Thread by @2Aupdates

Oral arguments in Gustafson v. Springfield will be starting at the Pennsylvania Superior Court in about 5 minutes. This is the case where the prior panel said the PLCAA is unconstitutional:

Starting now. Brady Chief Counsel Jonathan Lowy is here.

Judge Panella points out that the United States intervened in this case to defend the constitutionality of the PLCAA.

Appellants (who brought the lawsuit) up now. Lowy from Brady arguing.

Lowy says the PLCAA violates the 10th Amendment and the Commerce Clause.

Judge Bender asks how the difference between criminal convictions and juvenile adjudications may affect this case. Lowy says the lawsuit should still fit into PLCAA's exceptions. Says the court should look "through the lens of federalism."

Judge Dubow asks about the word "volitional," are we focusing on the act of pulling the trigger, or the fact that the gun's holder was not trying to discharge the firearm?

Lowy says congress included the word "volitional" to not include cases like this (where a minor accidentally shoots someone else).

Dubow seems a little skeptical of Lowy's response.

Lowy says there has to be some intent, pivots to talking about federalism.

Judge Panella: If the prosecutor determined that the shooting was negligent, how would that affect this? Lowy says it would help his case.

Judge Kunselman asks if it's the court's place to review a law like the PLCAA re preemption and the Commerce Clause.

Lowy says all the gun industry gets from the PLCAA is a "get out of jail free card."

Kunselman says Pennsylvania's lack if PLCAA-like law is why we're here now. Lowy says the conduct regulated by the PLCAA "is none of Congress' business."

Judge Bowes asks about definition of criminal acts in the PLCAA, says adjudicated juveniles can still be considered to have committed crimes.

Bowes asks if Lowy is arguing that this case did not involve a volitional act. Lowy says yes.

Springfield up now

Springfield says the shooter was charged and pleaded guilty to a crime in this case. Argues the PLCAA says this case should have never been filed.

Springfield one-by-one addressing the judges' questions for Lowy.

Judge Panella says he's sympathetic to Springfield's arguments because a prosecutor who wants lawsuits against gun companies to avoid charging people (so they wouldn't have committed a criminal act).

Springfield says he's splitting argument time with the government.

Judge Dubow asks for an example of a liability lawsuit that can go through the PLCAA (like dropping a gun and it firing into someone). Springfield says that hypothetical case could go forward.

Dubow says what if she was mad and threw the gun at a wall and it fired?

Springfield says the "throwing the gun at someone and it fires into them" hypo would be preempted by the PLCAA.

Dubow says what if she's shooting a gun and it explodes? Springfield says that's not covered by PLCAA.

Dubow says it sounds like it's always volitional if someone is holding a gun, Springfield disagrees.

United States arguing now.

DOJ says every state and federal court to consider the PLCAA has found it constitutional.

DOJ isn't saying whether this lawsuit is covered by the PLCAA - just that it's constitutional.

Judge Kunselman is the PLCAA's biggest opponent at these arguments. She wrote the panel opinion saying the law is unconstitutional.

Kunselman asks if congress could imposes strict liability in laws like this, DOJ says maybe, but it's not really relevant to the current law.

Judge Dubow asks if "regulate" covers both imposing burdens and giving benefits to businesses. DOJ says there's no reason regulating has to only impose burdens, congress explained when passing the law what issues it was passed to fix.

Judge Bender asks a question about juvenile adjudication and whether PLCAA would apply. DOJ says it's only here to defend the constitutionality of the law.

Kunselman asking questions again. Asks what preexisting commercial activity the law regulates. DOJ says that the gun was manufactured and sold in interstate commerce.

Note: This is the basis for nearly all federal gun laws.

Kunselman says the law is "forcing" the plaintiffs into the marketplace, DOJ disagrees, says the pre-PLCAA lawsuits were a burden to the industry and this law was made to fix that, which it has the power to do.

Kunselman says the plaintiffs weren't engaged in any commerce.

Kunselman says the plaintiffs were at home and not engaged in commerce. DOJ brings up Wickard v. Filburn, says that doesn't really matter.

Judge Olson asks if congress is regulating the industry, and therefore interstate commerce by this law. DOJ says yes.

Lowy back up now

Lowy says the PLCAA changed the common law of Pennsylvania. Says this is "first day of law school" stuff.

Lowy says "giving the gun industry a free pass" doesn't count as regulating.

Lowy says he agrees with Judge Kunselman, disagrees with DOJ. Says the only preexisting activity that invoked the plaintiffs is their son being killed. Says if the PLCAA is upheld, it would greatly expand the Commerce Clause.

Judge Olson asks why the gun industry can't be regulated if it involves interstate commerce. Lowy says the gun industry can be regulated, but that PLCAA doesn't regulate the gun industry in any way, and they should be responsible in cases like this.

Lowy says the gun industry should have to pay if their products "kill children"

Lowy says NFIB v. Sebelius supports his arguments.

Judge Kunselman also says NFIB v. Sebelius supports striking down the PLCAA under the Commerce Clause.

Judge McCaffery has a last question for Springfield, asks him to respond regarding the 10th Amendment issue. Springfield says they agree with DOJ on that issue. Says the law is constitutional.

Oral arguments have concluded.