Jody Lyneé Madeira
Professor of Law and Louis F. Niezer Faculty Fellow, Co-Director, Center for Law, Society & Culture, University of Indiana, Bloomington.

It is – again – so thoughtful of them to provide such definite means of positive identification.
“The ways in which we talk about the Second Amendment are also changing, becoming more uncompromising. Many advocates hang their arguments upon the feeble nail of “shall not be infringed,” and maintain that that phrase literally means what it says – that the right to bear arms is absolute, that it cannot be compromised, that it encompasses all or means nothing.
‘[F]eeble nail‘? ‘means what it says‘? If she thinks so little of one enumerated right, what might she think about other rights?
A New Call to Arms: Rewriting Second Amendment Threats
The Protection of Lawful Commerce in Arms Act (PLCAA), codified at 15 U.S.C. § 7901 et seq., has nearly banished the specter of civil liability for covered gun industry entities. PLCAA was predicated on the claim that gun industry actors, including firearm manufacturers and sellers, were under siege from baseless lawsuits founded on novel legal theories. Prior to its passage, several state courts had held that these entities could be held responsible for knowingly or recklessly distributing their products through sketchy sellers, essentially turning a blind eye to business practices that contributed to gun violence.
In addition to its legal consequences, however, PLCAA had other social and cultural effects. It has helped to establish and reinforce a new narrative supporting contemporary gun rights state legislation. The claim that the firearms industry is under siege has now morphed into the assertion that the Second Amendment itself is under assault, that firearms are disfavored, and that those who own, carry, or use firearms are targets of discrimination.
The breadth and assumptions of PLCAA have also influenced recent state gun rights legislative advocacy, incentivizing measures like permitless carry. To personalize the narrative of gun rights “under siege,” gun rights advocates mobilize citizens to testify in legislatures across the country about how state law schemes infringe on their Second Amendment rights. Many of these laws have been on the books for years but were not questioned until recently. Nearly all are based on traditional doctrinal premises such as home rule and the “longstanding regulations” and “sensitive places” distinctions substantiated in Heller. For example, several state legislatures have assumed the mantle of regulating firearms and ammunition, lifting it from the shoulders of municipalities and cities.



