WASHINGTON, D.C. — NSSF®, The Firearm Industry Trade Association, is disappointed with the U.S. Court of Appeals for the Second Circuit’s ruling in NSSF v. James, the challenge to a New York State statute that attempts to circumvent the bipartisan Protection of Lawful Commerce in Arms Act (PLCAA). NSSF respectfully disagrees with the Second Circuit’s reasoning that NSSF did not meet its burden in showing that the law is facially invalid because the court could conceive of some potentially legitimate applications of the law. NSSF is exploring all legal options.

“The Second Circuit’s decision is disappointing. We respectfully disagree with the court’s reasoning to uphold New York’s law. We earnestly believe this law is exactly what Congress had in mind when it passed PLCAA with a bipartisan majority. The PLCAA is designed to prohibit frivolous lawsuits against members of the firearm industry, and we continue to believe the New York statute is intended to evade the will of Congress,” said Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “PLCAA is codification of bedrock tort law. It codifies common law and common-sense principles to prevent baseless litigation from bankrupting an entire industry, especially one that provides the necessary means for the lawful exercise of the Second Amendment.”

The Second Circuit ruling held that, on its face, New York’s law falls within PLCAA’s predicate exception and thus is not preempted by federal law, does not exceed the state’s authority to regulate interstate commerce and is not void for vagueness. New York’s public nuisance statute imposes liability for firearm industry members who know or recklessly endanger the safety or health of the public through the sale or marketing of firearms.

As Judge Dennis Jacobs explained in a concurring opinion, New York’s law “is nothing short of an attempt to end-run PLCAA.” The statute was signed by then-Gov. Andrew Cuomo, who used his signing statement to tell the public that the law “would ‘right the wrong’ done by PLCAA.” Judge Jacobs added, “New York has now contrived a broad public nuisance statute that applies solely to ‘gun industry members’ and is enforceable by a mob of public and private actors. The intent of Congress when it closes a door is not for States to thus jimmy a window.”

Nevertheless, Judge Jacobs concluded that he was “constrained to agree with my colleagues that, depending on the pleading, this statute could be applied consistent with PLCAA and the Constitution; and under Circuit precedent, that suffices to defeat Appellants’ facial challenge.” Judge Jacobs also noted that the ruling leaves open as-applied challenges to the law. Indeed, there are several pending lawsuits brought under New York’s law seeking to hold industry members liable for the criminal actions of remote third parties and New York Attorney General Letitia James has intervened in one of those cases.

NSSF argued, and continues to believe, the law is preempted by PLCAA, violates the dormant Commerce Clause, and is so vague as to violate the Due Process Clause of the Fourteenth Amendment.