Public Nuisance Liability and the Irrelevance of the Second Amendment

1. Introduction

In 2005, the U.S. Congress bestowed on gun makers and sellers broad immunity from civil lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA). Congress explicitly based this immunity on the need to protect Second Amendment rights, pitting defenders of those rights against victims of criminal gun violence seeking to hold gun merchants accountable for their role in such violence. But a contest between civil liability for gun makers and sellers and respect for Second Amendment rights is neither inevitable nor necessary. As a new effort to ground civil liability in state legislation shows, the theory underlying the litigation that precipitated PLCAA has nothing to do with the rights secured by the Second Amendment. It may be politically expeditious or commercially advantageous for the gun industry to link the two, but the link is not legally sound.

States have begun to consider and pass statutes that codify the public nuisance theories of civil liability that animated a wave of litigation against gun industry actors in the late 1990s and early 2000s.  New York has already enacted such legislation.  A similar bill has been introduced in California.  The New York law identifies precise ways in which the conduct of gun makers and sellers can, in combination with unlawful use of their products, constitute a public nuisance. It therefore invites renewed attention to the issue that Congress identified as the central basis for PLCAA: whether there is any threat to Second Amendment rights from litigation premised on the theory that manufacturers who create an overabundance of guns with excessive criminal appeal create a public nuisance. By codifying the precise elements of a cause of action based on this theory, New York’s statute makes it easy to show it does not.

2. Public Nuisance Suits Before PLCAA

In the early 2000s, gun merchants got nervous. They were losing some appellate motions to dismiss suits claiming that they had created a public nuisance by channeling into particular localities streams of cheap handguns especially suitable for criminal use. These rulings brought cases to the brink of pretrial discovery and jury consideration as to whether gun makers and sellers were making public spaces excessively unsafe by encouraging criminals to obtain and use certain guns. If the answer was yes, injured plaintiffs would be entitled to remedies, including damages and injunctions requiring gun makers and sellers to change their conduct in specific ways.

Though some appellate courts ruled that plaintiffs bringing this sort of claim were failing to state claims under state law, the survival of other nuisance suits motivated the gun industry and its trade associations to lobby Congress to extinguish injured parties’ right to hold gun makers and sellers civilly accountable for their role in gun violence. The result was PLCAA. Upon its enactment, many courts -- though not all of them --  dismissed pending public nuisance claims against gun merchants.

3. Making Public Nuisance Suits Compatible With PLCAA

PLCAA itself included some exceptions to its otherwise broad grant of immunity. One permits suit when a gun maker or seller has knowingly violated a statute applicable to the sale or marketing of a gun and thereby proximately causes a harm, even if a criminal actor also played a causal part.  This is sometimes referred to as the “predicate exception,” because to bring suit a plaintiff must first identify a “predicate statute” that governs the sale or marketing of the firearm used to inflict the harm. If a plaintiff can establish a gun maker’s or seller’s violation of the statute and show that the infraction was a legally significant cause of their harm, injured plaintiffs may avoid PLCAA’s prohibitions and possibly win a remedy from the maker or seller of the gun that caused their injuries, even if the gun was used by a criminal. Some courts have found that state statutory provisions barring unethical marketing and advertising practices supply the right sort of predicate. These provisions are part of state consumer protection legislation and are meant to prevent producers and sellers of goods from engaging in predatory and oppressive marketing and advertising.

Unlike these consumer protection laws, New York’s new public nuisance statute does not apply generally to makers and sellers of products. Instead, it pinpoints how the manufacturing, marketing, advertising, and distribution of guns can constitute a public nuisance, precisely codifying the public nuisance theories underlying the lawsuits that PLCAA cites as reason for its enactment. New York’s legislated nuisance cause of action resolves the concern about judicially developed doctrine stated in PLCAA. Furthermore, the specificity of the New York statute serves to insulate it from objections that it is not especially related or applicable to gun makers’ and sellers’ conduct. Finally, the statute’s particularity also makes clear that its public nuisance cause of action is divorced from anybody’s Second Amendment rights.

4. The Rights Secured by the Second Amendment and the Provisions of New York’s Law

In District of Columbia v. Heller, the U.S. Supreme Court decided that the right to bear arms encompasses the right to bear them for purposes of individual self-protection, particularly in the home, as well as the right to bear them for purposes of maintaining a well-regulated militia. Whatever the merits of this interpretation of the Second Amendment, I take it as a given in the following analysis.

Two substantive provisions are at the heart of New York’s gun industry public nuisance statute.

  1. No gun industry member, by conduct either unlawful in itself or unreasonable under all the circumstances shall knowingly or recklessly create, maintain or contribute to a condition in New York state that endangers the safety or health of the public through the sale, manufacturing, importing or marketing of a qualified product.
  1. All gun industry members who manufacture, market, import or offer for wholesale or retail sale any qualified product in New York state shall establish and utilize reasonable controls and procedures to prevent its qualified products from being possessed, used, marketed or sold unlawfully in New York state.

Together these detailed, interlocking provisions plainly have nothing to do with anybody’s right or ability to own any particular firearm for purposes of self-protection. They are exclusively concerned with public safety and public health, two canonical examples of the sort of common rights whose transgression is at the core of public nuisance. The provisions leave open to gun makers and sellers all manner of conduct in the pursuit of the business of making, marketing, and distributing guns. The statute allows any conduct that does not knowingly and recklessly endanger the public health and safety via unlawful or unreasonable manufacturing and marketing practices. New York’s new law thus targets those who make and produce guns, not those who bear them, for the exclusive purpose of minimizing the unlawful use of guns, an activity not protected by the Second Amendment, with the overall objective of securing common rights to public safety and public health, rights wholly compatible with individuals keeping guns in their homes and using them for self-protection or participating in well-regulated militias.

