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Litigation Highlight: New York Officials Alleged Ghost Gun Manufacturers Created a Public Nuisance – Now the Settlements Have Started

On June 29, only six days after the Supreme Court struck down a New York law requiring gun owners to show a special need to carry concealed handguns in public, New York officials filed two civil lawsuits against manufacturers of so-called “ghost guns.” The first lawsuit was filed by the state attorney general, Letitia James, and the other was filed by New York City. These were the first suits brought under the state’s recently-enacted public nuisance law that classifies the unlawful or improper marketing or sale of firearms as a public nuisance.

New York State lawmakers passed the public nuisance law at issue roughly a year before the lawsuits were filed. The law requires all firearms manufacturers to establish “reasonable controls” to prevent their guns from being used, marketed, or sold illegally in New York. A manufacturer’s conduct is deemed a nuisance if it fails to institute such reasonable controls and, in turn, endangers the public. The law permits the New York attorney general and municipal governments to bring civil suits against “gun industry members” for failing to institute or utilize reasonable controls. The law also empowers individuals to seek damages if they were proximately harmed as a result of a firearm manufacturer’s marketing or sales tactics.

The measure is the first of its kind in the nation to specifically classify the illegal or reckless marketing or sale of firearms as a public nuisance. Though the federal Protection of Lawful Commerce in Arms Act (PLCAA) protects gun manufacturers and firearms dealers from liability when crimes are carried out with their products, it contains a number of exceptions. The New York law utilizes one of these exceptions: manufacturers may still be sued under a state or federal law that specifically regulates the sale or marketing of products, including laws like New York’s new statute that are written specifically to fit within that exception to PLCAA.  A federal court upheld New York’s law in May against arguments that it was preempted by PLCAA, finding that “Congress clearly intended to allow state statutes which regulate the firearms industry.”  On the other hand, courts have previously held that general nuisance statutes are barred by PLCAA because they do not regulate the sale and marketing of firearms specifically.

In the two lawsuits, New York City and New York’s attorney general allege that the defendant-companies violated the state’s public nuisance law by failing to establish and utilize reasonable controls when marketing and selling tens of thousands of illegal “ghost gun” parts to New Yorkers over the last five years. The term “ghost gun” generally refers to any weapon parts kit, frame, low receiver, or fully assembled firearm that lacks a serial number placed by a licensed manufacturer. The recently modified federal regulatory definition of a firearm includes not only fully-assembled, operable guns, but also the dissembled, core components of guns, known as the frame or receiver, and any weapon-parts kit that can be readily converted into an operable firearm. The ATF’s “frame or receiver” rule has been challenged in court by both gun-rights groups and gun-violence-prevention organizations.

According to the two lawsuits, the ten defendant-companies virtually sell and market disassembled frames or low receivers without federally-mandated serial numbers. Serial numbers enable law enforcement to trace firearms recovered at crime scenes to their purchasers; therefore, the plaintiffs claim the unserialized frames are attractive to criminals seeking to evade detection by law enforcement. Further, plaintiffs allege that these online sales were conducted without the background checks legally mandated for all gun sales in New York, which make the ghost gun parts even more attractive and accessible to individuals barred by law from acquiring firearms. Thus, by marketing and selling these products in a way that both appeals to and permits otherwise-barred individuals from purchasing firearms, the complaints allege the companies failed to establish and utilize reasonable controls in their sale and marketing of unfinished frames and receivers and deliberately endangered the public in violation of the state’s public nuisance law.  

Both lawsuits present a myriad of statistical evidence purporting to show how this lack of reasonable controls has directly contributed to an increase in crime in New York City and state. For example, Arm or Ally, one of the defendant ghost gun manufacturers, allegedly shipped at least 511 packages, which are believed to have included illegal frames and receivers, to purchasers located in New York state between January 3, 2021 and June 7, 2022. Some of these guns, the complaints allege, were subsequently used in crimes in New York. For example, the City’s complaint states that the number of ghost guns seized in connection with New York Police Department arrests has increased at a rapid pace over the last three years (with 175 ghost guns seized so far in 2022). Investigators from the New York City Sheriff’s Office and Office of the Attorney General also conducted undercover online purchases of unserialized frames from each of the defendant manufacturers. According to the complaints, the companies did not perform background checks on these undercover investigators, nor did they require proof of a valid state or city gun license. Some of these orders were delivered in just two business days.

Though these two lawsuits mark the first use of New York’s newly-enacted public nuisance law to combat the illegal or improper marketing or sale of ghost guns, the City’s early efforts have been successful. New York City has reached settlements with four of the five online firearms distributor defendants named in its case. Rainer Arms, LLC (based in North Auburn, Washington), Rock Slide USA (based in Broadway, North Carolina), Salvo Technologies (based in Largo, Florida), and Arm or Ally (based in Kansas City, Missouri) agreed to stop selling and delivering gun components used to assemble ghost guns to New York City residents.

In their respective settlement agreements, Salvo and Arm or Ally also agreed to provide all “identifying information” for the purchasers of their ghost gun parts. Identifying information includes the name, email address, phone number, shipping addresses, and IP (internet protocol) address associated with each purchase. Though New York City agreed it would not publicize nor publicly disclose such identifying information, it is permitted to make the information available to any City agency, including the New York City Police Department, under the agreements.

Though it is unclear exactly why New York City included these provisions, it is possible that the City will use the information to determine whether the manufacturers made large shipments to distributors in the city, and then pursue legal action against those distributors. Similarly, the City might use the information to aid law enforcement in identifying and arresting individuals who purchased the manufacturers’ component parts despite being prohibited by law from possessing weapons (due to a prior felony conviction, for example).

On November 4, the fifth and final defendant in New York City’s suit—Indie Guns—filed its answer to the City’s complaint. In its answer, Indie Guns denies that its sells unfinished frames directly to individual customers in New York City. Indie Guns argues that, even if it sells such frames, the City’s complaint fails to demonstrate that the sales proximately caused the alleged harm because there are no concrete allegations linking the conduct of Indie Guns to the specific crimes referenced in the City’s complaint. The state’s claims against the other five ghost gun retailers also remain unsettled.

Recent legal battles between state and local governments and pharmaceutical companies over the opioid crisis may provide insight into how these remaining claims, and future legal battles between municipalities and ghost gun manufacturers, will unfold. In 2014, state and local governments sued manufacturers and distributors of opioids, including Johnson & Johnson and retail pharmacies, arguing that they created a public nuisance by improperly marketing and selling opioids. Specifically, the governments argued that these companies created a public nuisance by exaggerating the benefits of opioids while downplaying their known risks, including addictiveness, in their marketing and sales practices. These assertions are similar to New York’s claims that selling and marketing ghost guns and component parts without conducting required background checks or verifying buyer permits endangers the public by facilitating access to firearms by violent or unqualified individuals.  

However, in the opioid context, several courts found that the government plaintiffs had failed to sufficiently connect the discrete actions of pharmaceutical companies to a deliberate effort to endanger public health, especially when opioids were legitimately prescribed by doctors. For example, in November 2021, judges in California and Oklahoma ruled that, even if the pharmaceutical companies marketed opioids in a false or misleading way, the plaintiffs failed to show that such improper marketing increased the volume of illegitimate, or illegally prescribed, opioids. In the view of these courts, adverse downstream consequences from medically appropriate prescriptions could not constitute an actionable public nuisance.   

Though the two lawsuits seeking to combat ghost guns bear many similarities to these opioid lawsuits, New York’s remaining ghost gun claims may be more successful if they make it to trial. First, New York law explicitly prohibits the sale, marketing, and distribution of ghost guns and component parts (whereas opioids were generally distributed and prescribed to patients legally). Further, because New York’s new public nuisance law expressly classifies the unreasonable sale and marketing of ghost guns as a public nuisance, the claims are on more solid footing. Finally, while apportioning responsibility in the opioid cases proved difficult because opioids pass through many entities before reaching a patient, ghost gun component parts are often sold directly to consumers online.




Scholarship Highlight: Recent Articles on Bruen, PLCAA Immunity, and Founding-Era Animal Attacks

Today we’re highlighting a few new pieces of Second Amendment scholarship.  The first, an article by Michael Smith, provides a comprehensive critical evaluation of Bruen and its historical-analogy test.  The second, a student note by Nathan Harp, gives an overview of state AG lawsuits under PLCAA’s predicate exception—helpful background for understanding recent suits brought under New York’s gun-industry nuisance statute.   And, finally, an article by Mark Smith makes the historical argument that extending the Second Amendment outside of the home comports with the Founding-era need to protect against wild animal attacks. 

Michael L. Smith, Historical Tradition: A Vague, Overconfident, and Malleable Approach to Constitutional Law

Abstract:

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. Rather than balancing government interests against the scope of firearms restrictions through strict or intermediate scrutiny, the Bruen Court held that a “historical tradition” approach was required. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.”

At first glance, the historical tradition approach may seem desirable. One might agree with the Bruen Court’s assertion that historical legal analysis is easier than the alternative empirical analysis of gun restrictions and their impacts. And the historical tradition approach seems objective, requiring courts to determine historical legal facts rather than engaging in goal-oriented analysis of the desirability and effectiveness of firearms restrictions.

These first impressions are mistaken. The Bruen Court minimizes the difficulty of the historical tradition approach. And, through its vague and virtually nonexistent guidance on drawing historical analogies, the Court leaves numerous avenues for judges and Justices to inject their preferences as they weigh historical evidence and determine whether sufficient evidence exists to establish a historical tradition. This Article examines the Bruen Court’s statement of the historical tradition approach and reveals multiple instances in which the Bruen Court engaged in shoddy historical analysis and took an inconsistent approach to historic evidence in order to arrive at a desired result. In light of the complexity and malleability of the historical tradition approach, the Court will likely continue to twist this approach to achieve its desired ends—a phenomenon that will likely be magnified in the lower courts and in future decisions in Second Amendment and other constitutional cases.

