What makes a firearm a public nuisance in the Garden State? We may soon find out, thanks to a ruling by the Third Circuit Court of Appeals in Philadelphia. The New Jersey gun control law, which was passed in July 2022, allows the state’s attorney general to sue firearms manufacturers and sellers as a public nuisance.
Timing Is Everything
The three-judge panel ruled unanimously, dismissing the Connecticut-based National Shooting Sports Foundation’s (NSSF) lawsuit and dissolving an injunction ordered by a lower court. Their logic wasn’t that the novel gun control law was constitutional, but that the plaintiff “jumped the gun.” The law may or may not be bad – the court hasn’t ruled on that, yet – but the lawsuit timing, it seems, was horrible.
The NSSF filed suit just four months after the law took effect and before it had been enforced. US District Judge Zahid Quraishi ruled in January that the law violates the Protection of Lawful Commerce in Arms Act, which protects firearms manufacturers and dealers from civil suits arising from the misuse of their products. The Third Circuit, however, took issue with the timing. “Pre-enforcement challenges are unusual. To bring one, the plaintiff must show that the stakes are high and close at hand. Normally, that means constitutional rights are at issue, those rights are threatened by significant penalties, and those penalties might well be imposed, as shown by past enforcement in similar situations or some other evidence of the threat,” explained Circuit Judge Stephanos Bibas, who wrote the court’s opinion. “With so much still vague and uncertain, a court should not weigh in.”
And so, now that the injunction holding back the law has been dissolved, such “high stakes” may well be “close at hand.”
Gun Control by Lawsuit
The law is indeed vague. What constitutes a public nuisance? As Judge Bibas seems to imply, we’ll find out when and if NJ Attorney General Matthew Platkin – who was thrilled by the ruling – brings a case. What’s not at all vague, however, is the law’s purpose. President Joe Biden and congressional Democrats have been clamoring for exactly this at the federal level: gun control by lawsuit.
Suing firearms manufacturers and sellers after someone else “misuses” their products to commit a crime would certainly work to circumvent the Second Amendment. Stripping Americans of the right to keep and bear arms and confiscating their guns would be unconstitutional. But if the US and various states are allowed to sue the gun industry out of existence, then Americans can be both legally allowed to have guns and practically incapable of buying them at the same time – a win-win for “public safety” and the Constitution, as far as the gun grabbers are concerned.
President Biden, in particular, has long lamented the gun industry’s “immunity” from legal liability for their products. But don’t buy the hype; manufacturers can still be sued if something happens that’s actually their fault. In other words, if a weapon fires without anyone touching the trigger, a manufacturing defect may be to blame (assuming it hasn’t been “modified” or broken by the user). But if someone legally purchases a perfectly functional firearm and chooses to commit a crime with it, they’re to blame, not the gun industry. Glock wouldn’t be any more responsible for that shooting than Snap-On would be if an enraged mechanic attacked someone with a wrench. The Protection of Lawful Commerce in Arms Act prevents this – and nothing more. It doesn’t grant the gun industry some blanket immunity like Big Pharma enjoys; it just guards against frivolous lawsuits based on other people’s choices.
Back in the Saddle Again
(Photo by Tayfun Coskun/Anadolu Agency via Getty Images)
The New Jersey law allowing such suits was passed in July 2022. Now that the Third Circuit has ruled, AG Platkin says he’s “thrilled” to once again be allowed to “take on bad actors in the firearms industry.”
“We are extremely gratified that the Third Circuit recognized what we have always said: New Jersey is likely to win this case because our sensitive-places law complies with the Second Amendment,” Platkin said in a statement. “This is a tremendous win for public safety, and we will continue fighting for our law.”
And fight he must, according to NSSF General Counsel Lawrence Keane. “While we respectfully disagree with the court’s decision on our pre-enforcement challenge, 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; it clearly does,” Keane said. If the Garden State AG’s excitement is any indication, that law will be enforced sooner rather than later – and the National Shooting Sports Foundation is ready.
