The political lawfare campaign to dismantle the lawful firearms industry by holding it liable for the criminal misuse of its constitutionally protected products should have never started. U.S. tort law has long held that a person or entity cannot be held responsible for a third party’s criminal acts. If a violent criminal acquires and misuses a firearm, motor vehicle, baseball bat, computer, or telephone to commit a crime, it is the criminal who is liable for the conduct, not the company that produced the lawful product.
This malicious effort certainly should have ended in 2005, when President George W. Bush signed the broadly bipartisan Protection of Lawful Commerce in Arms Act (PLCAA). The law codified the longstanding tort principle described above and explicitly rejected efforts to regulate the firearms industry through lawfare, reserving that power (within the confines of the Second Amendment) to the people as expressed through their elected representatives.
Again, this pernicious drive should have been halted by the U.S. Supreme Court’s 9-0 decision in Smith & Wesson Brands v. Estados Unidos Mexicanos (2025) enforcing the PLCAA. The government of Mexico, working with U.S. gun control activists, had attempted to hold U.S. gunmakers liable for criminal violence south of the border.
In a concurring opinion, Justice Ketanji Brown Jackson explained, “Activists had deployed litigation in an effort to compel firearms manufacturers and associated entities to adopt safety measures and practices that exceeded what state or federal statutes required,” adding that the “PLCAA embodies Congress’s express rejection of such efforts—stymying those who, as Congress put it, sought ‘to accomplish through litigation that which they have been unable to achieve by legislation.’”
Still, the firearms industry faces vexatious litigation enabled by intransigent lower court judges.
Daniel Defense, LLC, et al. v. Lowy is an ongoing case from the U.S. Court of Appeals for the Fourth Circuit currently up on cert to the Supreme Court. In this case, the plaintiffs have sued a litany of gun industry members, even those where there is no evidence that their product was used by the criminal during the relevant act. NRA filed an amicus brief in support of the firearms industry members at the Fourth Circuit.
The petition for certiorari explained,
Plaintiffs are victims of a horrific shooting committed by a deeply disturbed individual. They would undoubtedly be entitled to recompense against the perpetrator of that attack had he not chosen to take his own life. But plaintiffs instead decided to try to punish the firearms industry for his crimes, suing more than a dozen manufacturers of firearms and related products—every company that makes any such product the shooter ever purchased. Plaintiffs concede that the shooter lawfully purchased all of those products. And they do not claim that the shooter actually used all of them in the shooting.
Rather, the plaintiffs contend that these companies’ marketing and social media posts give rise to a claim. As the petition for cert went on to note,
plaintiffs claim that this vast array of protected speech marketing lawful (and constitutionally protected) products renders each manufacturer liable for the shooter’s actions even though they do not allege that the shooter ever saw any of that speech.
As the petition points out, the case should be dismissed under a proper reading of the PLCAA or of basic tort law. Moreover, the case implicates the firearms industry’s First Amendment rights.
Another attack vector is what civilian disarmament advocates term “firearm industry responsibility” state laws. These laws attempt to circumvent the PLCAA to impose a duty on members of the firearms industry to institute “reasonable controls” 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 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.
To date, New Jersey has been the jurisdiction most egregious in enforcing one of these dubious statutes.
The National Shooting Sports Foundation (the firearms industry trade association) has an ongoing case in the U.S. District Court for the District of New Jersey challenging the Garden State’s “reasonable controls” law. The organization’s complaint explained the defects of the law, noting,
The Commerce Clause prohibits states from regulating commerce (selling, manufacturing, marketing, etc.) that takes place beyond their borders, even when that commerce has effects within the state. The First Amendment prohibits states from punishing wide swaths of truthful speech about legal products, even if the products are dangerous or the speech is unpopular. The Second Amendment protects commerce in arms. And the Due Process Clause prohibits states from punishing one private party for the conduct of another.
Moreover, the suit explained that New Jersey enacted its “reasonable controls” law “to resurrect the very kinds of lawsuits that the PLCAA was enacted to eliminate” and that the legislation “acknowledges on its face that it is crafted to try to evade the PLCAA.”
In early September, the Third Circuit rejected New Jersey’s attempts to have the case dismissed and ruled that the District Court should examine the merits of NSSF’s case.
Another ongoing suit with severe implications for the exercise of both First and Second Amendment rights is the Everytown Law-supported Illinois case Roberts v. Smith & Wesson Brands, Inc. As with the other cases, the lawsuit seeks to hold a gun manufacturer and federal firearms licensees (FFLs or gun dealers) liable for third party criminal acts. In this case the perpetrator used a Smith & Wesson M&P15 rifle. And again, the suit cites what should be the manufacturer’s First Amendment-protected marketing to advance their case.
This case has garnered significant attention in the online gun rights community as an attack on firearms media.
On September 14, prominent Youtuber, attorney, and owner of thefirearmsblog.com James Reeves took to X.com to report that he was subpoenaed in connection with the case. Reeves explained,
I was just subpoenaed in an anti-gun lawsuit...for being a guntuber. Link to the lawsuit is below. The case is Roberts v. Smith & Wesson, and it's the same playbook, almost copy+paste, of the Soto v. Bushmaster "Sandy Hook" lawsuit against Remington, which put them out of business.
…
Now they are reaching beyond S&W and into firearms media. I was served with a subpoena demanding years of info and analytics from me about S&W and reviews I've done. The part that should concern my fellow gun reviewers: Their subpoena defines an "Advertisement" to include even unpaid organic social-media content. In other words, by the plaintiffs' definition, even an independent review of a lawful product is "advertising," and they think they are entitled to any info that touches on essentially any YouTube video about the M&P15 during the relevant period.
Reeves went on to correctly point out that the lawsuit is an “end-run around the federal Protection of Lawful Commerce in Arms Act.” Reeves also shared a copy of the subpoena.
The implications of the lawsuit and subpoena are clear. Gun control advocates are trying to chill First Amendment-protected speech about Second Amendment-protected conduct, as well as the conduct itself.
Everytown’s new campaign to undermine First and Second Amendment rights came into clearer focus two days after Reeves’s post, when Everytown media front The Smoking Gun published a piece attacking Youtube content creating firearms enthusiasts and gun rights supporters, titled “Loaded Content.”
NRA will continue to support litigation and legislation to ensure the PLCAA is properly interpreted and enforced. As made clear by their actions, civilian disarmament advocates will work well outside the normal political process to assault Second Amendment rights, and they are more than willing to suppress First Amendment rights to achieve their goal.
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