Nathan D. Harp, Imperfect Immunity: How State Attorneys General Could Sue Firearm Manufacturers under the Predicate Exemption to the Protection of Lawful Commerce in Arms Act, 30 Cornell J.L. & Pub. Pol’y 797 (2021)

From the introduction (footnotes omitted):

This Note will examine how States’ Attorneys General could use Soto v. Bushmaster’s legal break-through to sue gun manufacturers under the PLCAA’s predicate exception.

In developing this argument, this Note will first examine the existing legislative framework regarding suits against gun manufacturers. As described above, the PLCAA places severe Federal restrictions on such suits. Yet, many states have enacted their own immunity statutes to shield the gun industry. Understanding the restrictions that State and Federal statues place on Attorneys General is critical for assessing AGs’ potential role in suits against gun manufacturers.

Second, this Note will examine past instances when State Attorneys General have been involved in suits against gun manufacturers. I begin this analysis by exploring lawsuits that Attorneys General directly spearheaded. This discussion must be further bifurcated into pre- and post-PLCAA cases, as Attorneys-General led cases underwent fundamental changes after the PLCAA’s enactment. After considering direct suits against gun manufacturers, I discuss the supporting roles Attorneys General can play in suits other parties spearhead. Namely, State Attorneys General have filed amici briefs in suits filed by municipalities as well as by private parties.

Third, this Note will consider whether State Attorneys General could bring direct actions against gun manufacturers under the PLCAA’s predicate exception. In states that do not afford gunmakers any additional civil protections, Attorneys General may have the opportunity to prosecute actions against gun manufacturers based on unfair or deceptive trade practices. For instance, New York law does not afford civil immunity to gun manufacturers, and the State’s Attorney General can prosecute violations of New York’s unfair trade law. Further, FTC rules or regulations on firearm marketing could potentially overcome gunmakers’ potential defenses under New York law.

Mark W. Smith, ‘Wolves and Grizzlies and Bears, Oh My!’ – Exploring Contexts for Justice Kennedy’s Founding Era Application of the Personal Right to Bear Arms, 46 S. Ill. U. L.J. 467 (2022)

Abstract:

This article focuses attention on an oft-neglected dimension of the individual right to bear arms enshrined in the Second Amendment: the right to self-defense against animals. Although the right to self-defense against criminals and resistance to tyranny have been heavily analyzed as a foundational concern informing the Second Amendment right, the Amendment’s role in protecting people, livestock and crops from animal attacks has been given short shrift. But many of the same concerns that motivated the Founders to keep their guns at the ready for protection from animals, though less in the public eye today, still exist in one form or another.

In the Colonial and Founding eras, defense against wild animal attacks, and protection of home and property against depredation by wild creatures, as well as hunting for sustenance and as a source of income, were some of the most frequent reasons for firearm use.

Though attacks by animals are now rarer than they were, they continue to occur today, and firearms remain a valuable defensive tool against them. And while subsistence and market hunting, common during the Founding period, are less prevalent today, recreational hunting is common, and game still forms an important part of the diet of many Americans and provides a reliable source of high-quality protein.

The importance of the right to bear arms for protection against wild animals in the Founding period confirms that the Second Amendment right was intended to extend beyond the home. The continued need for firearms for self-defense, the protection of crops and livestock, and hunting reaffirms the wisdom of that decision.




Scholarship Highlight:  Hillel Levin and Timothy Lytton on PLCAA and Bruen

In a recent article, Hillel Levin and Timothy Lytton consider the Protection of Lawful Commerce in Arms Act (“PLCAA”) and its statutory exceptions to gun industry immunity in the wake of Bruen

Levin and Lytton ask the interesting question of whether the lack of analogous historical use of civil lawsuits against gun manufacturers means that suits under PLCAA’s “predicate exception” are unconstitutional under Bruen—even if the state laws that authorize those suits are themselves constitutional.  For example, New York recently passed a law authorizing public nuisance suits under the predicate exception, which allows gun manufacturers to be sued for “knowingly violat[ing] a State or Federal statute applicable to the sale or marketing of the[ir] product.”  PLCAA and its statutory exceptions were a major topic of discussion at our Privatizing the Gun Debate conference this past spring, and Heidi Li Feldman wrote a highly informative blog post after the conference about PLCAA and state nuisance laws that utilize its exceptions.

You can read Levin and Lytton’s piece, Firearms Regulation through Constitutional Litigation, here.




A New Call to Arms: Rewriting Second Amendment Threats

The Protection of Lawful Commerce in Arms Act (PLCAA), codified at 15 U.S.C. § 7901 et seq., has nearly banished the specter of civil liability for covered gun industry entities. PLCAA was predicated on the claim that gun industry actors, including firearm manufacturers and sellers, were under siege from baseless lawsuits founded on novel legal theories. Prior to its passage, several state courts had held that these entities could be held responsible for knowingly or recklessly distributing their products through sketchy sellers, essentially turning a blind eye to business practices that contributed to gun violence.

In addition to its legal consequences, however, PLCAA had other social and cultural effects. It has helped to establish and reinforce a new narrative supporting contemporary gun rights state legislation. The claim that the firearms industry is under siege has now morphed into the assertion that the Second Amendment itself is under assault, that firearms are disfavored, and that those who own, carry, or use firearms are targets of discrimination.

The breadth and assumptions of PLCAA have also influenced recent state gun rights legislative advocacy, incentivizing measures like permitless carry. To personalize the narrative of gun rights “under siege,” gun rights advocates mobilize citizens to testify in legislatures across the country about how state law schemes infringe on their Second Amendment rights. Many of these laws have been on the books for years but were not questioned until recently. Nearly all are based on traditional doctrinal premises such as home rule and the “longstanding regulations” and “sensitive places” distinctions substantiated in Heller. For example, several state legislatures have assumed the mantle of regulating firearms and ammunition, lifting it from the shoulders of municipalities and cities.

One of the more popular deregulation measure seems to be permitless carry, which has swept through the country at an unprecedented pace. Permitless carry is predicated on the idea that the Constitution itself serves as a citizen’s permit to carry (hence its nickname, “Constitutional Carry”). Politicians who support permitless carry legislation often claim that they were merely fulfilling the founding fathers’ commitments and restoring tradition. From this vantage point, all measures that delay the exercise of the Second Amendment right must fall.

Indiana is one of the many states that have wrangled with permitless carry this past legislative term. Gun rights advocates testified before the Indiana General Assembly that permits—which had been made free in 2021—were still an “undue burden.” Although he is charged with defending state law, including the current permitting system, Indiana Attorney General Todd Rokita sent an employee to convey his support for the measure on the grounds that it best effectuated residents’ constitutional rights.

Implicit in permitless carry is the idea that a state has somehow gone “off track,” deviating from the founders’ original intent in enacting the Second Amendment to protect public safety. Supporters speak of “restoring rights,” and have novel ideas for reevaluating how the right to bear arms should be balanced against State police powers. To these individuals, the Second Amendment is a “second class” right. The backlash against this alleged subordination of the Second Amendment also spills over onto firearms and their owners. In its most extreme form, it can encourage fetishization of firearms and their use, a strange preoccupation with preserving all firearms and all owners from stigma, harm, or accountability under all circumstances. One compelling example of this fetishization are state laws prohibiting the destruction of seized firearms. Firearm carry as a behavior is also subject to fetishization. The idea that government is coming between good guys and their guns—even temporarily—is deemed intolerable. For permitless carry advocates, there is now an urgency to effectuate one’s right to carry, a new “call to arms” that must be consummated as speedily as a firearms owner desires.

Thus, PLCAA does more than render the gun industry largely immune from liability. It also paves the way for other state law deregulation schemes. In her article “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Reva Siegel states, “struggle over the meaning of constitutional memory is a medium through which community in disagreement is forged.” This concept of constitutional memory is critically important; new constructions of constitutional memory are drastically different than past interpretations. Unlike prior iterations of Second Amendment interpretation, gun rights advocates who support measures like permitless carry proselytize a more absolutist construction of the right to bear arms. This reconception has little room for balancing Second Amendment rights against other concerns (including those falling under the 10th Amendment State police powers) or for complying with public safety measures such as obtaining a permit to carry.

In the wake of the Indiana debate over permitless carry, I’ve found myself musing over PLCAA’s larger cultural, social, and policy repercussions. PLCAA attempts to impose a presumption that firearms owners, and firearms as objects, are reasonable and work together responsibly. Under this view, any dysfunction visible comes from uncontrollable externalities, such as criminals. But the very need to pass such sweeping protections for the gun industry suggests that these assumptions do not always hold true, and the distinction between responsible, functional owners and firearms and irresponsible, dysfunctional owners and firearms is more blurry than the gun industry and other stakeholders would like. Instead of meriting a high degree of deregulation, the Second Amendment warrants more stringent measures.

The ways in which we talk about the Second Amendment are also changing, becoming more uncompromising. Many advocates hang their arguments upon the feeble nail of “shall not be infringed,” and maintain that that phrase literally means what it says – that the right to bear arms is absolute, that it cannot be compromised, that it encompasses all or means nothing. Referring to any restrictions on obtaining or carrying a firearm as “undue burdens” casts these behaviors as cut from the same cloth as the decision to get an abortion. Both are enactments of bodily autonomy, in the privacy sense of making choices about what one does with one’s body. Self-defense, the more traditional interest, is of secondary importance.

Discussions of the “responsibilities” that have customarily accompanied the Second Amendment right also are changing. Instead of denoting adherence to state laws like permitting schemes imposed to ensure lawful firearms carry, gun rights advocates now invoke “responsibility” to refer to the duty to effectuate constitutional doctrine as they claim the founding fathers intended – in short, to deregulate as much as possible. Public safety concerns are superseded by these new urgent calls to arms.

