Pistols laid out for sale at a gun show booth in Virginia during July 2023
Pistols laid out for sale at a gun show booth in Virginia during July 2023 / Stephen Gutowski

Analysis: Why New Jersey Might Help the Gun Industry By Suing It [Member Exclusive]

New Jersey Attorney General Matthew Platkin (D.) filed “public nuisance” lawsuits against gun companies for the first time this week. It could be the undoing of the law that allowed him to do so.

On Tuesday, Platkin announced his office was filing separate lawsuits against a New Jersey gun store and a Pennsylvania gun show promoter/unfinished firearms parts kit seller. The first suit alleges that FSS Armory, a New Jersey-based federal firearms licensee (FFL), engaged in “unlawful and reckless practices” because thieves broke into the store and stole 20 firearms from store displays in the middle of the night in January.

The second suit alleges that Eagle Shows and JSD Supply—separate businesses under the same ownership—have “targeted the sale of ghost gun products to New Jersey residents” by holding gun shows in Pennsylvania and offering unserialized firearms parts for sale at those shows.

The suits state that some of the guns stolen in the FSS Armory burglary and firearms purchased from Eagle Shows have been recovered by New Jersey police.

“Today’s action should make New Jersey’s position clear: Gun traffickers and their enablers will be held accountable when their actions place our residents in danger,” Platkin said of his office’s suits. “Gun dealers and the firearms industry must abide by our laws or face the consequences.”

The complaints were made possible thanks to a recently enacted state statute that allows the attorney general to sue gun industry members if he believes they “contribute to a public nuisance” by failing to maintain “reasonable controls” over the sale, manufacture, and marketing of firearms-related products. It was modeled after a 2021 New York law and has since been replicated in at least a half-dozen additional blue states—including Delaware, ColoradoIllinois, Washington, California, and Hawaii—in what has quickly become a new successful push for the gun-control movement.

Despite their popularity among gun-control advocates, the staying power of public nuisance laws like New Jersey’s faces a clear problem. The 2005 Protection of Lawful Commerce in Arms Act (PLCAA) is a federal civil liability shield for the firearms industry. It explicitly precludes lawsuits against gun companies for the criminal misuse of their products by third parties.

The PLCAA’s existence has given the gun industry and its trade association, the National Shooting Sports Foundation (NSSF), a powerful weapon in their legal fight against the spread of the laws. It even helped the group secure an order blocking New Jersey’s version earlier this year.

“A1765 would subject manufacturers, distributors, dealers, and importers of firearms or ammunition products and their trade associations to civil liability for the harm solely caused by the criminal or unlawful misuse of firearm or ammunition products by others,” U.S. District Court Judge Zahid N. Quraishi, a Biden appointee, wrote in his opinion. “This is in direct conflict with the PLCAA’s purpose. Accordingly, the Court finds that NSSF is likely to succeed on the merits that A1765 does not fall within the predicate exception of the PLCAA and is therefore preempted by the PLCAA.”

But the group’s victory against the Garden State proved to be short-lived. A three-judge panel for the Third Circuit Court of Appeals overturned Judge Quraishi’s ruling and dismissed the NSSF’s suit in August. However, the decision was not based on the merits of New Jersey’s law. Instead, the court said the group’s legal challenge was premature.

“The National Shooting Sports Foundation challenges a new state gun law as violating its members’ constitutional rights. But we see little evidence that enforcement is looming,” Judge Stephanos Bibas, a Donald Trump appointee, wrote on behalf of the unanimous panel in NSSF v. Platkin. “Because the Foundation has jumped the gun, its challenge must be dismissed.”

Now that Platkin has officially taken three gun businesses to court under the public nuisance law, issues over standing will no longer be available as a shield to avoid deeper legal scrutiny of its viability under the PLCAA.

NSSF General Counsel Larry Keane previously told The Reload that his group would refile its lawsuit against New Jersey if Platkin ever enforced the law. He said he felt confident in the group’s chances of winning on the merits of the case.

“It is important to note the court did not say New Jersey’s law does not violate the Protection of Lawful Commerce in Arms Act (PLCAA); it clearly does,” he said following the Third Circuit’s dismissal order. “During oral arguments, the panel appeared to have concerns with the law, as did the district court that enjoined enforcement.”

Mark Oliva, a spokesman for the group, told The Reload that NSSF was aware of the new lawsuits filed by the New Jersey attorney general, but it “has not yet” refiled its challenge to the law.

Once it does, it should be on firmer legal ground in its push to have it thrown out.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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