms in Massachusetts and Connecticut.
She stated it doesn’t sell directly to any civilian in Illinois.
Cupero shared a belief that legislators designed the law to encourage suits against manufacturers for marketing lawful products in ways that emphasize lawful features.
She stated Smith & Wesson was sued in the Western District of New York under similar state law on a theory that its marketing is not unlawful but is unreasonable and harmful.
Pinter wrote that the Constitution restricts the power of states to regulate out of state conduct.
“House Bill 218 flouts that rule, as it imposes liability for conduct that is entirely out of state and entirely lawful where it occurred,” he wrote.
Pinter challenged the law on other grounds, starting with a claim that Congress enacted a law to keep states from making manufacturers and retailers pay for harms criminals caused.
He claimed Congress intended to stamp out efforts to use a nebulous reasonableness standard.
“Yet that did not stop lawmakers in Springfield from trying to foist exactly that sort of liability on licensed members of the firearms industry,” he wrote.
“Just as Congress does not hide elephants in mouseholes, it does not pass laws with trap doors making them trivially easy to evade,” he added.
Pinter claimed the law regulates speech in violation of the First Amendment.
He claimed accurate marketing materials might trigger liability if they are unreasonable.
He quoted a Supreme Court decision that the state may not remove a popular but disfavored product from the market by prohibiting truthful advertisements.
Pinter claimed the state can’t satisfy the heightened scrutiny of a First Amendment claim.
“Despite ostensibly being motivated by a desire to reduce gun violence, House Bill 218 does nothing to police the conduct of criminals who misuse firearms,” he wrote.
He claimed it doesn’t regulate action films, video games, and direct incitements to violence, and other vast swaths of speech that might encourage criminal gun usage.
“House Bill 218 is thus wildly under inclusive when judged against the state’s interest, which calls into question what is really animating it,” he said.
Pinter claimed the law suffers from unconstitutional vagueness in free speech and due process.
On speech, he claimed the law makes it all but impossible to tell what is and is not permitted.
He claimed it doesn’t draw a line between permissibly encouraging lawful use of firearms and impermissibly encouraging unlawful use.
On due process, he claimed the law is so standardless it invites arbitrary enforcement.
He claimed industry members must adopt procedures to prevent a litany of abstract goals.
“Is it enough to have security cameras or do they need a security guard?” he wrote.
He claimed the law violates the Second Amendment by banning youth model firearms.
He added that foundation members manufacture firearms designed to be safer for minors to use, “which minors may lawfully do in many circumstances in Illinois.”
He also claimed members sell these rifles, shotguns and other models to adults who want to introduce their children to shooting sports, hunting, and other lawful recreation.
Pinter attached a declaration of Anthony Imperato, chief executive of Henry Repeating Arms, which manufactures firearms in Wisconsin and New Jersey.
He stated his company designed its current marketing to appeal to minors.
“We have no idea what the state of Illinois will deem to reasonably appear to support, recommend, or encourage unlawful conduct in the context of a company that not only designs, sells, and advertises youth model firearms but proudly promotes them as such,” he wrote.
Pinter attached a declaration of Michael Scannell, owner of Recoil Armory in Granite City, stating he long sponsored the Southern Illinois Ice Hawks youth hockey organization.
He stated that his logo on T-shirts and flags didn’t market anything to children, but it got the word out to adults about the store.
“However, in light of House Bill 218, Recoil Armory has made the difficult decision to cease its partnership with and sponsorship of the Southern Illinois Ice Hawks,” he wrote.
District Judge Staci Yandle presides.