Alex Ooley (00:00)
Hello and welcome to another episode of the Forge of Freedom podcast. I'm your host, Alex Uli, and this is episode 199 of the Forge of Freedom. Today's episode is, actually I'm recording this on Wednesday, December 31st, 2025, but by the time it gets released, it will be 2026. So I should start out by saying happy new year, but I wanted to bring some good news.

⁓ to begin the year. That is news out of an Indiana state court, the Indiana Court of Appeals, which finally ordered the dismissal of City of Gary versus Smith and Wesson, ending a lawsuit that had been dragging on for over two decades, approximately 26 years. And this was just not just an old case. It was a case that encapsulates

this sort of this idea of lawfare, ⁓ one that sought to use the legal system itself as a weapon.

So this episode is about how that strategy worked, why it failed, and why we should be thankful that this case is finally resolved. To understand a city of Gary versus Smith and Wesson, we have to return to late 1990s. This was the height of the first wave of municipal

gun litigation across the country. Major cities, often working in coordination with national gun control organizations and plaintiff's attorneys, began filing lawsuits against firearms manufacturers and dealers. And the theory behind these lawsuits was somewhat novel and aggressive. Cities did not claim that manufacturers had violated gun laws. They did not allege defective products.

Instead, they argued that the lawful manufacture and sale of firearms constituted a public nuisance because criminals later misused those firearms. The alleged harm was indirect, attenuated, and caused by third parties, not the manufacturers themselves.

Gary filed its lawsuit in 1999 against a wide range of defendants including Smith & Wesson, Glock, Colt, Beretta, Ruger, wholesalers, and local retailers. The claims

were couched in negligence and public nuisance, asserting that the industry's marketing and distribution practices foreseeably contributed to crime within the city. And dozens of cities pursued similar lawsuits. Every one of them eventually failed or was abandoned. Gary's case did not, at least not at first.

Gary's lawsuit became what can fairly be described as a legal zombie. It survived not because it was especially strong on the merits. In fact, it was not strong at all on the merits, but because it repeatedly cleared procedural hurdles. That is, it did just enough to stay alive within the legal system. And over the course of more than two decades, the case cycled through multiple rounds of motions to dismiss and appeals.

Indiana courts allowed certain claims to survive at the pleading stage, particularly under public nuisance theories. Each time the litigation returned to the trial court where discovery loomed and costs mounted. This procedural endurance mattered. Even without a final judgment, the case imposed enormous burdens on the defendants, legal fees, uncertainty, reputational harm, and so on. On defendants who had not been found,

to have violated any law. And that brings us to a critical concept that I alluded to at the beginning that deserves explicit attention. This case illustrates a classic feature of lawfare where the process itself is used as leverage. Lawfare is not primarily about winning on the merits. It is about using the legal process itself as a weapon.

The goal is not necessarily to prevail at trial, but to impose costs, extract concessions, and achieve policy outcomes that could not be secured through legislation. Process as leverage means that the journey becomes the punishment.

Endless motions, sprawling discovery, repeated appeals, and decades-long litigation impose financial and operational strain regardless of the outcome. For private defendants, especially manufacturers operating in heavily regulated industries, this uncertainty can be devastating. In the Gary case, this dynamic was unmistakable. For 26 years, the firearms industry was forced to

to defend against claims that never resulted in a finding of wrongdoing. The lawsuit itself became the regulatory tool. Rather than passing laws through elected bodies, plaintiffs sought to reshape industry behavior through attrition. This approach raises serious rule of law concerns. Courts are designed to resolve concrete disputes between parties not to serve as substitute legislatures. When litigation is used primarily to impose

pressure rather than adjudicate liability, legal process is distorted into political leverage. The Gary lawsuit demonstrates why lawfare is so dangerous in a constitutional system. If allowed to succeed, it would establish a precedent that any lawful industry could be regulated into submission through prolonged litigation, regardless of legislative intent or statutory compliance.

