NY Gun Liability Law May Have Chilling Effect on Firearm Firms

New York’s law allowing the state to sue gun makers and sellers for gun violence may have a potentially chilling effect on the firearms industry, a Second Circuit judge said Friday.

Judge Dennis Jacobs said manufacturers might be hesitant to make parts specifically for guns if they think they also could be held liable for gun-related crimes. Out-of-state gun makers also could get tangled up in a web of regulations if they can’t comply with the manufacturing requirements under New York law, which could have an “inhibiting effect” on commerce.

“So basically companies making innocuous products could be held liable for making parts used in guns,” Jacobs said at oral arguments in Manhattan.

Fifteen members of the gun industry, including the National Shooting Sports Foundation, Smith & Wesson Inc., SIG Sauer Inc., and Glock Inc., argue New York’s law attempts to regulate out-of-state commerce and treat it differently from in-state commerce, essentially favoring manufacturers in New York that make parts used in guns.

‘Healthy’ Industry

Jacobs asked Matthew Rowen, the Clement & Murphy PLLC lawyer representing gun makers, whether he thinks New York State is trying to keep its gun manufacturing industry “healthy,” to which Rowen responded that he thinks New York is favoring in-state firms.

Dennis Fan, senior assistant solicitor general in the New York State attorney general’s office, said New York isn’t treating in-state commerce different from out-of-state commerce. The law, Fan added, doesn’t just apply to gun makers but also to manufacturers of gun components.

Jacobs noted that even the state has admitted there are extremely few if any direct gun manufacturers in New York, so it seems the law would primarily affect manufacturers in other states.

The state law requires gun makers implement “reasonable controls and procedures” to prevent their products from being unlawfully used, marketed, or sold in the state, but it doesn’t make clear what gun makers need to do to comply with the “reasonable controls and procedures” regulations, Rowen argued.

“I don’t know how a manufacturer can know when they’re violating the law, when their own behavior isn’t violating the law,” Rowen said.

Federal Workaround

The state argues that the federal Protection of Lawful Commerce in Arms Act—intended to protect gun makers and dealers from liability when someone uses their products to commit a crime or injure someone—doesn’t preempt New York’s gun law. PLCAA includes what’s known as a “predicate exception” that allows members of the gun industry to be sued if they knowingly violate a state or federal law related to the sale or marketing of firearms and related products.

“PLCAA’s ‘predicate exception’ reflects Congress’s intent to vest the primary authority to regulate the gun industry in federal and state legislatures acting in their representative capacities, rather than federal and state judiciaries acting in their common law capacities,” the state said in its brief.

Rowen said the law is New York’s attempt at “regulation via adjudication,” which is what Congress wanted to prevent.

A federal judge in May 2022 dismissed the gun industry’s lawsuit, saying the state law isn’t preempted by the PLCAA because the state law targets how gun makers market their products.

“Congress authorized lawsuits against gun industry members for ‘knowingly violat[ing] a State or Federal statute applicable to the sale or marketing of the product,’” Northern District of New York Judge Mae D’Agostino wrote.

Clement & Murphy PLLC and Shook, Hardy & Bacon LLP represent the gun industry plaintiffs.

Everytown for Gun Safety Support Fund is an amicus curiae in the case. Michael Bloomberg, the majority owner of Bloomberg Government’s parent company, serves as a member of Everytown’s advisory board.

The case is Nat’l Shooting Sports Found. Inc. v. James, 2d Cir. App., No. 22-01374, oral argument 11/3/23.