The Second Circuit Court of Appeals has upheld a New York law designed to thwart the Protection of Lawful Commerce in Arms Act that allows gun makers, distributors, and retailers to be sued under the state's public nuisance statute.
A three-judge panel previously upheld the law, even though one concurring judge acknowledged it “is nothing short of an attempt to end-run PLCAA” and “contravene federal law,” and on Monday the Second Circuit rejected an en banc appeal by the National Shooting Sports Foundation and several individual companies that had sued the state.
The appellate court's denial of an en banc review means the plaintiffs' next stop will be the Supreme Court, which tossed out Mexico's lawsuit against many major gunmakers earlier this year in a unanimous decision that found the lawsuit violated the PLCAA.
The Court is also slated to consider another PLCAA-related lawsuit in conference next week; this one an appeal by a Pennsylvania couple who sued a gun maker and retailer after their son was killed in a negligent shooting by one of his friends. The couple is represented by, among others, former Brady litigator Jonathan Lowy, who also spearheaded Mexico's failed lawsuit.
The question presented in Gustafson v. Springfield isn't quite the same as the one in NSSF v. James, and the Court may very well decline to hear the case given that the Third Circuit ruled the couple's lawsuit a violation of the PLCAA. The NSSF case, though, could (and hopefully will) draw the interest of at least four justices when SCOTUS has a chance to consider it in conference.
New York's public nuisance law is one of several statutes that have been enacted by blue states as a way of avoiding the Protection of Lawful Commerce in Arms Act. California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Jersey, and Washington have all adopted laws allowing civil suits over a lack of "reasonable controls" or marketing strategies that are supposedly aimed at minors and criminals or promote illegal gun use. Virginia Democrats have already introduced a measure of their own ahead of the 2026 session, and more blue states are likely to follow unless or until SCOTUS steps in.
The NSSF argued in its en banc petition to the Second Circuit that the panel's decision upholding New York's law puts it in direct conflict with cases from the Ninth Circuit and the D.C. Court of Appeals, which may make their lawsuit more enticing to the justices. As the NSSF noted:
The point of the PLCAA is to protect firearm industry members—and them alone—from suits “based on theories without foundation in hundreds of years of the common law.” Yet, under the panel decision, states can “end run PLCAA” simply by codifying the same abusive tort theories in statutes that apply only to the firearms industry.
That is nothing short of an invitation to defy federal law. If the PLCAA means anything, it means that states cannot use tort litigation to make industry members redress harms caused by criminals simply by pleading that they could have done more to prevent gun crime. “Congress intended to preempt general tort law claims,” full stop.
NSSF and its co-plaintiffs could file their appeal before the end of the year, but given the schedule for response and reply briefs, if the Supreme Court does grant cert oral arguments would almost certainly take place next fall. That might actually work in NSSF's favor, since the Court has already granted cert to two Second Amendment-related cases this term and has several more pending review in conference.
These public nuisance statutes aimed at the firearms industry really are nothing more than an attempt to do an end run around the PLCAA and defy federal law, and they pose an existential threat to gun makers, distributors, and retailers. The Supreme Court's unanimous decision in Smith and Wesson v. Mexico was a big step in ensuring the PLCAA can prevent some frivolous lawsuits from being filed, but there is still more work to do to protect the lawful commerce in arms.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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