Finally, the “danger” that has traditionally motivated the exercise of Second Amendment rights is also altered. The gun industry and gun rights advocates have often referenced the “danger” of criminal Others to make the Second Amendment more commercially, legally, and culturally salient. PLCAA explicitly names this criminal Other as the spark that could light the powder keg of specious litigation, triggering the gun industry’s demise. “Danger” also undergirds the urgent call to arms that is the consequence of unduly burdening the right to carry; bodily autonomy is ostensibly imperiled if one cannot immediately effectuate the right to carry. This allows gun owners to claim victim status when their right to bear arms is delayed or thwarted by state laws like permitting schemes—a key requirement for constructing a new Second Amendment social movement in which delays or denials of the right to carry become marginalization or discrimination. This reconceptualization, in turn, has consequences for defining those who endanger the Second Amendment and its exercise. The new enemies of the Second Amendment are not criminal Others, or even bad guys with guns, but bureaucrats who enact processes that threaten to delay or deny the right to carry, or doctors that counsel patients regarding firearm safety, or family members who bring wrongful death cases against defendants who then claim lawful self-defense.

In reality, these claims of discrimination and marginalization are specious. PLCAA has helped to reinforce the notion that the Second Amendment and its objects and adherents are under attack. These perspectives are dangerous because they suggest that there can be rights without many (or any) responsibilities, which cripples constitutional jurisprudence and eliminates accountability. Far from being devalued, the exercise of the Second Amendment is now incentivized. Moreover, these new conceptions of the call to arms also introduce an ironic point: the gun rights supporters who so highly prioritize self-sufficiency now claim that they need protection from public safety measures promulgated to safeguard everyone, as well as assistance with shoring up the Second Amendment. These new guardians include the state government, which has so often been labeled a bureaucratic enemy of the Second Amendment. In these new constitutional memories that are now being spun, legislative deregulation of firearms is outpacing the judicial precedent that thus far has upheld most firearm regulations. The courts’ future role in these endeavors is increasingly uncertain.

[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.]




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.]




The Road to The Sandy Hook Settlement

Over a recent five week period, $430 million was awarded to victims of gun violence in court cases:  a federal judge in Texas ordered the Air Force to pay $230 million to victims of the Sutherland Springs church shooting; the U.S. Department of Justice agreed to pay $127 million to victims of the Parkland High School shooting; and insurers for gun manufacturer Remington settled a lawsuit brought by victims of the Sandy Hook elementary school shooting for $73 million.  Five months earlier, families of the Charleston Church shooting settled claims with the United States for $88 million, bringing the 6 month total to more than half a billion dollars.  To an industry that has spent decades deriding lawsuits by gun violence victims and survivors as frivolous nothing-burgers, it was a rude awakening.

The message sent by these successful lawsuits is even more resounding when one recognizes that they are not one-offs; they build on a deep and growing body of precedent established over decades in which courts have increasingly recognized that all those who contribute to gun deaths and injury bear some legal responsibility for those harms, and gun companies may have to compensate victims for the damage they cause.

The road to the Sandy Hook settlement began almost 30 years ago.  In July 1993, a gunman killed 8 people and injured 6 more in a law office at 101 California Street in San Francisco. Represented by my organization, Brady, and a team of private lawyers, several families of victims and survivors brought the landmark Merrill v. Navegar lawsuit against the manufacturer of the TEC-9 assault weapon used in the shooting.  We argued that the manufacturer was liable for designing the gun as a weapon of war for maximum killing capacity, and recklessly marketing it to the public. One Navegar advertisement demonstrated how the gun was marketed to attract criminals, even boasting of its “excellent resistance to fingerprints.”

The plaintiffs won an appellate ruling that upheld these claims, the first-ever holding that a gun manufacturer could be liable for a criminal shooting. Though this ruling was later reversed, the Sandy Hook families used similar theories in their assault weapon lawsuit decades later.

In the late 1990s, Los Angeles, San Francisco, and several other California cities sued major gun manufacturers, arguing that the industry’s sales and distribution practices supplied the criminal gun market, and violated California’s unfair business practice law.  While the California cities did not ultimately prevail, the argument that gun industry business practices violate state unfair business practices laws was later used, successfully, in the Sandy Hook case.  And the Supreme Court of Ohio, the Supreme Court of Indiana, and other courts upheld similar claims on other grounds, finding that the gun industry’s distribution practices that fuel the criminal gun market can constitute negligence and a public nuisance.  After the trial of a similar lawsuit brought by the NAACP against the gun industry, federal district judge Jack Weinstein held that the evidence supported the gun manufacturers’ liability for supplying the criminal market and thereby causing a public nuisance, but that the NAACP did not have legal standing.

In the early 2000s, a lawsuit brought by victims of the 2002 D.C. sniper shootings paved new legal ground, winning a trial court decision that both the manufacturer and dealer of the gun used by the shooters could be liable to victims under negligence, public nuisance, and negligent entrustment law.  The case resulted in a $2.5 million dollar settlement, the first time a manufacturer paid for a criminal shooting caused by its sale or marketing of its gun.  In numerous other cases, courts have found gun dealers liable for shootings with guns they negligently sold, and many dealers have agreed to significant settlements.

The landscape for gun litigation changed in 2005 when Congress passed the Protection of Lawful Commerce in Arms Act (“PLCAA”), unjustly giving gun companies some special protection from legal principles that govern every other industry.  The law has been held to deny victims their day in court in some otherwise-viable cases, and makes it more difficult to hold gun companies accountable for their contribution to gun violence.  But courts have confirmed that ‘more difficult’ does not mean impossible.  Although some courts construed PLCAA’s protections broadly, especially shortly after its enactment, many of those courts were reversed. Today, a large body of precedent holds that PLCAA’s protections are narrow.

In 2007, the Indiana Court of Appeals held that a lawsuit brought by Gary, Indiana against the gun industry was not barred by PLCAA.  The court held that the manufacturers’ sale and distribution of guns could constitute violations of federal and state gun laws, state public nuisance law, and a state law barring false and misleading advertising.  The court held that the City’s case was therefore permitted under PLCAA’s “predicate exception,” which allows actions against gun companies in which they knowingly violate a law applicable to the sales and marketing of guns.  That decision was reaffirmed by the Court of Appeals in 2019.

In 2012, a New York appeals court in Williams v. Beemiller, also recognized that a gun manufacturer’s violation of law exempted it from PLCAA’s protection under the predicate exception.  Numerous other trial courts held that PLCAA does not bar gun dealers from being held liable for criminal shootings where they negligently entrust guns, or violate laws criminalizing knowing straw sales.  And another case brought by Brady, Guzman v. Kahr Arms, resulted in a settlement with the manufacturer of a gun that was stolen and then used in a homicide, the first post-PLCAA case in which a manufacturer paid a victim of a criminal shooting.

These decisions set the legal groundwork for the Connecticut Supreme Court’s 2019 decision allowing the Sandy Hook lawsuit to proceed, and ultimately to the settlement.  Sandy Hook applied a Merrill-like marketing theory against the assault weapon manufacturer; alleged a California cities-like argument that those practices violated a state unfair business practices law; and used the legal argument – established in Gary and Williams – that the claims came within PLCAA’s predicate exception and were not preempted. 

Building on this history, the Sandy Hook plaintiffs skillfully marshaled a compelling case that Remington recklessly and unlawfully marketed its assault weapon to appeal to potential mass shooters, including the now-infamous “Consider your man card reissued” ad.  The message sent to the gun industry by the ultimate $73 million dollar settlement is even more imposing when one recognizes it stands on a firm foundation of precedent from across the country.

Further, in many other cases victims and survivors have obtained significant settlements and verdicts against negligent gun companies.  In cases brought by Brady alone, over $60 million has been won in settlements and verdicts, and in most of those cases recovery would have been higher if not for relatively low insurance policy limits.  And in one of the rare gun lawsuits that went to trial – a lawsuit brought by Brady and tried by Milwaukee trial lawyer Pat Dunphy – the jury awarded $5.7 million against the gun dealer, including punitive damages.

While the more than $400 million dollars awarded to victims of the Sutherland Springs, Charleston, and Parkland shootings were against the government, not the gun industry, they too should be concerning for negligent gun companies.  For one, they show a growing recognition that the law can – and should – attribute legal responsibility to all parties who contribute to shootings.  When I began litigating cases on behalf of victims of gun violence 25 years ago, many judges could not get their head around the idea that entities other than the person who pulled the trigger could be at fault for a shooting.  These decisions reflect that now courts are comfortable recognizing that, as a matter of fact and of law, there can be multiple causes of a shooting, and all can bear significant legal responsibility, even if they are removed from the trigger puller. 

The size of these monetary awards also show that the damages suffered by victims of gun violence is vast, and when gun companies have assets or insurance to pay, they too can expect massive liability.  Over 100,000 people are shot in America each year; the Charleston families each received $5 million to $7.5 million.  Do the math.

The gun industry faces that potential liability today.  Brady currently is litigating impactful gun industry cases, including against assault weapon and high-capacity magazine manufacturers for victims of mass shootings at Chabod of Poway Synagogue, the Gilroy Garlic festival, a Dayton, Ohio commercial district, and many other cases against ghost gun sellers, gun websites, and more.  Other pending cases seek to hold gun dealers liable for shootings using guns sold in straw sales, and to hold the gun industry accountable for using and profiting off such sales.  More and more trial lawyers and public interest organizations are bringing impactful lawsuits as well.  The water is warm, and everyone is jumping in.