Congress recognized this danger at the national level in 2005 when it enacted the Protection of Lawful Commerce in Arms Act, commonly known as the PLCAA. The PLCAA was a direct response to the wave of municipal lawsuits like Gary's. Congress found that firearm manufacturers and sellers were being targeted for harms caused by the criminal misuse of lawful, non-defective products.

The statute was designed to restore traditional principles of causation and liability. The PLCAA does not grant blanket immunity. It allows lawsuits for defective products, breach of warranty, negligent entrustment, and violations of state or federal firearms laws. What it prohibits are lawsuits that seek to hold manufacturers liable solely because their products were later misused by someone else.

committing a crime. In plain terms, the PLCAA reflects a simple rule. Responsibility lies with the wrongdoer. The manufacturer of a lawful product is not liable for a third party's criminal acts absent independent wrongdoing. And this makes sense. think about the analogous situation with a vehicle. Ford Motor Company or General Motors

or Toyota or whatever manufacturer you can think of is not responsible for someone who uses their vehicle and drives under the influence of alcohol.

And although the PLCAA alone did not immediately terminate the Gary lawsuit, it fundamentally reshaped the legal landscape and reinforced the principle that courts should not be used as tools of indirect regulation.

In 2024, the Indiana General Assembly addressed the issue directly by enacting House Enrolled Act 1234. Sorry, excuse me. That was House Enrolled Act 1235. The statute provides that only the state of Indiana, not cities or counties, may bring lawsuits against firearm manufacturers, dealers, or trade associations. Crucially, the law applied retroactively

to August 1999, just days before Gary filed its lawsuit. This was an explicit policy decision to end the case and prevent similar litigation in the future. A trial court initially refused to apply the statute retroactively, citing concerns about vested rights and fairness, but the Indiana Court of Appeals reversed.

In a unanimous opinion, Indiana Court of Appeals ordered the dismissal of the Gary lawsuit. And I'll post a link to the opinion in the show notes so you can read it for yourself. But the court held that political subdivisions have no vested right to maintain litigation beyond the authority granted by the legislature. Cities are not sovereign entities. They are creatures of the state. When the legislature withdraws a power,

The must apply that change in the law even if it alters ongoing litigation. The court rejected claims that the statute violated separation of powers or constituted unconstitutional special legislation. The law applied uniformly statewide and the legislature acted within its authority to define public policy.

This case matters and this is why I'm bringing it up. Not only because it's important for the firearms industry, but it matters far beyond gun policy. If cities can use litigation to regulate lawful industries indirectly, then no industry is safe from lawfare. Whether it's environmental policy, energy policy, food policy, healthcare policy, and so on.

All could be shaped not by elected representatives, but by discovery schedules and settlement pressure. The Indiana Court of Appeals correctly recognized that such an approach undermines democratic accountability.

So after 26 years, City of Gary v. Smith v. Wesson is finally over. Not because justice was denied, but because justice requires limits. The rule of law depends on structure, on clear boundaries between legislation, adjudication, and enforcement. And this case serves as a reminder that liberty is preserved not only by rights, but by restraints.

specifically by restraints on the government.

And Gary may appeal the determination to the Indiana Supreme Court, but for now, this chapter closes. And thankfully so.

There have been a number of other commentaries on this case. I'll link to some of those as well, including Reason.com, the IndyStar, the Reload, ⁓ by Guy Relford at the Gun Guy podcast on WIBC. I'll link to those if you're interested in seeing some of those other commentaries. But I wanted to bring this to your attention because this is

Like I said, this case and cases like this can have broad implications on.

our legal system, separation of powers,

and not only the right to keep and bear arms, but many other.

areas that affect our

ability to live freely. So with that I hope you enjoyed the podcast. If you did, give it a thumbs up, share it, subscribe if you can. As always you can find the podcast on YouTube, Rumble, Facebook, and on all the most popular podcast streaming platforms we're also at forgerfreedom.com. Happy New Year everybody and remember you are the Forge of Freedom.