The gun industry has begun firing back at state laws that seek to find a way around the federal immunity gunmakers and sellers have enjoyed since 2005, the Washington Post reports. The National Shooting Sports Foundation, the gun industry’s trade association, is leading the challenge that may ultimately land at the U.S. Supreme Court, arguing that the new laws in New York, New Jersey and Delaware, are unconstitutional because they are too vague, regulate transactions that take place outside of the states and are preempted by the Protection of Lawful Commerce in Arms Act. PLCAA, which has long shielded the gun industry from most liability claims, was itself inspired by an earlier run of lawsuits brought by cities to get reimbursement for the costs of rising gun violence. The laws are a “transparent and obvious attempt to circumvent the will of Congress,” said NSSF senior vice president Lawrence Keane.
Under the new state laws, and borrowing from a successful litigation strategy in Connecticut by the families of victims in the 2012 Newtown school shooting, gun manufacturers, sellers and distributors can be sued for creating a “public nuisance” through improper marketing or sales practices. The states argue that this complies with the PLCAA, which makes exception for violations of laws regulating guns. A New Jersey federal judge sided with the group last month when he blocked the state’s law from being enforced, noting that it “is in direct conflict” with federal law. New Jersey has appealed the ruling. The NSSF has appealed the dismissal of its lawsuit challenging New York's law to the U.S. Court of Appeals for the Second Circuit. Under that law, the city of Buffalo, still reeling from the racist mass shooting there in May 2022, sued several gun manufacturers, including Beretta, Smith & Wesson, Glock, Remington and Bushmaster, arguing they have fueled gun violence in the city, endangered the safety and health of the public and “must be held accountable.” A hearing for NSSF’s district challenge in Delaware will be held Feb. 28. The group also plans to sue California later this year when its version of the law goes into effect. Esther Sanchez-Gomez, litigation director at the Giffords Law Center to Prevent Gun Violence, believes that the NSSF and other gun industry groups could be trying to manufacture circuit splits by filing several lawsuits across the country. “If you’re filing lawsuits across the country, courts are going to come out differently in different places,” she said. This “is a long-game strategy of forcing the Court to take up these issues.”