In light of the legal challenge filed today by 14 gun manufacturers and the National Shootings Sports Foundation, which represents the gun industry, below are key facts about New York’s landmark law to hold the gun industry accountable.
This landmark legislation, the first of its kind in the nation, creates a new pathway for victims, their families, and the state of New York to hold bad actors in the gun industry accountable for their role in fueling the epidemic of gun violence that is ravaging communities across the Empire State. When Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), it specifically provided an exception for lawsuits relying on violations of federal or state laws applicable to the sale or marketing of firearms. New York’s law is just such a statute: by relying on this exception in PLCAA, the new provisions created by this legislation allow lawsuits to proceed against gun manufacturers, wholesalers, and dealers whose misconduct harms New Yorkers. Opponents of this legislation, including the NSSF, are desperate to portray it as unconstitutional in order to avoid accountability, but these arguments are meritless and should be rejected. Citations and more detailed explanations are available in this June memo.
“New York’s landmark law has started a new chapter in the gun safety movement, one where the gun industry can be held accountable for reckless actions that contribute to gun violence,” said Eric Tirschwell, executive director of Everytown Law, the litigation team affiliated with Everytown for Gun Safety. “This legal challenge is yet another sign this law will have real power to change dangerous industry practices. New York’s law rests on a very strong legal foundation and is fully consistent with both federal law and the U.S. Constitution.”
Meritless claim #1: This legislation is ‘contrary to the will of Congress’
The NSSF argues that this legislation somehow violates the will of Congress when it enacted PLCAA. It does no such thing. In fact, Congress specifically drafted PLCAA to allow liability when a manufacturer or seller of a firearm knowingly violates a state statute “applicable to the sale or marketing of the product[.]” Those who violate these new regulations would not be entitled to the protections afforded by PLCAA.
Meritless claim #2: This legislation is unconstitutionally vague
The NSSF has claimed that this legislation is unconstitutionally vague, “because it would impose liability for ‘unreasonable’ conduct while not making clear what conduct is required to be considered ‘reasonable.’” This argument misses the mark for at least two reasons. First, the legislation defines “reasonable controls and procedures,” thus providing clear guidance to members of the gun industry about their obligations under these new laws. In a second provision, the legislation prohibits “unreasonable” conduct that “create[s], maintain[s], or contribute[s] to a condition in New York state that endangers the safety or health of the public.” This language hews closely to the language in New York’s current public nuisance law, a law that was adopted in 1965 and is plainly a valid exercise of the state’s police power. In any case, juries are regularly asked to determine whether certain conduct is reasonable or not.
Meritless claim #3: This legislation violates the Dormant Commerce Clause
The legislation is likely to survive a challenge under the Commerce Clause. In part, this is because the dormant Commerce Clause is principally concerned with stopping protectionist state laws that discriminate against out-of-state businesses. Here, the legislation treats gun industry members evenhandedly based on their conduct, not their location: specifically, whether they knowingly or recklessly endanger public safety in New York, or whether the products they manufacture, market, import, or offer for sale are destined for wholesale or retail in New York. Absent discrimination against out-of-state businesses, a dormant Commerce Clause challenge will fail unless it is proven that a bill’s burden on interstate commerce is “clearly excessive” in relation to local benefits, or that the bill regulates extraterritorial conduct with no connection to New York. Neither argument is likely to succeed here.
Meritless claim #4: This legislation violates the doctrine of Separation of Powers
Legislatures all over the country, including in New York, have declared statutory nuisances for well over a hundred years—any state’s Code book is filled with them. And legislatures may legislate enforcement through a variety of mechanisms including the judicial branch. The gun industry made a similar argument in support of PLCAA—that lawsuits brought against the firearms industry were “attempt[s] to use the judicial branch to circumvent the Legislative branch of government . . . thereby threatening the Separation of Powers doctrine[.]” Here, it is a legislative body that has determined how firearms manufacturers, wholesalers and dealers selling guns destined for New York are to be regulated, and it is the legislature that has given the power of enforcement to the Attorney General and to New Yorkers who suffer injury attributable to gun industry misconduct.