In addition to its substantive provisions, the statute explicitly deems violations a public nuisance, regardless of whether offending gun makers and sellers acted with the purpose of causing harm. It then authorizes the state attorney general or a city’s corporate counsel to bring public nuisance causes of action to address infractions of the substantive provisions. Finally, it creates a private cause of action for public nuisance for those who suffer injury due to such violations. None of these measures have any more to do with Second Amendment rights than the substantive content of the statute does. Neither state nor local attorneys are authorized to sue anybody bearing any kind of arms. The statute does not create any cause of action that could be brought against an individual gun owner for possessing or using arms. The private cause of action can only be brought against gun makers and sellers for their conduct.  While it might be the case that the Second Amendment would afford gun makers and sellers some protections from some governmental action, it is well-established that nothing in Second Amendment jurisprudence requires government to allow possession of every type of firearm. Even if it were true that holding gun merchants civilly liable for conduct that proximately interferes with public rights to health and safety would prompt merchants to withdraw some firearms from the marketplace, that would not support a Second Amendment objection to a statute like New York’s.

If neither the procedural nor substantive provisions of New York’s law relate to anybody’s right to bear arms, one might wonder why this law prompts any discussion of the Second Amendment at all. That takes us back to PLCAA.

5. PLCAA and the Second Amendment

The findings and purposes section of PLCAA itself puts the Second Amendment front and center. The first two findings state the Second Amendment and what became Heller’s interpretation of it. Subsequent clauses take notice of the first wave of public nuisance suits brought against gun producers and sellers. Then the statute maintains the necessity of immunizing the gun industry from civil liability in order to protect Second Amendment rights. If, however, both the previously judicially recognized public nuisance causes of action and the emerging legislatively created ones rest on the same substantive legal theory, and that theory does not implicate the Second Amendment, Congress was either confused or dishonest when it cited a need to protect Second Amendment rights as the purpose of PLCAA.  Moreover, by justifying gun merchant immunity as a matter of Second Amendment rights, PLCAA itself suggests that when there is no threat to such rights, we should be unconcerned about civil liability actions against gun maker and seller liability regardless of whether these actions arise from common law or by statute.

In other instances where Congress has limited the availability of civil causes of action against products manufacturers, Congress has specified policy objectives thereby served. For example, when Congress eliminated products liability and medical malpractice causes of action in favor of an administrative compensation program for those injured by certain vaccines, it did so to ensure an adequate supply of vaccines and to streamline the compensation process for those legitimately injured by them. For the sake of a public health objective, Congress shielded vaccine makers and sellers and physicians from some civil causes of action, thereby attempting to lower the costs of producing and distributing a product involved in the public health objective. Public health is a policy goal, not a constitutionally protected civil right.

By the same token, Congress could permissibly decide that the sale and manufacture of guns, like the sale of and manufacture of vaccines, rationally serves a desirable policy goal, including the goal of promoting gun ownership and the active exercise of Second Amendment rights to self-protection in the home and participation in well-regulated militias. Congress might decide that a citizenry armed with guns serves a broader public interest in public safety or national defense. All these policy goals could ground immunity from public nuisance civil suits for gun makers and sellers. Without the need to defend conduct that would otherwise give rise to damage awards or incentives to invest in new technology and marketing strategies, gun makers and sellers save money. They might pass their savings along to gun purchasers directly in the form of lower prices or reinvest the savings into improving their products, creating more competition, which could also yield lower prices for gun consumers.

Perhaps these rationales seem implausible, but Congress has the right to legislate on the basis of flimsy reasoning. So long as granting immunity from civil liability respects equal protection and due process and is a proper exercise of Congress’s commerce clause power, Congress may limit access to court for parties who would otherwise be entitled to bring civil actions and shield manufacturers and sellers from liability to them. Had Congress simply and clearly wanted to prevent courts from hearing public nuisance claims against gun makers and sellers, it could have given garden variety policy reasons for this choice. Injecting the Second Amendment into PLCAA just confuses the issue.

6. Second Amendment Politics and Gun Industry Profits

As part of their marketing and advertising strategies, gun makers regularly identify themselves, their businesses, and their products with the Second Amendment. But the Second Amendment does not protect the profit margins of those who produce and sell guns. Nor does it protect the sale and manufacture of every possible firearm. Even if liability for public nuisance puts a dent in gun industry profits or if manufacturers and sellers decline to produce or distribute certain firearms, there is no constitutional basis for shielding gun merchants from liability for creating public nuisance.

Even the cheap handguns and assault weapons favored by criminals and mass shooters could still be made and sold without furnishing any basis for the sort of nuisance suit delineated by the New York statute. If they refrain from advertising and marketing geared especially to criminal users, and if they take reasonable measures to keep their wares from being used by criminals, then gun makers and sellers can continue to put inexpensive handguns and assault weapons into the stream of commerce for lawful use without exposing themselves to claims for public nuisance under statutes like New York’s.

Safeguarding Second Amendment guarantees does not require bolstering manufacturers’ and sellers’ profits derived from endangering public health and safety by stoking the unlawful, lethal, and injurious use of guns. In fact, PLCAA’s framing as a civil liberties statute does a disservice to those committed to the rights protected by the Second Amendment. The profit motives that drove the gun industry to lobby for PLCAA have nothing to do with preserving the freedom to protect oneself in one’s home or to participate in a well-regulated militia. To cloak a policy choice to favor the gun industry in concern for civil rights cheapens the rights in question. It makes pawns of those who authentically believe that guns have an important place in securing individual freedom and well-being, harnessing their commitments for the financial gain of commercial actors who go out of their way to create an overabundance of guns with excessive appeal to individuals who obtain and use them to unlawfully threaten, injure, and kill other people.  

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]