In recent months, NRA-ILA has impressed upon gun owners the severe danger to Second Amendment rights posed by efforts to undermine the Protection of Lawful Commerce in Arms Act (PLCAA). Gun control advocates in anti-gun jurisdictions have enacted, or are seeking to enact, so-called “firearm industry responsibility” or “responsible controls” (gun control) laws that purport to open the firearms industry to the exact types of frivolous lawsuits the PLCAA plainly precludes.
Fighting back against this illegitimate attack on the gun industry, and in turn gun owners, the National Shooting Sports Foundation and several major gun manufacturers have petitioned the U.S. Supreme Court to hear their case (NSSF v. James) challenging the validity of New York’s version of these offensive laws. Gun rights supporters are encouraged to read the petition here.
First a little history.
Gun control supporters have long viewed costly litigation against the firearms industry as a tactic in their overarching strategy to disarm the American public.
In the mid-1990s, gun control advocates, big city politicians, and trial attorneys teamed up to use the courts to bilk the gun industry for millions and force them to agree to gun control measures that gun control supporters were unable to enact in Congress. The lawsuits, sometimes based on a public nuisance theory, sought to hold members of the industry liable for the criminal behavior of those who misused their products.
These suits, though without legal merit, posed a grave threat to the industry – and in turn, American gun owners and their ability to exercise their Second Amendment rights. In 1998, the executive director of the anti-gun U.S. Conference of Mayors was quoted by the New York Times as stating, “[t]he lawyers are seeing green on this issue … they think they can bring the gun industry to its knees.” One of those attorneys “seeing green,” John Coale, was quoted in a 2000 Washington Post article remarking, “[t]he legal fees alone are enough to bankrupt the industry.”
In 2005, Congress passed and George W. Bush signed into law the bipartisan Protection of Lawful Commerce in Arms Act (PLCAA). The PLCAA prohibits lawsuits against the gun industry for the criminal misuse of their products by a third party.
Such a federal law shouldn’t even be necessary.
The PLCAA was enacted to codify a longstanding principle of tort law that gun control advocates sought to erode. U.S. tort law has long held that a person or entity cannot be held responsible for a third party’s criminal acts. Simply put: people are responsible for their own behavior, not the behavior of others. Therefore, if a violent criminal acquires and misuses a firearm to commit a crime, it is the criminal who is liable for the conduct, not the company that produced the firearm. This principle is why Chevrolet, for example, can manufacture and sell cars without being responsible for the actions of drunk drivers.
In 2021, now-disgraced Gov. Andrew Cuomo (D) signed New York SB 7196 into law. The legislation declared that if a member of the firearms industry acts in an “unreasonable” manner or fails to institute “reasonable controls” over their products they are liable for “public nuisance.”
These types of laws impose a duty on members of the firearms industry to institute “reasonable controls” (gun control) over the sale and distribution of their products, on top of the mountains of explicit state and federal statutes and regulations they are tasked to comply with, lest they face ruinous civil liability.
The term “reasonable controls” is vague and ill-defined, resulting in the decidedly unreasonable circumstance where gun industry members can’t know how to comply with the law. These statutes empower anti-gun government officials to abuse the vague language in a manner that imposes ever-expanding restrictions on the industry and its customers, limited only by the officials’ imagination.
The goal is to use the threat of devastating civil liability to force the firearms industry to restrict the rights of themselves and their customers by instituting gun controls that were not enacted (and often rejected) through the democratic process and may be found unconstitutional if imposed directly by government. The entire enterprise is a grotesque and cynical evasion of democratic accountability and constitutional review.
Given the vociferous language of the opposition to the PLCAA at the time of enactment, it is unreasonable to believe that Congress intended the law to be so easily circumvented.
Longtime New York Sen. Chuck Schumer (D) whined in a July 29, 2005 floor speech that the PLCAA “will give a free pass to gun dealers and gun manufacturers,” “it eliminates the last check we have, on bad gun dealers,” and “this bill does wipe away the right of American citizens to have their day in court.”
Lamenting that the PLCAA would foreclose anti-gun advocates’ campaign of gun control by civil liability, Sen. Schumer noted,
And it’s not just about money. Gun dealers and manufacturers also agree to implement safer practices as a result of these negligence suits. This bill would give bad dealers and manufacturers no incentive to enact these safer practices.
Likewise, former New York Sen. Hillary Clinton (D), who was in the U.S. Senate in 2005, complained (inaccurately) in October 2015 that the PLCAA made the firearms industry “the only business in America that is wholly protected from any kind of liability.”
While astute observers may recognize the exaggeration and dissembling in the New York senators’ statements, their language reveals and acknowledges that the PLCAA was intended by Congress to provide broad nationwide protections to the firearms industry that cannot be undone by jurisdictions unhappy with the congressional policy.
As NSSF’s petition for writ of certiorari explained, the New York law was a direct attempt by a state to undo valid federal law. Citing Cuomo’s own words, the petition noted,
New York enacted a law to—in the Governor’s own words—“reinstate the public nuisance liability for gun manufacturers” that Congress prohibited in the PLCAA, in an avowed effort to “right the wrong” that New York believes Congress committed when it enacted that federal law.
Adding, “That undisguised state effort to ‘reinstate’ what federal law expressly forbids is a blatant assault on the [U.S. Constitution’s] Supremacy Clause.”
The PLCAA does permit lawsuits stemming from,
an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought … .
However, as the petition pointed out, a reasonable interpretation of the statute cannot allow this exception to abused by cynical states to swallow the general rule of the PLCAA, as “Congress did not enact such a self-defeating law.” Going further, the petition explained,
In reality, text, context, purpose, and common sense all make clear that the predicate exception exempts only actions predicated on laws that impose concrete obligations or prohibitions that industry members can actually knowingly violate (or knowingly comply with), not laws that merely codify general common-law duties— and do away with proximate cause, for good measure.
Aside from the due process considerations, which at a minimum require that a person or entity must be able to know how to comply with a law, the emphasis on proximate cause is important. In tort law, proximate cause is an action that foreseeably led to a particular harm. Under longstanding tort principles, a third party’s criminal acts supersede other acts and sever the chain of causation. Again, given this principle, the PLCAA shouldn’t even be necessary.
Referring to a basic tenet of statutory interpretation aimed at avoiding absurd results, the petition noted in relation to the PLCAA,
Just as Congress does not hide elephants in mouseholes, it does not place trap doors in statutes that empower states to circumvent federal laws enacted to curb state abuses.
It’s hard to imagine a more flagrant attempt to subvert clear federal law and abuse civil liability than so-called “firearm industry responsibility” or “responsible controls” (gun control) laws. The fact that effort it is occurring in a sphere protected by the Second Amendment to the U.S. Constitution makes this campaign even more detestable, necessitating a swift and forceful response from the U.S. Supreme Court.
In the meantime, gun rights supporters must do everything in their power to inform others of the wide-ranging threat posed by “firearm industry responsibility” or “reasonable controls” (gun control) statutes and mobilize to oppose such legislation.
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