The courage of the Sandy Hook families, and the work of their lawyers, was extraordinary, but it was not a “one-off” aberration resulting from the horror of that tragedy. It was the latest in a growing body of decisions and settlements in which gun companies have been held responsible for their role in contributing to gun violence. And it was made possible by decades of litigation against the gun industry.  While the gun industry’s unjust special protections do prevent full accountability, the message from these gun industry cases is clear: in many cases irresponsible gun companies can still be held accountable when they place profits over people.  And with increased legal accountability, lives will be saved, and America will become a safer place.

[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.]




Litigation Highlight: Smith & Wesson v. Attorney General of New Jersey

Last Thursday, the Third Circuit partially vindicated Smith & Wesson in its ongoing battle with the New Jersey Attorney General. In Smith & Wesson v. Attorney General of New Jersey, the panel reversed the district court’s dismissal of Smith & Wesson’s lawsuit against the NJAG, which arises out of the AG’s administrative subpoena for business records as part of the AG’s investigation into potential violations of the New Jersey Consumer Fraud Act. “Instead of producing the documents when due under the subpoena, Smith & Wesson filed a complaint in the District of New Jersey under 42 U.S.C. § 1983, alleging the subpoena violated the First, Second, Fourth, Fifth, and Fourteenth Amendments.” Notably, that complaint made statements asserting an unconstitutional animus against it, a claim similar to the types I explore (with a brief reference to this case) in a recent article, Second Amendment Animus.

In the district court, Smith & Wesson lost. The court dismissed the case because it concluded that abstention was proper under Younger v. Harris, which counsels federal courts to abstain from adjudicating certain claims when a pending state court proceeding is already underway. The Third Circuit panel concluded that the state court proceeding did not fall into any of the categories of cases in which abstention is appropriate. It therefore sent the case back for the district court to consider Smith & Wesson’s constitutional claims.

Much of the opinion is about technical federal courts doctrine. But Judge Matey’s concurring opinion is noteworthy for its focus on the substantive claims at issue in the case. His opinion also seems to hint at the impropriety of applying a broad consumer protection statute to firearms marketing (which readers may recall is the argument that prevailed in removing the Sandy Hook lawsuit against Remington from the immunity bar in the Protection of Lawful Commerce in Arms Act). Even more, Judge Matey quoted from part of the record, suggested that the AG may have been misleading, and then stated: “[t]hat less-than-forthcoming approach to litigation suggests that careful review of New Jersey’s entire investigation is warranted.”

Here’s his concurrence (citations and footnotes omitted):

I write separately to note that those facts present novel questions at the crossroads between the guarantees in the First and Second Amendments. For more than sixty years, New Jersey’s Attorney General enjoyed the powers of the Consumer Fraud Act to protect the public from misleading advertising. New Jersey has also regulated firearms for more than three centuries. Those regulations have, for decades, included firearms-specific advertisement restrictions.

Now, for the first time, the State seeks to apply the Consumer Fraud Act to supplement these specific restrictions, waving aside concerns about the protections of the First and Second Amendment rights of New Jersey residents in, as always, the name of “safety.” It is a well-traveled road in the Garden State, where long-dormant regulatory powers suddenly spring forth to address circumstances that have not changed. Consider where this new highway will take us. Future firearms instructors, fearing the arrival of subpoenas, might decide it is not worth advertising their services for “safety” training. Maybe range operators, sporting clubs, or hunting lodges, recalling some dusty pamphlet mentioning their attention to “safety” will weigh waiting for investigators against early retirement. And almost certainly, every shop-owner stocking firearms for “self-defense” or personal “safety” can begin planning for periodic advertising inspections from the Attorney General. Perhaps publishers will be punished too, with outdoor magazines thinking twice before speaking about the content of a product. One might suspect that is the whole point.

Pointed questions that are all appropriately considered by the District Court on remand. New Jersey is free to experiment with the enforcement of its laws. But the liberties reserved to the states by the Tenth Amendment do not negate the privileges reserved to the people, including “the widely accepted principle at the Founding that the right to self-defense derived directly from the natural right to life, giving the people predictable protections for securing the ‘Blessings of Liberty.’ ” See Ass’n of New Jersey Rifle & Pistol Clubs Inc., 974 F.3d at 258 (Matey, J., dissenting) (citing U.S. Const. pmbl.; see also Declaration of Independence para. 2 (U.S. 1776)).




Stronger than PLCAA: Civil Immunity for Unlawful Conduct

The 2005 Protection of Lawful Commerce in Arms Act (PLCAA) is in the news lately, due in large part to the recent settlement between the now-bankrupt Remington Arms and the families of the Sandy Hook victims. I recently wrote about how I see that case as a turning point in gun litigation, with more potential claimants able to find ways out from under PLCAA’s traditionally heavy burden. PLCAA has stopped many lawsuits against gun industry actors, but as the Sandy Hook case demonstrated, it does allow lawsuits to continue when plaintiffs allege that a gun maker or seller has violated a state or federal law applicable to the sale or marketing of firearms. This exception is called the “predicate exception” and it fits with the general goal of PLCAA to permit lawsuits when a gun maker or seller is itself culpable. Surprisingly, some states have firearm immunity statutes that reach even further, immunizing even illegal conduct from lawsuits.

This past December, in Parsons v. Colt’s Mfg. Co., the Nevada Supreme Court ruled that Nevada’s immunity statute does just that. At issue in the case were allegations that the AR15 used in the Las Vegas massacre violated federal and state law because it was designed in such a way as to be readily convertible into a machinegun. A federal district court agreed that these allegations were sufficient—at least at the initial stage of the litigation—to invoke the predicate exception to PLCAA’s immunity bar and allow the case to continue. The defendants, however, raised not just PLCAA but Nevada’s similar immunity statute in defense. Despite finding PLCAA inapplicable, the district court certified a question about the scope of the state statute to the Nevada Supreme Court. The wording of Nevada’s statute is broader than PLCAA. It provides:

  1. No person has a cause of action against the manufacturer or distributor of any firearm or ammunition merely because the firearm or ammunition was capable of causing serious injury, damage or death, was discharged and proximately caused serious injury, damage or death. This subsection is declaratory and not in derogation of the common law.
  2. This section does not affect a cause of action based upon a defect in design or production. The capability of a firearm or ammunition to cause serious injury, damage or death when discharged does not make the product defective in design.

The plaintiffs argued that they were not trying to hold the defendants responsible merely because a firearm is dangerous, but that the specific design of the weapon—because it was so easily convertible to a machinegun—violated state and federal law. The state supreme court held that it made no difference. The law, said the court, “does not limit the gun companies’ immunity to the manufacture and distribution of legal firearms.” Rather, the statute says “any firearm” and “‘any’ conventionally means ‘all’ or ‘every.’” As a result, Nevada’s immunity statute “does not require that the firearm manufactured or sold be legal for a gun company to seek shelter from civil liability under it.” The court even noted that at the time the statute was enacted, Nevada had already made it illegal to manufacture or sell short-barrel rifles and shotguns and “metal-penetrating bullet[s] capable of being fired from a handgun.” The legislature thus knew that there were certain firearms and ammunition it prohibited, and yet still chose to provide immunity for “any firearm or ammunition.” Finally, the court “urge[d] the Legislature to act if it did not mean to provide immunity in situations like this one,” but considered its hands tied by the language of the statute.

Nevada is not the only state with such an expensive immunity regime. Indeed, the Nevada Supreme Court found solace in a decision by Indiana’s Supreme Court that reached a similar conclusion. In that 2017 case, KS&E Sports v. Runnels, the court read Indiana’s immunity statute to prevent lawsuits based on allegations of illegal conduct:

By its terms, the statute bars actions against firearms sellers for “recovery of damages resulting from the criminal or unlawful misuse of a firearm . . . by a third party.” I.C. § 34-12-3-3(2) (2008 Repl.). On its face, this provision forecloses damages claims when a third party’s misuse of a firearm injures the plaintiff. Nothing in the statute limits its application to situations where a third party obtained the firearm, directly or indirectly, from a lawful sale.

Some commentators hail PLCAA as a necessary protection for a gun industry under siege by meritless lawsuits that seek to hold gun companies accountable for the illegal actions of third parties. Others point out that gun makers enjoy a type and degree of protection from lawsuits that almost no other industry receives. That debate will continue. But whatever one’s view of PLCAA, it seems incredibly hard to justify the Nevada and Indiana statutes providing immunity to companies even in situations where they knowingly and brazenly violate the law.




Privatizing the Gun Debate – Conference at Duke Law on March 18th

We are very excited to announce that the Center will be hosting a conference at Duke Law School on Friday, March 18th on the theme Privatizing the Gun Debate. The conference will explore the ways in which private actors are increasingly taking on a major role in the gun debate. These actors participate not just through public protests, advocacy, and lobbying, but also through more formal mechanisms like civil litigation and business policies.

The conference will convene scholars and practitioners for a series of panels to discuss several themes in the movement to regulate guns outside legislative channels. One theme will focus on civil lawsuits and tort law as a regulatory mechanism. Cases arise against gun manufacturers in mass shooting cases, like those stemming from the Sandy Hook and Sutherland Springs shootings, but also take place in other contexts. For example cities like Gary, Indiana have sued for harms caused by urban gun violence. Citizens have sued municipalities for failing to act to redress gun violence, such as the Powell v. Illinois lawsuit in Chicago. Furthermore, some scholars have suggested that businesses may incur civil liability for failing to permit guns on their premises. Related themes might touch on civil lawsuits against companies like Armslist that are blocked the Communications Decency Act or agreements like restrictive covenants that seek to keep guns off certain private property.

We have assembled a terrific group of distinguished panelists, including;

  • New York State Senator Zellnor Myrie
  • Ian Ayres
  • Brannon Denning
  • Heidi Feldman
  • Alla Lefkowitz
  • Jon Lowy
  • Jody Madeira
  • Julia Mahoney
  • Linda Mullenix
  • Lars Noah
  • Dru Stevenson
  • Fred Vars

The keynote address will be delivered by Alejandro Celorio, Legal Adviser to the Ministry of Foreign Affairs of Mexico and is titled, “The Missing Link: Corporate Responsibility in Arms Trafficking.”

