By Cam Edwards
December 16, 2021
Months before California Gov. Gavin Newsom decided he wanted to use Texas’ law allowing private citizens to sue abortion providers as the basis for a new gun control law (in fact, before the Texas law even became law), New York Democrats had already introduced and approved a similar bill aimed at gun companies and firearms retailers.
Ironically, the new law encouraging lawsuits against gun makers has led to a coalition of fourteen gun makers, distributors, and retailers, along with the National Shooting Sports Foundation, to file a new lawsuit of their own in federal court asking that the New York law approved by then-Gov. Andrew Cuomo earlier this year be tossed out and ruled unconstitutional.
The law tweaked New York’s public nuisance statute to allow individuals and state officials to sue gun makers and sellers if a gun is used in a crime, but as the NSSF argues in its request for a preliminary injunction, the gun control law runs afoul of the Protection of Lawful Commerce in Arms Act.
This precise form of liability is directly prohibited by a federal statute that was passed for the purpose of preventing New York from doing exactly what it is (once again) trying to do. Twenty years ago, New York sued dozens of companies that manufacture and sell handguns, asserting the same theory of “public nuisance” liability the new statute codifies. The suit was dismissed, but the idea proved popular. Scores of similar suits were filed around the country— some by municipalities (like New York City), some by individuals—all seeking to make firearm and ammunition manufacturers and sellers liable for harm caused by criminal acts of others. In 2005, Congress concluded such lawsuits are “an abuse of the legal system,” and it passed a law prohibiting states from imposing liability on businesses that make or sell firearm and ammunition products “for the harm solely caused by the criminal or unlawful misuse” of those products.
New York is now attempting to accomplish through legislation what it was unable to achieve through litigation: to circumvent federal law and hold manufacturers and distributors of firearm and ammunition products liable for injuries caused by the unlawful use or possession of those products. Pursuant to the new statute, businesses that make, sell, import, or market firearm or ammunition products—whether or not their conduct was “unlawful in itself,” and whether or not they “acted for the purpose of causing harm to the public”—can be sued in New York State if, by lawfully selling or advertising their products, a jury determines that they “contribute[d] to a condition in New York state that endanger[ed] the safety or health of the public.”
As the NSSF points out, not only does this completely contradict the language of the Protection of Lawful Commerce in Arms Act, it’s also an unconstitutional violation of the Commerce Clause by purporting “to regulate commerce in all 50 states (and exempt products made and sold solely within New York)” as well as a violation of due process protections because of the vagueness of the law.
We don’t hold Ford or any of its dealers responsible for the actions of drunk drivers. I’ve never heard of a knife maker being sued after a stabbing. Has Apple or any other computer maker ever been sued over the illegal activities of hackers? Why then should gun companies be singled out and blamed for the actions of criminals? Probably because New York Democrats aren’t trying to put car companies, knife makers, or the personal computing industry out of business. The firearms industry, on the other hand, has long been a target of the gun control movement and its allies in political office.
The NSSF’s senior vice president and general counsel Lawrence Keane says the new lawsuit will “end this unconstitutional attack on the businesses, large and small, vital to Americans’ Second Amendment rights,” and I hope he’s right, though I suspect the mere filing of the litigation isn’t going to be enough to dissuade Newsom from moving forward with his plan to encourage and facilitate lawsuits against the makers and sellers of “assault weapons” and “ghost guns.”
New York being on the receiving end of a legal smackdown, on the other hand, might do the trick. I’m rooting for the quick granting of a preliminary injunction in NSSF v. James, not just to get one bad law off the books, but to prevent other similarly awful ideas from becoming enshrined in statute.