In blue states around the country, the gun control lobby is trying to circumvent the Protection of Lawful Commerce in Arms Act by adopting “public nuisance” laws that allow gun makers, distributors, and sellers to be sued under claims that they “unreasonably” made, sold or marketed a firearm that is later misused in a crime.
The Second Circuit Court of Appeals recently upheld New York’s “public nuisance” law, and today the National Shooting Sports Foundation filed a cert petition with the Supreme Court asking the justices to overturn that decision and strike down the law in question.
“We earnestly believe that New York’s punitive public nuisance law is exactly what Congress had in mind when it passed the PLCAA with a bipartisan majority. The PLCAA is designed to prohibit frivolous lawsuits against members of the firearm industry based on the criminal actions of remote third parties, and we continue to believe the New York statute is intended to evade the will of Congress,” said Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “The PLCAA is codification of bedrock tort law. It codifies common law and common-sense principles to prevent baseless litigation from bankrupting an entire industry, especially one that provides the necessary means for the lawful exercise of the Second Amendment.”
NSSF argues that New York’s public nuisance law is preempted by PLCAA, and — contrary to the Second Circuit’s holding — does not fit within the predicate exception of the statute, which permits a narrow subset of lawsuits based on knowing violations of certain state or federal laws. Indeed, the Supreme Court has already spoken on the PLCAA’s predicate exception and concluded that it does not allow states to resurrect the very claims the PLCAA prohibits. Applying the logic of the Court’s decision in Smith & Wesson Brands, Inc., et al v. Estados Unidos Mexicanos, if laws like New York’s public nuisance statute fall within the predicate exception, then that exception “would swallow most of the rule.” In that case, the Court expressed “doubt Congress intended to draft such a capacious way out of PLCAA” and explained that “in fact it did not.”
Seasoned 2A litigators Paul Clement and Erin Murphy are representing the industry trade group in NSSF v. James, and as usual the pair have done a fantastic job in their brief of laying out the issues in a clear and succinct manner that even non-lawyers can easily understand. As they argue in their brief, the Second Circuit decision not only creates a circuit court split about whether these “public nuisance” laws conflict with the PLCAA, it also “makes nonsense” of the statute adopted by Congress on a bipartisan basis twenty years ago.
As this Court recognized in Smith & Wesson, Congress made quite explicit that the “PLCAA’s core purpose” is to foreclose“l awsuits attempting to make gun manufacturers pay for the downstream harms resulting from misuse of their products.” Yet the core purpose of §898 is to “reinstate” lawsuits seeking to make gun manufacturers (and other industry members) do exactly that. The Second Circuit’s conclusion that §898 succeeds in accomplishing that federalism-defying objective flouts text, precedent, and the cardinal rule that a federal statute cannot be read to “make it trivially easy for States to undermine [it]—indeed, to wholly defeat it.”
At issue is the PLCAA’s “predicate exception,” which allows lawsuits for actions alleging that an industry member “knowingly violated a State or Federal statute applicable to the sale or marketing of [a firearm orrelated] product,” if “the violation was a proximate cause of the harm for which relief is sought.”
The NSSF maintains, though, that the predicate exception “cannot sensibly be read to exempt any and all statutes that apply to the firearms industry in any way, shape, or form, as such a capacious reading would allow the exception to ‘swallow most of the rule.’”
At the outset, the notion that the predicate exception covers any law capable of being applied to the firearms industry is belied by the fact that Congress supplied illustrative examples of what kinds of laws it had in mind. There would have been no needt o do so if the exception was meant to reach literally any law that applies to the firearms industry, as that is hardly a concept that requires illumination. The whole point of providing examples is to inform the meaning of general phrases like “applicable to”—which is why interpretive canons teach that general language must be “construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words” that “follow.”
The examples provided by Congress include a knowing violation of a record-keeping requirement and knowingly participating in the “straw purchase” of a firearm. The NSSF argues that “knowingly” is a key element of the predicate exception, while the New York law in question:
just commands that firearms industry members conduct their operations “reasonabl[y],” without identifying what controls and procedures are “reasonable,” what conduct is “unreasonable under all the circumstances,” or what “circumstances” are relevant to that determination. The statute thus leaves industry members guessing as to what otherwise-lawful conduct may retroactively be deemed “unreasonable,” based on circumstances that may not even have been evident at the time, thereby exposing them to crippling liability without regard to whether they had any reason to “know” contemporaneously that their conduct might “violate” anything.
There is literally no way for a gun manufacturer, distributor, or retailer to know whether they’re in compliance with these public nuisance laws, because they’re designed to be as vague and subjective as possible.
SCOTUS has already rejected similar claims made by the Mexican government against the U.S. firearms industry in Smith & Wesson v. Mexico, but the Court could drive a stake through the heart of these public nuisance laws by granting cert to NSSF v. James and ruling in favor of the firearms industry. If the Court turns away this case or upholds New York’s law, then the industry will soon be flooded with bogus lawsuits that could cripple gun makers and gun sellers nationwide.
Given the Court’s calendar and the opportunity for New York Attorney General Letitia James to reply to the cert petition, the justices probably won’t take up this issue in conference for a couple of months. If they do grant cert, oral arguments would likely take place this fall or perhaps early in 2027.
NSSF v. James joins a long list of 2A-related cases awaiting the Court’s attention, including bans on commonly owned firearms and magazines and prohibitions on adults under the age of 21 exercising their right to keep and bear arms. The justices agreed to hear two Second Amendment cases this term, but they’re going to need to be even more active than that going forward if the Second Amendment is to ever become a true first-class right of we the people.
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