We anticipate livestreaming the event through the Zoom webinar format and will update this post with a registration link when it is available.

Below is the schedule for the conference, which runs from 9:00am to 4:15pm on March 18th.

  • 9:10am-10:25am – Panel One: Civil Liability for Gun Misuse
  • 10:30am-11:45am – Panel Two: PLCAA and its Discontents

Keynote address by Alejandro Celorio: 12:30pm – 1:30pm

The Missing Link: Corporate Responsibility in Arms Trafficking

  • 1:40pm-2:55pm – Panel Three: The Second Amendment and Tort Liability
  • 3:00pm-4:15pm – Panel Four: Private Property and Gun Regulation

 




Government Faces Massive Civil Liability for Sutherland Springs Mass Shooting

In a significant ruling on civil liability for gun-related fatalities, a federal trial court this past week ordered the federal government to pay more than $230 million to families and victims of the 2017 Sutherland Springs mass shooting. The survivors and their kin sued under the Federal Tort Claims Act, alleging that the Air Force’s failure to properly report the shooter’s prior domestic violence conviction—which barred him from possessing or purchasing guns under federal law—freed him to purchase the firearm used in the shootings. In a ruling last year following an extensive trial, the court determined that the federal government failed to exercise reasonable care and was 60% at fault for the injuries that resulted. (This case stands in contrast to a suit brought by survivors against the gun shop that sold the shooter the weapon, as the Texas Supreme Court determined recently that the suit against Academy Sports + Outdoor was barred by the Protection of Lawful Commerce in Arms Act.)

In this week’s 185-page decision in Holcombe v. United States, the court resolved disputes over the amount of damages the plaintiffs suffered. The court noted the difficulty of quantifying the injuries in a case like this (footnote omitted):

Ultimately, there is no satisfying way to determine the worth of these families’ pain. However, the Court has looked to other damage awards for wrongful death and personal injury for guidance, particularly other FTCA cases. While this case is unprecedented in kind and scope, these awards have been instructive. Given the number of injured and deceased persons in this tragic shooting, the Court will discuss the amount of these damages awards by each family, per each claimant.

The court then painstakingly, in over a hundred pages of opinion, chronicled the details of the approximately 80 persons who suffered devastating direct and indirect injuries from the shooting. 

This is not the first tort lawsuit against the government for failed processes that resulted in a mass shooting. Victims and their families sued the federal government after the 2015 Charleston shooting, and the Fourth Circuit ruled that their claims under the FTCA could proceed. Last year, the government reached a settlement in the case with $63 million for families of those killed and $25 to survivors.




Gun Industry Tort Shields and DOJ’s Defense of Congressional Enactments

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA). That law provides fairly robust protection for most gun industry actors (e.g., manufacturers and dealers) when a firearm is used by a third party to cause harm. There’s a fair debate to be had about whether most of the lawsuits that PLCAA displaced were grounded in existing tort principles or were seeking unjustifiable expansions of traditional tort law. But there shouldn’t be any real argument that PLCAA is unique.

Besides a few minor contexts in which Congress has provided similar tort protections—usually paired with some alternative compensation regime (see, e.g., vaccines)—no other major industry benefits from such broad immunity across the board. Auto manufacturers, for example, are left to fend off civil lawsuits—even the frivolous ones—in the courtroom the same way ordinary Americans are. Ever since Congress passed PLCAA, its opponents have argued that the law is unconstitutional because it violates federalism principles enshrined in the Constitution. But no court accepted that argument until last year when a Pennsylvania appeals court did in Gustafson v. Springfield. The case was recently reargued before the en banc appellate court in the state, making the issue even more salient. Because the Department of Justice maintains a strong presumption that it must defend the constitutionality of nearly all congressional enactments, it has stood by PLCAA. This accords with a host of past practice. As Andy Hessick has noted, “Typically, so long as a reasonable argument can be made supporting a statute’s constitutionality, the Department will defend the statute.” In congressional hearings this past week, Democratic members of Congress pushed Attorney General Merrick Garland on this point given Gustafson’s significance and the Biden Administration’s stated opposition to PLCAA. 

Gustafson is a good example of the kind of lawsuit that would be available under traditional tort principles against the manufacturer of other kinds of consumer goods but which PLCAA prevents. Unlike some of the more creative liability theories advanced against gun industry actors, Gustafson sounds in the heart of tort law. The facts are tragic. In 2016, 13-year-old J.R. Gustafson went to his 14-year-old friend’s house, where the older boy showed J.R. a handgun. The older boy removed the handgun’s magazine and thus believed the gun was empty. He was apparently unaware that a bullet remained in the chamber. The boy pointed the gun at J.R., pulled the trigger, and killed him. The case was a terrible accident, but one that could have been prevented. Earlier this year, the NRA’s flagship magazine described a magazine disconnector, or magazine disconnect safety, as a feature that ensures a handgun “cannot be fired if the magazine is even partially withdrawn, as the firing pin is mechanically blocked from striking the primer.” Although it noted that many see the magazine disconnector as “a welcome feature and another layer of mechanical safety,” the article described perceived drawbacks: a person may not fully insert the magazine when stressed, preventing the gun from operating, or may accidentally hit the magazine release when drawing the gun. Those benefits and drawbacks might well be jury questions (or at least questions for a judge) were it not for PLCAA’s bar to bringing most such claims in circumstances like J.R.’s.

The Restatement (Third) of Torts: Products Liability § 2(b) describes a product as defective in design “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller . . . and the omission of the alternative design renders the product not reasonably safe.” (A similar provision covers inadequate warnings.) As comment a to the provision provides:

Some sort of independent assessment of advantages and disadvantages, to which some attach the label “risk-utility balancing,” is necessary [in design defect cases]. Products are not generically defective merely because they are dangerous. Many product-related accident costs can be eliminated only by excessively sacrificing product features that make products useful and desirable. Thus, the various trade-offs need to be considered in determining whether accident costs are more fairly and efficiently borne by accident victims, on the one hand, or, on the other hand, by consumers generally through the mechanism of higher product prices attributable to liability costs imposed by courts on product sellers.

That risk-utility balancing is often missing in gun cases because of PLCAA. To be sure, PLCAA does purport to allow garden variety product defect claims to continue. But there’s a wrinkle. Even for product defect claims, there’s no room to sue “where the discharge of the product was caused by a volitional act that constituted a criminal offense.” In J.R.’s case, the older boy was charged with homicide and eventually pleaded delinquent to involuntary manslaughter in juvenile court. Thus, the courts found that this provision of PLCAA barred the suit for claims of product defect against the gunmaker.

In its now-vacated decision, the Pennsylvania appeals court’s panel declared that PLCAA was unconstitutional because it exceeded Congress’s power under the Commerce Clause and violated the Tenth Amendment, relying at least in part on the Supreme Court’s holding in NFIB v. Sebelius that the Affordable Care Act’s individual mandate exceeded Congress’s Commerce Clause powers. The federal government filed a brief defending the constitutionality of PLCAA at that earlier stage and again when the case went en banc. Although critics have called DOJ’s customary practice into question—and even noted the ways in which the Trump Administration’s Justice Department shifted that traditional model—Attorney General Garland does not seem to be backing down from his view that DOJ ought to vigorously defend PLCAA.

In an October 21 congressional hearing, Congressman Ted Deutch, who represents a district that includes Parkland, Florida, asked Garland about DOJ’s intervention in civil cases when the constitutionality of PLCAA is at issue. Garland noted Biden’s opposition to PLCAA, but stressed: “our obligation in the Justice Department is to defend the constitutionality of statutes that we can reasonably argue are constitutional . . . whether we like the statute or not.” California Congressman Eric Swalwell followed up on this line of questioning, invoking Gustafson and asking whether DOJ would reconsider its view of PLCAA in light of that decision. Garland remained insistent, however: “The Justice Department has taken the position in court that we’re going to defend that statute as constitutional, and I don’t see a ground for changing our mind. I expect that the considerations that the judges in the Pennsylvania state court were brought to the attention of the Solicitor General’s office [sic].”

Assuming the Gustafson case continues through the stages of appellate review, potentially culminating in Supreme Court consideration, questions about DOJ’s defense become all the more significant. And when and if Gustafson influences other courts to consider these same arguments against the statute’s constitutionality more closely, DOJ’s intervention in these cases may raise the same concerns from advocates who decried Garland’s comments in his testimony this past Thursday.




PLCAA’s Constitutionality: Gustafson v. Springfield

Yesterday, the Pennsylvania Superior Court sitting en banc heard oral arguments in Gustafson v. Springfield Inc., et al. This is a rehearing en banc in a case in which the original appellate panel became the first court (at least of which I am aware) to declare the Protection of Lawful Commerce in Arms Act (PLCAA) unconstitutional. The facts of the case are tragic – J.R., a 13-year-old boy, was visiting his 14-year-old friend’s house when the older boy grabbed his dad’s handgun. The 14-year-old proceeded to remove the magazine and believed that by doing so he was removing all the ammunition from the gun. Unfortunately, a bullet remained in the chamber and when the 14-year old pointed the gun at J.R. and pulled the trigger, he killed J.R. Subsequently, J.R.’s parents brought suit against the gun maker, asserting (among other things) common law negligence and products liability claims under Pennsylvania law. In brief, the argument was that Springfield could have and should have designed the gun in such a way that it could not fire when the magazine was removed or had other safety features designed to alert a user that the chamber remained loaded when the magazine was removed.

