National Shooting Sports Foundation versus Letitia James by Tom Reynolds
SCOPE has written, often, that anti-gun left wingers know they cannot get the 2nd Amendment repealed so they try end-runs around it.
One common end-run is ‘Law through Litigation.’ For example, if the anti-gun left could financially bury the gun industry in lawsuits and litigation, they could shut it down by bringing lawsuits in Democrat controlled states in front of Left-leaning judges. This could be almost as effective as outright gun ban legislation.
To offset the many frivolous lawsuits brought in pursuit of ‘Law through Litigation,’ the Protection of Lawful Commerce in Arms Act (PLCAA) was passed in 2005 to protect the firearms industry from being destroyed by litigation costs and hostile judgments. It protects firearms manufacturers and dealers from being held liable for misuse of their products in situations over which they have no control. This makes sense since gun manufacturers sell firearms to distributors who then sell to local gun stores. Gun stores, in turn, sell firearms to the general public in accordance with federal and state laws which include a NICS background check. If each step followed the law, why should anyone be liable? For example, if a person in a Ford fires a Colt in a drive-by shooting, should Ford be held responsible? Of course not. So, why should Colt be held responsible?
But under PLCAA the legal gun industry can be held liable for damages resulting from:
defective products,
breach of contract,
criminal misconduct,
other actions for which they are directly responsible.
negligent entrustment if it is found that they had reason to believe that a firearm was intended for use in a crime,
knowingly violating a State or Federal statute applicable to the sale or marketing” of firearms and the “violation was a proximate cause of the harm for which relief is sought.” (This is called the predicate exemption.)
The ‘predicate exemption’ makes the gun industry liable if they violate a state law. Taking broad advantage of that, states like – dare I say it – New York pass state laws in violation of the PLCAA and then cite the ‘predicate exemption’ to sue gun manufacturers for violating that state law*.
Such is the situation in the case of the National Shooting Sports Foundation versus Letitia James (NSSF v. James). It challenges New York’s General Business Law § 898, which attempts to circumvent PLCAA. § 898 would make gun industry members liable for criminals’ misdeeds, on the theory that they “unreasonably” made, sold or marketed a firearm that was later misused in New York. Then NY Governor Andrew Cuomo described § 898 as an attempt to “reinstate the public nuisance liability for gun manufacturers” that Congress prohibited in the PLCAA, in order to “right the wrong” that Cuomo believed Congress committed when it enacted that federal law. [I’m not a lawyer but I am pretty sure that no state can (legally) pass a law to nullify a federal law, when they contradict. I believe there was a civil war fought about that.]
In addition, since almost all guns are transferred through interstate commerce at some point, out-of-state companies are forced to tailor nationwide conduct to satisfy New York’s standards. Thus, the NY law would seem to violate the Commerce Clause. Article 1 Section 8 of the U.S. Constitution gives the power over interstate commerce only to Congress**.
Then, there is the overlooked issue of the firearms industry being important to law enforcement and national defense.*** In passing PLCAA, Congress found national security implications in efforts to bankrupt the industry. The industrial base that provides firearms to citizens also equips police and military forces. (Of course, the same people that want to do away with 2A also want to ‘defund the police’ and they are not wild about our armed forces so they view this as a twofer.)
The interesting problem is that the Ninth Circuit (covering the West Coast - the U.S.’ most far left circuit) and the D.C. Court of Appeals (equally far left) both ruled that similar laws did not qualify under the PLCAA’s “predicate exemption.” However – true to form – the U.S. Court of Appeals for the Second Circuit ruled that New York’s law did qualify under PLCAA. So, the law is currently legal in New York but similar laws are not legal in D.C. and on the ‘Left Coast.’ The case has now been presented to the Supreme Court of the United States (SCOTUS) asking it to review the case. When two or more circuits disagree on an issue, SCOTUS is more inclined to take up the case.
*In a unanimous SCOTUS decision (even Kooky justice Ketanji Brown Jackson agreed) the Supreme Court ruled in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos that PLCAA’s exceptions cannot be read so broadly that they “swallow most of the rule.”
**In a similar attempt to ignore the Interstate Commerce Clause of the U.S. Constitution, proposed NY Assembly bill A00929 wishes to allow the NY Attorney General to prosecute people for legal sales made in other states to New York residents that do not go through the NY bureaucracy. A state cannot criminalize an act done in another state where that act was legal. For example: a dry state cannot punish a legal resident who crossed to a wet state and had a drink there.
***President Trump has spent the past year trying to get things necessary for national security back to being made in the USA. (Oh wait, the people that don’t like 2A and want to defund the police don’t like Trump, either.)
