Gunmaker Smith & Wesson sues New Jersey to block subpoena

New Jersey has some of the most stringent gun laws in the country. Not coincidentally, it also has an attorney general, Gurbir Grewal, engaged in a crusade against firearms. In a 2018 press conference, he stated that “each gun that we take off the streets is a life, or multiple lives, that we save in the process.”

Grewal has been involved in numerous gun rights battles, the most recent involving a suit filed against him on December 15, 2020, by gunmakers Smith & Wesson. The suit is the company’s response to a subpoena served by Grewal’s office in October requiring the surrender of an enormous amount of documents, including:

True, accurate and complete copies of all Advertisements for Your Merchandise that are or were available or accessible in New Jersey concerning home safety, concealed carry, personal protection, personal defense, personal safety, or home defense benefits of a Firearm, including a Smith & Wesson Firearm.

The list continues to 17 items and can conservatively be described as exhaustive.

Smith & Wesson balked at demands they took to be onerous and have filed suit for injunctive relief from the subpoena. The court filing alleges that:

Since his confirmation, the Attorney General has been clear, through both his conduct and a series of inflammatory and biased statements, about his plan to use the power of his office to coerce firearms companies to adopt his policy preferences with respect to the Second Amendment.

The suit runs to 40 pages and 175 paragraphs and occasionally reads as something of a harangue. It also pleads its case in more measured language that the company’s rights under the First, Second, Fourth, Fifth and Fourteenth Amendments have been violated.

Plaintiffs begin their argument by alleging that:

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…that allegedly seeks evidence of consumer fraud relating to advertising – but in reality…seeks to suppress and punish lawful speech regarding gun ownership in order to advance an anti-Second Amendment agenda that the Attorney General publically committed to pursue.

More specifically, “the Attorney General commands Smith & Wesson to produce a vast collection of documents on a number of topics, most of which are, at bottom, opinions.” As an example, the Subpoena treats as fraudulent any alleged position that guns enhance safety. To the extent Smith & Wesson has ever advocated for such a position, it is an opinion held by many people...The search “do guns make you safer” on Google returns 248 million results. Some of those returns reflect the position that guns do not make one safer, while others present the exact opposite position.

According to Smith & Wesson, the “real” reason behind the suit apparently lies not only with Grewal but with the anti-Second Amendment Activists have accepted that they cannot be successful through democratic means. To overcome the inability to achieve their political objectives through the legislative process, they instead attempt to bypass the legislative process and engage in abusive litigation.

In other words, an anti-gun cabal is seeking to create legal challenges that place excessive litigious burdens on Smith & Wesson in terms of both time and money. The suit terms this alleged legal harassment as “lawfare” that violates “numerous provisions of the U.S. Constitution, including the First, Second, Fourth, Fifth and Fourteenth Amendments.”

Like all gun manufacturers, Smith & Wesson “is a strong advocate of Second Amendment rights, which means that the anti-Second Amendment Activists view the company as a voice that must be silenced.” The language sounds paranoid at times, although, at least taken from Smith & Wesson’s perspective, the paranoia in the face of what they claim amounts to harassment might well be justified. They’re a business, their business is to sell guns, and the marketplace for guns is shrinking. Accordingly:

The Attorney General knows, or should know, that this attempt to curb Smith & Wesson’s speech will cause Smith & Wesson customers to abandon the brand and cause the company significant economic damages, by decreasing the company’s sales and causing the company to expend unnecessary resources in fighting and responding to the Attorney General’s baseless “fraud” investigation.

The Smith & Wesson suit also alleges that the company’s due process rights have been violated by the subpoena:

The due process requirement of a neutral prosecution bars the Attorney General from injecting his personal interests – in this case, his partisan, political views regarding the second Amendment – into any government enforcement effort. When viewed in the light of the Attorney General’s prior inflammatory statements…it is clear that the Subpoena and investigation are designed to harm Smith & Wesson, both financially and in the court of public opinion.

Once more, a legal issue has descended into a squabble of party politics.

Smith & Wesson’s suit is not the only firearms-related case currently before the New Jersey courts, which, in the past, haven’t systematically sided with the attorney general on gun rights questions. In any event, the Second Amendment battle continues to rage in New Jersey. Whether Smith & Wesson is paranoid or whether Grewal is a hoplophobe is now a matter for the state courts – and the court of public opinion – to decide.