After the defendants moved to dismiss the case on the basis of PLCAA, the Gustafsons argued that PLCAA is unconstitutional. The trial court rejected the constitutional challenge and held that PLCAA foreclosed the lawsuit. To understand the constitutional challenge, some background on PLCAA is necessary. The Act generally bars civil lawsuits “brought by any person against a manufacturer or seller of a” firearm for any kind of relief “resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” This cuts off a great many gun-related lawsuits. But note that not all gun-related harms fall within the Act. If the harm was caused not by a third party’s criminal or unlawful misuse, the Act doesn’t even come into play—think of a gun exploding in your hand as you fire it at a shooting range. And even if a lawsuit does come within PLCAA’s terms, it expressly allows claims in six circumstances. One exception that PLCAA expressly carves out is for traditional product defect claims. The product defect exception provides that PLCAA does not bar:

an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage.

It’s not entirely clear which exact causes of action the product defect exception meant to bring back into the permissible claims fold. (Recall that the exploding gun would not have come within the scope of the Act in the first place.) One example proffered by Springfield’s counsel during oral argument was a technically unlawful act—say, firing at a shooting range before noon in a jurisdiction which bars shooting before that time—and a resultant exploding gun. In that case, the a lawsuit might technically fall within PLCAA’s general bar, but then be exempted under the product defect carve-out. One might question why, if not for this kind of narrow situation, the general bar refers to actions resulting from “criminal or unlawful misuse” while the product defect exception says claims are still allowed so long as the harm did not result from “a volitional act that constituted a criminal offense.”  

One of the main issues in the case on appeal was whether PLCAA’s provisions violate the Constitution. The Gustafons’ lawyer argued that PLCAA violates the 10th Amendment because it dictates the mechanism by which Pennsylvania regulates its tort law—by allowing for claims to proceed when a plaintiff alleges that the defendant violated a state statute but not when a plaintiff alleges that the defendant violated a common law duty (e.g., committed actionable negligence under state law). Congress cannot, in the words of the Gustafons’ counsel, command that states exercise their powers over tort law through the legislature and not the courts.

Another constitutional objection was that PLCAA was not authorized by Congress’s Commerce Clause powers because it does not regulate pre-existing economic activity. In the words of the challengers, it “targets non-market participants”—those who seek to sue from resulting gun harm, like the parents of the child accidentally killed with a gun in this case. One of the arrows in the quiver of the challengers is none other than NFIB v. Sebelius, in which a majority of the justices held that the Affordable Care Act was not a legitimate exercise of Congress’s Commerce Clause powers.

The challengers also contended that these constitutional concerns should lead to a narrow reading of PLCAA that would avoid them: namely, only those harms caused solely by the criminal misuse of a gun would be excluded, not those harms that are caused by both third party misuse and by gun maker/dealer tortious conduct.

It wasn’t clear to me from the oral arguments which way the judges are leaning, but the fact that the case went en banc suggests that a majority of the active judges want to take a closer look at the question.

 




Scholarship Highlight: New Works on Firearms Law

As we gear up for the Supreme Court’s hearing of New York State Rifle & Pistol Association v. Bruen in November, other firearms law and Second Amendment issues continue to be litigated in lower courts and debated in the literature. Here are new pieces that take on the issue of public carry (just recently posted to SSRN) and the tort shield governing claims against the firearms industry (just recently published).

From the Article (citations, quotations, and alterations omitted):

Since its enactment, the PLCAA has largely removed the gun industry from the salutary effects of the civil justice system, effectively rendering manufacturers of the most inherently dangerous products on the market immune from lawsuits arising out of the negligent misuse of their products. . . . The law contains six express exceptions to this prohibition, one of which permits “action[s] 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.” This exception, known as the sales and marketing predicate exception to the PLCAA, served as the basis for the 2019 lawsuit in Soto v. Bushmaster Firearms International. . . .

The United States is facing a gun epidemic. Nearly 40,000 people in the United States died from gun-related injuries in 2017. On August 3, 2019, Patrick Crusius entered a Walmart in El Paso, Texas and began shooting. Early the next morning, Connor Betts opened fire in an entertainment district in Dayton, Ohio. Combined, the rampages left thirty-one people dead in a span of twenty-four hours. And the cost of gun violence goes beyond the lives lost. In 1994, the medical cost of treating gunshot injuries reached $2.3 billion. By 2019, gun violence was estimated to cost the U.S. $229 billion every year. Immunity legislation, like the PLCAA, forces taxpayers and victims of gun violence to absorb this cost instead of manufacturers and dealers who place inherently dangerous weapons into the stream of commerce. The Act constituted a rejection of 160 years of products liability and flies in the face of concerns over continuing widespread gun violence. Corporations who lobbied for the Act through organizations like the NRA have adopted calculated and profit-driven strategies to expand the market of their weapons and court “high-risk users” through targeted media campaigns and promotional tactics. And while the PLCAA has remained a seemingly impenetrable barrier to lawsuits based in deeply rooted products liability doctrines, Soto may be representative of a growing fracture in the legislation’s armor. By adopting the approach taken by the majority in Soto, state courts may be able to hold gun manufacturers responsible for the harms caused by their products if it can be shown that the manufacturer’s illegal marketing strategies were causally related to the injury. In so doing, Americans may once again have the ability to decide for themselves whether the benefit of the country’s gun industry, as it now stands, is worth its ever-rising cost.

From the Abstract:

Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc), purports to find that the right to bear arms is outside the historical scope of the Second Amendment, which protects that very right to bear arms. The actual text of the Second Amendment is AWOL in the Ninth Circuit’s holding that Hawaii may ban the carrying of firearms, whether openly or concealed. The court’s lengthy account of the history of prohibition on bearing arms is a faux histoire.

Young begins by tracing Hawaii’s ban on carrying a pistol to 1852, when Hawaii was a monarchy. Hawaii’s Constitution recognized no right to bear arms, and instead the law declared that only persons in government were “authorized to bear arms.” When the monarchy was overthrown and a republic created, a law was enacted allowing anyone to carry a pistol by paying a license fee. The court simply ignores that period and highlights restrictions imposed after annexation by the United States. And it disregards how the “good cause” exemption, which allowed carrying without a license, was enforced.

Next Young finds precedent for the carry ban in the decrees of medieval English kings, who prohibited subjects from “going armed.” However, the context concerned knights in armor fighting and creating turmoil, not lowly peasants carrying a bow or dagger for self-defense. At any rate, our Founders would have held in disdain the idea that they needed “the king’s license” to bear arms. The court also misrepresents various English statutes, such as the prohibition on going armed to rob, murder, and kidnap, terms that the court snips out to claim that the law simply banned the carrying of concealed weapons.

The Statute of Northampton of 1328, with its convoluted language on coming armed before the King’s Justices or going or riding armed, is held up by Young as the holy grail to justify carry bans. But the court butchers the definitive holding in Rex v. Sir John Knight (1686), reflected in treaties thereafter, that the Statute only applied if a person went armed with evil intent in a manner to terrorize the subjects. And it underrates the scope of the Declaration of Rights of 1689, protecting the right of Protestants to “have Arms for their Defence.”

Young’s “history” goes further downhill when it crosses the Atlantic. Carry bans in the American colonies were somehow seen as normal because the backwater East New Jersey had a temporary carry restriction and the other colonies required settlers to carry arms to church and other public places. The court skips over the history of the British attempts to disarm the Americans, the demands that the proposed Constitution have a bill of rights, and public discussion leading to the ratification of the Second Amendment.

Instead, the court jumps to antebellum laws that prohibited going armed offensively to the terror of the people, which were irrelevant to the peaceable carrying of arms. It muddies the waters about nineteenth-century judicial decisions, which generally upheld the right to bear arms except for an outlier Texas case from 1871. The antebellum slave codes and judicial decisions upholding them, based on the premise that slaves and even free persons of color had no right to bear arms because they were not citizens, warrants no notice in Young. And it is silent on the purpose of the Fourteenth Amendment to overturn black code provisions requiring African Americans to obtain a carry license that could be issued or denied in the discretion of the government.

The Ninth Circuit in Young paints a faux histoire of the right to bear arms. It relies on medieval decrees that would have been anathema to the Founders, deletes key passage from historical sources, leaps over crucial stages of American history such as the coming of the Revolution and of Reconstruction, and otherwise distorts the past to demonstrate that the right to bear arms is actually beyond the historical scope of the right to bear arms.




Scholarship Highlight – Forthcoming Gun Law Articles

Today, I’m highlighting several forthcoming articles by established scholars and veterans of firearms law scholarship. These pieces raise interesting and often under-explored aspects of the legal regulation of guns.

Abstract:

Workplace violence is surprisingly common – some estimates suggest there are more than one million incidents per year, including several hundred workplace homicides and suicides. Mass shootings and active shooter rampages also occur at places of employment. In spite of the prevalence of workplace gun violence, and partly in response to it, legislatures and some courts have begun to restrict employers’ ability to prohibit firearms at the workplace facility – especially in employee parking lots, but in some cases, within the workplace building itself. Employees have growing legislative protection and even encouragement to bring guns to work, and customers or patrons may also have enhanced rights to bring guns into businesses or offices that they visit, regardless of the wishes of employers, managers, or shift supervisors. This trend coincides with a larger trend of liberalized laws about carrying concealed or openly displayed firearms; in addition, increasing numbers of gun owners are now carrying handguns outside the home. In half the states, obtaining a concealed carry permit exempts the permittee from undergoing any subsequent federal background checks when purchasing a firearm from a dealer, and in most states, private person-to-person sales do not require background checks, meaning employers cannot rely on regulatory controls to screen unstable or discharged employees, or upset patrons, from purchasing firearms. At the same time, unarmed co-workers, supervisors, and business customers or clients often feel threatened, intimidated, or even bullied by the presence of firearms in their immediate work environment, especially in the wake of highly-publicized mass shootings at workplaces, including stores, schools, and office spaces. The presence of firearms can have a chilling effect on employee communication and interactions and can alter the dynamics of relationships within a workplace, such as declining romantic overtures or responding to teasing by an armed co-worker. This paper will explore the recent legislative and judicial developments in this area (forcing employers to permit guns on workplace grounds or within facilities), the new trend for employers to provide active shooter response training or purchase active shooter insurance policies, the policy arguments and trade-offs regarding gun-free workplaces versus employee gun rights, and the need for employers to reduce the risk of violence, and especially lethal violence, in the workplace.

