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Smells Like Infringement

NY Blames Everyone But the Criminal, Part Eleventy

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The Rock knows what NY’s been cooking, and he’s not a fan.

Hmm, what’s that smell? Why, it’s infringement!

Some time ago, the state of New York had a list of potential ways to cut down on crimes committed using firearms. Out of the obvious possibilities (holding the criminal responsible with serious prison time for those crimes is one that comes to mind), New York went with a statute that would hold gun manufacturers liable to lawsuits. It’s absurd on its face–it’s like suing Ford because some crazed spree killer decided to drive into a parade. But it gets worse…there’s no provision about the complainant’s legal status. That means it’s possible for a criminal who was shot by a homeowner to sue Smith & Wesson for his injuries. Furthermore, New York’s law is already pre-emptively negated by Federal law. What’s that smell? It’s infringement! The good news is that the National Shooting Sports Foundation is about to hold New York responsible in court. Here’s the latest news from our friends at the NSSF:

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The National Shooting Sports Foundation and a group of fourteen firearm manufacturers, distributors, and retailers filed a lawsuit and moved for a preliminary injunction in federal court today challenging as unconstitutional a New York law designed to blame the industry for the criminal misuse or unlawful possession of firearms in New York no matter where they were purchased.

Specifically, New York’s “public nuisance” law would subject members of the firearm industry to civil lawsuits for the criminal misuse or unlawful possession of firearms in New York. The law would impose liability on industry members for firearms lawfully sold anywhere in the United States that end up being criminally misused or illegally possessed in New York thereby allegedly contributing to a “public nuisance” in the state. Today’s lawsuit challenges the New York law as preempted by the federal Protection of Lawful Commerce in Arms Act (PLCAA). It also challenges the law as unconstitutionally vague in violation of the Due Process Clause of the United States Constitution. The lawsuit further challenges the law as an impermissible attempt by New York State to regulate interstate commerce in violation of the Commerce Clause of the Constitution.

New York is trying to use the threat of crushing liability to coerce out-of-state businesses to adopt sales practices and procedures not required by Congress or the law of the state where they operate. The Constitution reserves the power to regulate interstate commerce solely to Congress. This law interferes with the sovereignty of other states to make policy choices about how firearms should be sold in their state, subject only to the Second Amendment and federal law.

The challenged law permits lawsuits by victims of criminal acts and citizens claiming they have been harmed by an alleged public nuisance in New York. It also allows lawsuits by the State and any local government, like the City of New York. Both New York State and the City of New York were part of a wave of similar lawsuits filed over twenty years ago that led to Congress passing the bipartisan PLCAA in 2005.

The PLCAA codified a bedrock legal principle. Manufacturers and retailers are not responsible for the subsequent criminal misuse or illegal possession of their lawfully sold, non-defective products by remote third parties – criminals – over whom they have no control. Firearm industry members are not legally responsible for illegal shootings any more than a cookware manufacturer is responsible if a criminal misuses a sharp kitchen knife to stab someone.

“This law is not about making our communities safer but rather, as former Governor Andrew Cuomo once proclaimed, to impose on the firearm industry a ‘death by a thousand cuts.’ Today’s lawsuit will end this unconstitutional attack on the businesses, large and small, vital to Americans’ Second Amendment rights,” said Lawrence G. Keane, NSSF Senior Vice President for Government and Public Affairs and General Counsel. “Opening up members of the firearm industry to a torrent of baseless civil lawsuits is – as it was in the past – an effort to impose radical gun control policies by litigating the forceful bankruptcy of companies. New York’s baseless law ignores the fact that members of the firearm industry work cooperatively with federal, state, and local authorities for Real Solutions® to help address crimes involving guns.”

Legal experts such as Professor Jonathan Turley have long defended the merits of the PLCAA  pointing out that laws like the one recently passed in New York are “unsound attempts” to distort principles of liability.  New York’s law allows the very type of novel tort law actions, including those by New York State and City of New York, struck down by courts two decades ago.

NSSF looks forward to working with the individual plaintiffs and other members of the firearm industry to fight this blatantly unconstitutional New York law and in doing so, uphold the foundations of tort law, fight government overreach, and protect the firearm businesses that lawfully operate and employ over 340,000 of Americans.

For more information on the PLCAA, see NSSF’s Fact Sheet.

6 Comments

6 Comments

  1. John Donson

    December 29, 2021 at 7:15 pm

    At this rate, firearms manufacturers should just halt all sales completely in New York, including their police department. Then they’ll see just how bad things can really get. Reap what you sow.

  2. RIP

    December 29, 2021 at 10:26 am

    Until someone or some group of people, who have suffered the loss of loved ones due to NY’s idiotic laws, bring(s) personal lawsuits against the political leaders, that will hold them personally accountable (such as accessory to murder) or at least take most of their illgoten wealth, this stupidity will continue.

  3. Hunt N.Y.

    December 24, 2021 at 12:01 pm

    I don’t think most people realize that New York State is unfortunately out voted by the dense population of our cities. If you were to look at a political map most of the state is Republican, except for our liberal,democrat,sanctuary cities. Oddly enough that is where all the Crime is.( Hmm…Go figure) The rest of state is farms and woodlands and small towns where we hunt and fish.( About 70% or better) I understand that our politicians are criminals all to well, but punishing N.Y. State as a whole will only hurt the honest,hardworking Americans that reside within. The other side will not care at all. As a matter of fact that would help the criminal liberal democrats achieve their goals at an accelerated pace. Most of us hunt to put meat on the table. Without access to hunting rounds, for some,this might not be possible. Something to think about!
    Our ridiculous laws need to be challenged and changed, but beware of who your really punishing and who your helping.

    Americans, Be American!

  4. Richard

    December 24, 2021 at 10:27 am

    The rest of the shooting sports industry needs to do what Hornady did. Stop selling fire arms and ammunition to the state of New York. Companies have the right to refuse service to anyone. Plus New York government is suffering from mental defect or disease.

  5. Mike S

    December 23, 2021 at 7:31 pm

    UNCONSTITUTIONAL!!!!! It’s not worth the paper it’s written on.

  6. Ed

    December 23, 2021 at 12:01 pm

    If the state of NY keeps on the same path they are heading, it should be banned from any federal money. They insist on acting like they are another country, they can support themselves.

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