The state of New York is one of those anti-gun states that really, really wants to challenge California for the title of most gun-controlled state in the nation. To be fair, they’re definitely putting in the effort.
One of their latest measures allows people to sue gun manufacturers because of the actions of a third party, something already illegal under federal law.
As the editorial board of the Wall Street Journal notes, though, this is likely to lead to another Supreme Court challenge.
Can New York target out-of-state businesses that make or market guns with “public nuisance” lawsuits if those guns are used in a crime? We’re about to find out, as 14 gun makers and sellers have challenged the state law’s constitutionality in federal court.
Albany passed the law in July, but it is part of a decades-long effort to make it too expensive for these companies to stay in business. Twenty years ago, as secretary of Housing and Urban Development, Andrew Cuomo characterized his anti-Second Amendment strategy as “death by a thousand cuts.” As New York Governor he signed the law before he resigned in disgrace amid multiple sexual harassment claims.
The New York law runs headlong into the federal Protection of Lawful Commerce in Arms Act of 2005, which is meant to stop this kind of state mischief. The plaintiffs challenging the state law claim that it violates the U.S. Constitution’s Supremacy Clause, which prohibits states from interfering with the federal government’s constitutional powers.
They also cite a violation of the Commerce Clause because New York is regulating gun sales outside the state while leaving most New York gun businesses unaffected. The suit throws in a Fourteenth Amendment due process claim because it says the law is “impossibly vague.”
A Memo of Law filed by the National Shooting Sports Foundation in support of the complaint adds that the statute “implicates the exercise” of “manufacturers’ and sellers’ First Amendment right to market firearms, and customers’ Second Amendment right to purchase them.” David Rivkin, a contributor to these pages on legal matters, says the New York law is akin to allowing people hit by a drunk who was driving a Mustang to sue Ford.
And that’s precisely what we’re looking at.
Look, if there’s some evidence that these manufacturers are doing something illegal, then present it to the ATF and allow the agency to prosecute them. If there isn’t, then just what do you expect them to do, anyway?
As it is, manufacturers sell very few firearms to individuals. Most go to distributors who then sell to gun stores. That puts at least two degrees of separation between the manufacturer and the eventual bad guy.
And that assumes the person buying the gun is the end-user in such crimes. More often than not, though, it isn’t. Usually, these guns are stolen from the lawful purchaser and end up on the black market that way.
What New York is trying to do is punish a company for something that is completely out of its control.
The reason for these lawsuits is simple. New York can’t regulate gun makers out of business and they can’t forbid them to sell firearms in their state. What they figure they can do, though, is just make it too costly to do business in New York.
What this measure really tries to do is convince gun makers not to allow their firearms to be sold in the state, thus skirting around any Second Amendment issues with trying to ban guns. If you can’t buy a gun because none are available for sale rather than the law forbids it, the Supreme Court is unlikely to say all that much.
However, I think they’ll have a lot to say about this particular measure, and that’s just in time since California Gov. Gavin Newsom wants a similar law in California.