Abstract:

Gun violence has long been an intractable policy problem in the United States, pitting gun rights advocates against public health experts against a backdrop of modern Second Amendment jurisprudence. The Supreme Court’s 2008 decision in Heller had the long-term effect of freezing federal firearm statutes in place, even as the number of guns in circulation continues to spiral upward, and mass shootings, gun accidents, and suicides have a detrimental impact on our communities. This Article reexamines longstanding proposals for minimally intrusive regulatory approaches, such as universal background checks and restrictions on certain military-style rifles, which have the pedigree of popular support in an otherwise divisive area. More importantly, this Article revisits the issue of tort liability for gun manufacturers and dealers, and the new wave of court decisions allowing such cases to move forward in spite of a federal statute designed to grant the firearms industry immunity from such lawsuits. An area of tort litigation that was mostly dormant for fifteen years has now become increasingly active, with far-reaching implications for gun policy, gun industry insurance policies. As courts find workaround for the immunity statute or apply the statutory exceptions more broadly, gun manufacturers and retail distributors alike may need to rethink their product lines, marketing, and relationship to the secondary market.

Abstract:

In 2018, ATF promulgated a regulation that banned bump stocks, a mechanical attachment for semiautomatic rifles that simulates the continuous, rapid-repeat firing of a fully automatic firearm or machinegun. Litigation challenging the rule commenced immediately, and two of the cases have reached the federal circuit courts, though the cases have received little academic attention. A striking feature of the bump stock litigation is that it has not centered around Second Amendment rights, though the rule constitutes a significant regulation of firearms, as hundreds of thousands of bump stocks are (or were) in circulation. Instead, the main cases have focused on important but unsettled issues in administrative law. The bump stock cases will create precedent on the applicability of Chevron deference to agency interpretations of statutory terms, especially for the doctrines of Chevron waiver by the government, whether Chevron should apply to regulations that pose potential criminal sanctions for violators, and the murky distinction between “purely” interpretive rules and legislative rules that are both interpretive and have the force of law. Thus, apart from the rule being the first new federal restriction on firearm ownership in many years, the litigation surrounding the rule could change the trajectory of the Chevron doctrine in federal courts. This Article will provide the first in-depth study and academic analysis of these issues through the lens of the D.C. Circuit’s decision in the bump stock litigation, and will argue that this court, along with the Tenth Circuit on a parallel case, have reached the correct conclusions on the proper parameters of Chevron deference.

Abstract:

The en banc Ninth Circuit on March 24 held that the Second Amendment right does not encompass the open handgun carriage. The decision in Young v. State of Hawaii complements the Circuit’s 2106 en banc Peruta v. San Diego, which held that concealed carry is categorically outside the Second Amendment. Thus, according to the Ninth Circuit, a state may ban both open and concealed carry. There is no right to bear handguns. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.” This Article examines the majority opinion on its own terms. Most revealing about the majority opinion is how it selectively quotes the sources that it cites. When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. Although carrying defensive arms may be regulated, it may not be prohibited.

Abstract:

The history of gun carry laws in Wyoming parallels that of many other Western states, impacted the presence of great changes in national and regional events. From the time that Wyoming first became a territory in 1868, the treaties with the Cheyenne, the Crow, the Sioux, and the Arapahoe peoples distributing lands in Wyoming were in force. The Wind River Reservation was created for the Shoshones. The Homestead Act was recently passed, and the Pony Express, the Oregon Trail, the Overland Trail, the Mormon Trail, and the Bozeman Road crossed the plains and mountains of the territory. The Civil War had just ended and recovery was painful. The U.S. government had granted land to the Union Pacific for the transcontinental railroad, bringing with the project an itinerant population of railroad workers, many of whom were immigrants of minority status. Raids and skirmishes between settlers, migrants, and frustrated Indian Nations were increasing, and federal military outposts were built. The Territory of Wyoming encompassed an expansive geographical area, but the population was sparse. Vast prairies surrounded homes and towns, and the arm of justice was often far away. For the few short years that a portion of Wyoming existed as part of the Dakota Territory, the seat of government in Yankton, Dakota Territory, was 500 miles from Cheyenne, with limited access to the courts.

Parts of Wyoming were lawless and dangerous, at times exceedingly so. At a time when guns were carried openly upon a person for business or for protection, carrying a concealed weapon came to be viewed with distrust. One Wyoming newspaper editor went so far as to infer intent to harm just by the act of arming oneself.

“We take the point that the very act of arming oneself as a result of a quarrel or in anticipation of trouble constitutes malice and premeditation in a strict sense; that in view of the law prohibiting the carrying of concealed weapons, any person who has a grievance against another and arms himself is deserving of no sympathy when, as a result of his misdeeds, he is brought before the bar of justice.”

In the 150 years since the creation of the territorial government, the State’s stance on gun carrying has undergone many adjustments. It shows that peaceable open firearm carriage has almost always been allowed everywhere, and always allowed somewhere, in Wyoming. Concealed carry, on the other hand, has a mixed history. It came to be held in disdain, and highly regulated, in the early part of Wyoming’s history. But it became the accepted and default mode of public carry in recent years. Wyoming today has some of the most liberal gun laws in the country. This essay surveys the development of these laws from positive, public-discourse, and comparative perspectives to the extent possible given the relative paucity of sources on the topic.

Abstract:

Constitutional litigation over the Second Amendment has followed a familiar pattern. In the decade since Heller, countless cases have turned on a foundational question: how much danger does the weapon pose? But in 2020, the courts were suddenly presented with a novel constitutional question: how much danger does obtaining the weapon pose? During the COVID-19 pandemic, state and local governments enacted complete prohibitions on the acquisition of firearms. Willing buyers were ready to comply with all extent gun-control regulations. But these governments shuttered firearm stores completely. These policies were adopted not to stop the sale of guns, but to stop the spread of the novel coronavirus. In short order, these governments deemed the Second Amendment as “non-essential.” The ability to purchase firearms was treated no differently than the ability to purchase other conveniences. Still, the practices in the overwhelming majority of the states reflected what should be a basic tenet of constitutional law: enumerated fundamental constitutional rights must be “essential” rights. And the state cannot impose an absolute and arbitrary prohibition on the exercise of the essential Second Amendment.

This article proceeds in four parts. Part I considers what the word “essential” really means. Part II undertakes a fifty-state survey of restrictions imposed on the right to keep and bear arms during the pandemic. Part III analyzes another metric to decide whether the right to keep and bear arms is essential: the people. During the COVID-19 pandemic, gun sales surged. In times of civil unrest, millions of Americans viewed the acquisition of firearms as essential. Part IV revisits two district court decisions that upheld restrictions on the right to keep and bear arms during the pandemic. These cases followed the framework Chief Justice Roberts established in South Bay Pentecostal Church v. Newsom. These courts should have followed the framework Justice Kavanaugh established Calvary Chapel v. Sisolak. If any businesses are treated as “essential,” firearm stores must presumptively be afforded that same status. The right to keep and bear arms ought to be afforded “most-favored status.” And the state must justify its decision to deprive people of their right to keep and bear arms.




The Biden Administration Gun Plan

On his campaign website, President-Elect Joe Biden lists several of his administration’s priorities for firearm regulation. Since the actual policy proposals are not spelled out in depth, it is hard to evaluate the precise details of his plan. And, of course, the ones that require congressional action are much less likely to pass if the Senate remains in Republican hands. As proposals get introduced and debated after the inauguration, we will be blogging about their legal merits. For now, we’re highlighting those of his proposals that touch on areas we’ve covered on the blog and collecting the posts discussing those topics.

Repeal the Protection of Lawful Commerce in Arms Act (PLCAA)

Ban Assault Weapons (AWs) and Large-Capacity Magazines (LCMs)

Regulate Existing AWs under the National Firearms Act (NFA)

Require Universal Background Checks / Close Other “Loopholes”

Create Firearm Relinquishment Program for Prohibited Possessors

Incentivize State Extreme Risk Laws

Incentivize Smart Guns




Upcoming Conference on Firearms Litigation

On December 1st, the Center on Civil Justice at NYU School of Law is hosting what will be a very fascinating conference: Firearms Litigation: Liability, Regulation, and the Constitution. We are delighted to team up with the Center on Civil Justice and co-cosponsor the event with the Solomon Center for Health Law and Policy at Yale Law School. The conference runs from 1pm to 5pm and is free and open to the public. Register here!

Below is the tentative schedule:

Panel 1: Liability Litigation: Products, Preemption , and the PLCAA

Suits for damages by private parties against gun manufacturers and others raise a number of important legal questions. The Protection of Lawful Commerce in Arms Act (PLCAA), which bars suits against gun manufacturer absent a “predicate exception,” will be centered, and its interpretation raises numerous interesting issues, from intent of the drafters to federalism more broadly. Conflict between the Second Circuit in Beretta and the Connecticut Supreme Court in Soto, which differ on the breadth of the PLCAA’s “predicate exception” and the extent to which a statute a gun manufacturer is accused of violating must directly regulate firearms, will lay a framework for discussion.

Moderator: Abbe Gluck (Yale)
Panelists (in formation): Mark Lanier (Lanier Law Firm), Alla Lefkowitz (Everytown), Timothy Lytton (Georgia State)

Panel 2: Constitutional Litigation

Challenges to federal, state, and local laws and regulations raise Second Amendment issues and Federalism-related policy questions.  We will exam the legal and Constitutional issues presented in litigation over gun rights in the face of regulation and legislation.

