The U.S. Supreme Court took no action today on the five cases dealing with bans on “assault weapons” and “large capacity” magazines that it’s heard in conference more than a dozen times, but it did address another 2A-related case that was discussed in conference for the first time last week.
Unfortunately, SCOTUS didn’t grant cert in National Shooting Sports Foundation v. James. Instead, without a dissenting opinion the Court denied cert to the challenge to the New York law meant to facilitate lawsuits against firearm industry members by doing an end-run around the federal Protection of Lawful Commerce in Arms Act.
The New York law, signed by former Democratic Governor Andrew Cuomo in 2021, requires the gun industry to use reasonable safeguards to protect against gun trafficking, theft and the use of “straw purchasers” who buy firearms for someone else. It allows civil lawsuits by New York state and local officials as well as members of the public.
The National Shooting Sports Foundation said the law was preempted by a 2005 federal law called the Protection of Lawful Commerce in Arms Act that shields the gun industry from civil liability when its products are used in crimes.
… The Manhattan-based 2nd U.S. Circuit Court of Appeals upheld New York’s law last year.
Circuit Judge Eunice Lee, an appointee of Democratic former President Joe Biden, wrote that Congress intended to preserve “at least some causes of action” when a defendant’s knowing violation of federal or state firearms sales and marketing laws was a proximate cause of harm.
Concurring, Circuit Judge Dennis Jacobs, an appointee of Republican former President George H.W. Bush, agreed that the New York law was not preempted, but accused state lawmakers of having “contrived a broad public nuisance statute that applies solely to gun industry members and is enforceable by a mob of public and private actors.”
In its reply brief, NSSF contended that the Second Circuit’s decision “green-lights nullification of federal law and creates a circuit split” that must be addressed by the Court.
Under the Act’s so-called predicate exception, such suits may be brought if (but only if) they allege that the industry member “knowingly violated a State or Federal statute applicable to the sale or marketing of [a firearm or related product], and the violation was a proximate cause of the harm for which relief is sought.” In Ileto v. Glock, the Ninth Circuit held that that narrow exception does not permit states to circumvent the PLCAA’s core command simply by codifying “general tort theories of liability” (such as negligence and public nuisance) in statutes that apply to members of the firearms industry. Here, by contrast, the Second Circuit held that the predicate exception allows exactly that, empowering states to revive the same abusive tort theories that Congress enacted the PLCAA to stamp out through the simple expedient of codifying them in statutes that apply to commerce in arms.
New York is hardly the only state to have adapted their public nuisance laws to serve as vehicles for litigation against gun makers, distributors, and sellers. Today’s decision, like it or not, will only serve as a green light for other anti-gun legislatures to do the same.
It may be that SCOTUS is waiting for a lawsuit brought under the New York statute to be fully litigated before taking up the issue, but that means that any future defendants will have to spend an awful lot of time and money fighting New York before getting the opportunity to appeal a potential verdict to the Supreme Court.
Today’s decision is incredibly frustrating, and a setback for those who were cheered by the Court’s unanimous decision throwing out Mexico’s lawsuit against Smith & Wesson last term. I’m hopeful that the reason we didn’t see a written opinion dissenting from the denial by one of the Court’s more conservative members is that the justices are willing to take up the issue when a case involving New York’s law reaches their doorstep in the future, but there’s no guarantee that’s what’s going on. Sadly, there will be a lot of opportunities for SCOTUS to step in going forward, because there will be no shortage of cases involving the public nuisance laws in New York and other Democrat-controlled states being used to go after gun makers and sellers seeking to hold them financially responsible for the actions of criminals.
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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