• Bloomberg


“Forces of opposition bow down. You are single-handedly outnumbered.”

That’s how one advertisement reads for a semi-automatic rifle made by Bushmaster, whose AR-15 is increasingly the gun of choice for America’s mass shooters, including the suspect in Sunday’s massacre at a gay dance club in Orlando, Florida.

“Consider your man card reissued,” another one reads, the text adjacent to a black AR-15 against a stark white background. The bright red logo of the gun’s maker stands out: a red cobra coiled around a rifle, bearing its fangs.

As fraught as the national debate over gun rights has become with each new attack, it may end up being the propriety of firearms advertising rather than constitutional rights that moves the needle in the intractable, decades-long standoff. Bushmaster refers to the AR-15 as a “modern sporting rifle,” conjuring images of hunters in the woods searching for deer. But civilian marketing for the gun seems to focus less on hunting and more on the military, SWAT teams, and all-around masculinity.

The AR-15 has figured in some of the most prominent shooting sprees of recent memory. James Holmes used an AR-15 to kill 12 people and wound 70 at a movie theater in Aurora, Colorado, in 2012. So did Adam Lanza, who slaughtered 26 students and teachers at Sandy Hook Elementary School in Newtown, Connecticut, the same year.

And of course Omar Mateen, 29, brought a handgun and an AR-15 to Pulse, the Orlando club where the past weekend’s shooting took place, Police Chief John Mina said. Like the 2012 shootings, the Orlando attack has triggered demands for expanded background checks, bans on sales of military-style rifles, and cuts to ammunition capacity. Opposing such calls has been the powerful gun lobby, which recently scored a landmark U.S. Supreme Court ruling affirming individual gun rights.

With that landscape in mind, lawyers for the families of children killed in Newtown embarked on a novel legal thrust. Bushmaster, a unit of Cerberus Capital Management LP’s Remington Arms Co., is negligently selling a weapon of war to untrained civilians, and the advertisements go a long way toward proving that, the lawyers contend.

“They are doing so with the knowledge that there are no battlefields with enemy combatants in civilian life; there are only schools and movie theaters and Christmas parties and dance clubs that can be transformed into battlefields in an instant,” Katie Mesner-Hage, a lawyer for the parents, said in an interview.

The case has emerged as the strongest legal challenge to the gun industry’s claim of immunity under a 2005 federal law. Lawyers for the parents said the AR-15 has become as “the weapon of choice for shooters looking to inflict maximum casualties.” They argue in a lawsuit that Bushmaster’s “negligent entrustment” of a military weapon falls under an exception to the law, and say that a victory could set a template for future challenges. Bushmaster rejects their arguments and has urged a Connecticut court to throw the case out.

Litigation challenging the gun industry in such fashion has largely failed in the past. But Connecticut Superior Court Judge Barbara Bellis allowed the Newtown case to move forward when she recently set a trial date for April 2018. A hearing on Bushmaster’s next bid to toss the suit is set for Monday in Bridgeport Superior Court. In the meantime, the plaintiffs can demand internal documents and testimony from Bushmaster officials to prepare for trial. Even if the case is eventually dismissed, such discovery (as the exchange of evidence is called) could fuel future litigation.

Jessica Kallum, a spokesperson for Madison, North Carolina-based Remington, and James Vogts, lead defense lawyer in the Newtown suit, didn’t return calls seeking comment. Liz Micci, a spokeswoman for Cerberus, declined to comment.

Bushmaster has said in regulatory filings that part of the growth in the market for the AR-15 was due to increased appeal to a “younger demographic of users,” according to court papers. In most states, young people can legally purchase an AR-15 before they can drink alcohol, and no safety training is required, the Newtown lawyers said, and at least a dozen states allow kids as young as 14 or 16 to buy the weapon—or have no age limit for buyers—according to court filings.

Plaintiffs lawyers said the Bureau of Alcohol, Tobacco, Firearms and Explosives has determined that the AR-15 is no good for hunting. The weapons are designed to inflict as much damage as possible before law enforcement can arrive, according to the Newtown lawsuit. The gun companies “unethically, oppressively, immorally and unscrupulously marketed and promoted the assaultive qualities and military uses of AR-15s to civilian purchasers,” the attorneys conclude.

Celia Kvithyll, a 31-year-old theme park employee in Orlando whose friend Xavier Serrano was killed in the attack, said she doesn’t understand the logic behind selling military-grade assault rifles to civilians.

“Because of this weapon and the sick mind behind it, dozens of innocent people lost their lives at an extremely rapid rate,” Kvithyll said in an interview. “No civilian should ever have access to this type of weaponry. It’s called ‘military grade’ because it should only be used in combat.”

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