Moderator: Adam Skaggs (Giffords)
Panelists (in formation): Joseph Blocher (Duke), Bob Cottrol (GW), Mary Anne Franks (Miami), Deepak Gupta (Gupta Wessler), David Kopel (Independence Institute)

Panel 3: The Future of Litigation Strategies

The ultimate question of the conference is how litigation — both affirmative and defensive — should look.  We will look at strategies invoked by practicing counsel, as well as procedural rules the courts should apply, and statutory policy recommendations that would govern the scope and shape of litigation.

Moderator: Darrell Miller (Duke)
Panelists (in formation): Christopher Boehning (Paul Weiss), Evan Chesler (Cravath), Troy McKenzie (NYU), Erin Murphy (Kirkland), Hannah Shearer (Giffords)




New Decision in a (Very) Old Case: City of Gary v. Smith & Wesson Corp

On November 26, the Indiana Supreme Court denied review in an important case regarding tort liability for gun manufacturers and the Protection for Lawful Commerce in Arms Act (PLCAA): City of Gary v. Smith & Wesson Corp. The latest ruling leaves in place a Court of Appeals decision from last May, which in turn means that the case can finally proceed to trial.  This puts the case in the same procedural status as Remington v. Soto, in which the U.S. Supreme Court denied review two weeks earlier (the Indiana Supreme Court may in fact have been waiting for the SCOTUS decision about Soto before rendering its own ruling).

Finally proceed to trial” is particularly appropriate for this case, which was originally filed in 1999 – the case itself predates the enactment of the PLCAA, the counterpart Indiana immunity statute, and the Supreme Court’s landmark decision in Heller. Like the pending case in Connecticut between the Sandy Hook victims’ families and Remington-Bushmaster, the City of Gary litigation centers around the seemingly narrow statutory exceptions in the PLCAA and seeks to hold firearm manufacturers liable for the injuries involving their products. (A quick overview of the relevant statutes and leading cases in this area is here.)  The City of Gary litigation could eventually be even more significant than Soto for the future of the PLCAA and gunmaker liability.

First, the lawsuit by the City of Gary lists several of the largest gun manufacturers as defendants – besides Smith & Wesson, defendants include Beretta, Browning, Colt’s, Glock, Hi-Point, Phoenix Arms, Sturm Ruger, and Taurus (and originally, other manufacturers and several local gun dealers, though they are no longer parties), while the Sandy Hook lawsuit targets a narrower range of defendants.  This means that a larger representation of the industry is directly involved in the case.

Second, the case is much older than the Connecticut litigation, and has been through several rounds of dismissals and reversals already, meaning the state courts have already addressed a number of the high-stakes legal questions surrounding this type of litigation that have not yet arisen in Soto, including the applicability of a state preemption law, attorneys’ fees, the Second Amendment, and concerns about separation of powers.

Third, the plaintiff in the Indiana litigation is a municipality, seeking redress for the crime problems it suffers as an externality of the firearm manufacture and distribution system.  If successful, the case could potentially have broader applicability than the Connecticut litigation, as most large urban centers across the United States have suffered the same type of harm as the City of Gary, albeit to varying degrees.  Cases like this reach a broader group of defendants for a broader set of injuries than a lawsuit relating to one specific mass shooting.  The State of Indiana has intervened in the suit in opposition to the municipality, which adds an interesting legal twist (city-versus-state) to the case. And at an earlier stage in the litigation, the United States government also temporarily intervened as a party, in support of the PLCAA’s constitutionality.

Fourth, the theories used by the City of Gary to fit under a statutory exception in the PLCAA might be applicable in a wider range of contexts than the specific consumer protection statute implicated in Soto.  Like Soto, the Indiana case includes a claim about the advertising of guns, but it also includes claims about negligent distribution (like earlier New York litigation that successfully circumvented the PLCAA) and negligent design.

The 20-year procedural history of this case is tortuous but thought-provoking (a helpful quick-glance timeline is included here) – the case has been dismissed three times, but then revived in each instance.  In 1999, the City of Gary, which had a notoriously high rate of violent crimes for a midwestern city, joined what was then a wave of other urban centers around the country in suing the major gun manufacturers for public nuisance and other crime-related injuries.  The gun litigation drew inspiration from the litigation between the states and the tobacco industry in the mid-1990s. After the second time the case was reinstated after a dismissal, in 2001, the Indiana state legislature passed a statute granting tort immunity to gunmakers and dealers – a state precursor to the federal PLCAA, which Congress enacted in 2005.  In 2007, after some more procedural twists, the Indiana Court of Appeals found both the PLCAA and the state immunity statute inapplicable to the case.  The litigation essentially went dormant from 2009 to 2015, when the Indiana state legislature amended its own gunmaker immunity statute to apply retroactively to August 26, 1999, four days before the City filed its.  This prompted the manufacturers to file another motion to dismiss, which the trial court granted in 2018, though it denied the manufacturers’ petition for attorneys’ fees.  The City appealed this fourth dismissal, and the Indiana Court of Appeals reversed the dismissal again, in May 2019.  This is the decision that the Indiana Supreme Court declined to take on Nov. 26.  (For more background, an older press release by plaintiff’s counsel is here and their release about the latest decision is here).




Hints from Parker Drilling for the Sandy Hook Litigation?

Earlier this week, the Supreme Court unanimously decided a sleepy statutory interpretation question concerning the Outer Continental Shelf Lands Act. That case, however, may contain clues about how the Court could approach the interpretive question involved in the Sandy Hook litigation over the Protection for Lawful Commerce in Arms Act (PLCAA).

In Parker Drilling the Court had to determine when the Outer Continental Shelf Lands Act commanded use of state laws as federal law; according to the statute, that was only “[t]o the extent that [state laws] are applicable and not inconsistent with” other federal law. The debate turned, in large part, on how to define “applicable.” PLCAA uses similar language to exempt certain state law causes of action from its ban on suits against the firearms industry: those in which a gun manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” The debate over this phrase—the so-called “predicate exception”—has also largely turned on the meaning of the term “applicable.” Specifically, the debate in PLCAA litigation is whether “applicable” means any law that could be applied to the sale or marketing of a gun (such as Connecticut’s general unfair trade practices law) or whether it only includes those laws that by their terms apply to gun sales or gun marketing (such as rules about age restrictions on gun sales or marketing restrictions on gun ads).

So what, if anything, can we glean from Parker Drilling?

There, the Court first noted a circuit split in how to read the relevant phrase. The Fifth Circuit adopted a narrow reading, holding that “state law only applies to the extent it is necessary ‘to fill a significant void or gap’ in federal law.” The Ninth Circuit, on the other hand, “held that state law is ‘applicable’ under the OCSLA whenever it ‘pertains to the subject matter at hand.’”

The Court observed that the question was a close and difficult one that could not be resolved by the words themselves.

In short, the two terms standing alone do not resolve the question before us. Particularly given their indeterminacy in isolation, the terms should be read together and interpreted in light of the entire statute.

But in the end, it sided with the Fifth Circuit’s narrow reading. Given the statutory scheme, the Court concluded that the phrase “applicable and not inconsistent” means that the statute only incorporates state law as federal law when other federal law does not address the relevant issue. “Put another way, to the extent federal law applies to a particular issue, state law is inapplicable.” Because an irrelevant law would never apply, it rejected the Ninth Circuit’s reading as too broad.

As well as the place of the phrase in the “overall statutory scheme,” the Court supported its reading with three additional arguments: (1) a contrary reading would “deprive[] much of the statute of any import,” (2) the Court’s reading accords with the rationale for the statute and  its historical development, and (3) the Court’s precedent supports the adopted interpretation.

These are all types of arguments that might reappear in litigation over PLCAA if the Court thinks the plain text doesn’t resolve the dispute at the threshold. The Court might ask if a broad reading would sap PLCAA of “any import” or which reading comports with the rationale for and history of the law. If the Supreme Court thinks it has jurisdiction over the appeal, and grants the upcoming petition, we may just see another debate about the term “applicable” return to the Court.




PLCAA, Sandy Hook, and Appealability

The Connecticut Supreme Court recently allowed a suit arising from the Sandy Hook shooting to proceed against Remington. In doing so, it rejected Remington’s argument that the Protection for Lawful Commerce in Arms Act (PLCAA) bars the suit. Remington plans to seek U.S. Supreme Court review. But can it seek that review now?

Under PLCAA, gun manufacturers, distributors, and retailers are immune from liability for criminal or unlawful misuse of a gun, with one exception pertinent to this case. Pursuant to the so-called “predicate exception,” gunmakers and sellers can still be liable for violating a state or federal law “applicable to the sale or marketing of the product.” The crux of the Connecticut ruling is that one of the plaintiffs’ narrow legal theories fits within the predicate exception: that Remington marketed and advertised its AR-15 style rifles to be used “to carry out offensive, military style combat missions against [buyers’] perceived enemies.” Because “Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior,” those allegations suffice to bring the claim within the predicate exception.

But the Connecticut Supreme Court’s ruling is interlocutory. Because it held that PLCAA did not bar the suit, the Court reversed the trial court’s dismissal of the case against Remington and remanded for further proceedings. Typically, the U.S. Supreme Court will only review “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had.” As the Supreme Court has explained that rule: “To be reviewable by this Court, a state-court judgment must be final in two senses: it must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court.”

Despite this broad language, the Court has carved out several exceptions to the final-judgment rule. One exception is for those cases in which (1) “the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds,” (2) “reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action,” and (3) “a refusal immediately to review the state court decision might seriously erode federal policy.”

In the upcoming cert petition and opposition, expect the parties to debate the applicability of the exceptions to the final-judgment rule and whether the Connecticut Supreme Court’s opinion would “erode federal policy.”