In a turnabout worthy of Invasion of the Body Snatchers, The Washington Post (WAPO) published an editorial last Tuesday criticizing the gun control movement for ignoring the Protection of Lawful Commerce in Arms Act (PLCAA) and pursuing its agenda in the courts. This was a major shift for WAPO, which when the PLCAA was pending in Congress wrote: “A more unfair and irrational special-interest shield from civil justice is difficult to imagine.” Tuesday’s editorial provides evidence that the paper of record in the Nation’s Capital may indeed be bowing to the directive of its owner, Jeff Bezos, to embrace certain fundamental American values, at least in its opinion section.
Indeed, we needled WAPO last week for the predictably comic resistance its staff showed toward being ordered to emphasize “personal liberties and free markets” in its editorials. “Freedom and capitalism will obviously not be easy or intuitive concepts for the editorialists of the flagship newspaper in the Nation’s Capital to promote,” we observed. We then used the paper’s support for banning AR-15s, America’s most popular centerfire rifles, to argue: “Second Amendment issues, in particular, will require a massive attitude adjustment and learning curve.”
We allowed for the possibility, however, that Bezos was trying to make positive changes at his troubled publication. Our piece concluded: “we are willing to give Jeff Bezos and his flailing newspaper a chance to right the ship … a shift toward a more patriotic and liberty-minded Washington Post … might just improve its bottom line, as well as its content.”
Tuesday’s editorial is at least a step in the right direction.
To be sure, WAPO didn’t get everything right. It began:
Well-intentioned advocates for gun control have in recent years tried to use the courts creatively to bankrupt firearms manufacturers. The clearest illustration of this is a $10 billion lawsuit filed by the government of Mexico, now before the U.S. Supreme Court, which alleges that seven leaders in the industry willfully fueled cartel violence south of the border, and demands court-mandated safety requirements around the marketing and distribution of guns.
These statements were right on the facts but wrong on the characterizations. “[C]reatively” abusing the legal system in concert with a corrupt foreign regime to assail a fundamental American liberty hardly betrays a laudable motivation; it is both cynical and unethical. Likewise, WAPO was wrong that the case is “only nominally about the Second Amendment and personal liberty.”
It was right, however, that what’s at stake concerns “the rule of law — and economic freedom.” Having thus identified a couple of concepts that could please its billionaire patron, the editorial went on to make a good case for why Mexico should, and probably will, lose the biggest case to implicate the PLCAA to date.
First, WAPO correctly characterized the First Circuit Court of Appeals’ end-run around the PLCAA that was under review by the Supreme Court as “lamentable judicial activism.” It was also notable and rather amusing that the paper observed the judges behind this debacle of a decision were “all nominated by Democratic presidents[.]”
The paper then turned to the history and intent of the PLCAA, acknowledging its broad bipartisan support:
The 2005 law was written to protect American gunmakers from going out of business amid a tsunami of lawsuits filed by shooting victims, as well as state and local governments, including the cities of Boston and Chicago. Justice Ketanji Brown Jackson noted during arguments on the Mexico case that the point of the 2005 law was “Congress protecting its own prerogative to be the one to regulate the industry.”
It also picked up on a point made at oral arguments by Justice Brett Kavanaugh about the potential disruption a positive ruling for Mexico could have for U.S. industries generally. “Imagine if beer companies became liable for selling large quantities of their product in college towns,” WAPO wrote. “Under Mexico’s theory of the case, these companies could foresee that underage people would wind up drinking their product, so they’d be responsible for any trouble they got into.“
Contrary to repeated false statements by PLCAA opponent Joe Biden, moreover, WAPO correctly noted other industries have also enjoyed congressional liability protection, among them airlines, vaccine manufacturers, and Internet service providers.
WAPO provided its own reasonable suggestions for stemming the “southward flow of firearms,” including aggressive prosecution of straw purchasers working for the cartels and “[s]tronger border security.” Notably absent, however, was any suggestion of banning guns currently available to law-abiding American consumers.
Ultimately, WAPO concluded:
lawsuits against gunmakers cannot be the solution. Courts are not the proper venue to formulate public policy. Empowering trial lawyers this way would erode growth, slow commerce and undermine American dynamism.
Granted, it’s still easier for WAPO to recognize the PLCAA as a valid pro-business and tort reform measure than for its higher purpose of protecting the Second Amendment rights of American citizens.
Nevertheless, for The Washington Post, it’s progress.
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