New York may regulate the reckless marketing of firearms, despite contrary federal statute

In 2021, New York enacted a law that makes the gun industry liable if industry members knowingly or recklessly endanger public health or safety through the sale or marketing of firearms. We call this a gun-related public nuisance law. A gun rights group sued in federal court to strike down this statute on the basis that it conflicts with federal law and violates the dormant Commerce Clause. The Court of Appeals strikes down the case.

The case is National Shooting Sports Foundation, Inc. v. James, issued on July 10. This is an important case, as the state law at issue was enacted in 2021 with great fanfare, and a ton of amicus briefs were filed in this appeal. Gun litigation is the name of the game these days, with a revitalized Second Amendment and gun culture in America, and a gun lobby, that loves its firearms. I am sure the losing side will bring this case to the Supreme Court.

The potential state-federal conflict is that the federal law, the Protection of Lawful Commerce in Arms Act, also regulates the gun industry, and it favors that industry due to the gun lobby's influence over Congress. Under federal law, however, you can sue the gun industry for knowingly violating a state or federal law applicable to the sale and marketing of firearms, and where the violation caused the alleged harm, i.e., a shooting. 

When New York passed the law in 2021, it was intended to be consistent with federal law, the Court of Appeals (Jacobs, Lohier and Lee) says. The gun industry argues that the federal statute was intended to prevent attenuated theories of liability for gun manufacturers and distributors. They argue the state law conflicts with that goal. As this is a facial challenge to the constitutionality of the state law, to win this case, the industry has to show that the state law cannot be legal under any set of facts. This is a difficult burden to satisfy.

The Court of Appeals finds the federal law does not preempt the state law because the federal law does not rule out lawsuits where the manufacturer or seller of firearms violates state or federal law in the sale or marketing of a product, causing injury. This is a statutory construction case, and the Court of Appeals has to carefully review the language in the state and federal laws to see how, if at all, the state law falls within the federal law exception. The Court of Appeals says the state law falls within the federal exception. For now, the state law remains on the books.

We also have a dormant Commerce Clause challenge. This constitutional theory is among the least interesting of all constitutional principles. It says the state cannot unduly burden interstate commerce by impeding private trade in the national marketplace. The Second Circuit finds no such violation, in part because New York advises the court that the statute no longer regulates interstate commerce. This portion of the challenge is therefore moot. The state so advised the Second Circuit in July 2024, eight or nine months after the case was argued. Nor, the Court of Appeals holds, is the statute void for vagueness.

Interesting concurrence from Judge Jacobs, who argues that the state law is "nothing short of an attempt to end-run" federal law which, in turns, aims to prevent industry-destroying lawsuits "by a mob of public and private actors." Statutes like this would "jimmy a window" when Congress tried to close the door on such suits. But, Judge Jacobs says, at this stage of the lawsuit, it not clear that federal law preempts the state law at issue here. He does suggest that, apart from a facial challenge, an as-applied challenge may be in order in the future.