An Update on The Protection of Lawful Commerce in Arms Act

Written by: Baxter Drennon, Esq.

“[I]f somebody has a gun and it falls into the hands of a murderer, and that murderer kills somebody with the gun, do you hold the gun manufacturer responsible? Not anymore than you would hold a hammer company responsible if somebody beat somebody over the head with a hammer. That is not what a lawsuit should be about.” – Bernie Sanders

In 2005, faced with a number of lawsuits from activists and local governments attempting to bankrupt firearm and ammunition manufacturers, the Protection of Lawful Commerce in Arms Act was passed into law. In short, the Act protects licensed firearm and ammunition manufacturers and dealers from liability when crimes are committed by individuals using their products. 15 U.S.C. §§7901 et seq. There are three significant exceptions to the immunity created under the Act – manufactures and dealers can still be held liable for damages caused by their direct actions, i.e. actions for products liability and breach of warranty, when they have negligently entrusted a firearm when they have reason to believe it will be used in the commission of a crime, or when they have knowingly violated a State or Federal statute applicable the sale and marketing of the project.

Since being enacted, the constitutionality of the Act has been challenged numerous times. In Dist. of Columbia v. Beretta, 940 A.2d 163 (D.C. 2008), the D.C. Circuit Court of Appeals determined that the Act did not violate separation of powers principles or due process principles of the Fifth Amendment. In New York v. Beretta, 524 F.3d 384 (2d 2008), the Second Circuit Court of Appeals found that the Act was a permissible exercise of Congress’ power under the Commerce Clause.

Despite these holdings from the Courts of Appeal, recent signs point towards a potential successful challenge of the Act. For example, in Gustafson v. Springfield, Inc., 2020 PA Super 239 (2020), a three-judge panel of the Pennsylvania Superior Court, found the Act unconstitutional and stated that by enacting the Act “Congress usurped the States’ police powers embodied in the common law and the allocation of lawmaking authority between the branches of the state government.” An en banc rehearing of Gustafson is pending.

Even without a finding that it is unconstitutional, the protections provided by the Act have eroded. In 2021, New York state passed Gen Bus L § 898-B (2021), which permits the state to sue a firearm manufacturer if their business activities create or contribute to a health or safety threat to the public. Specifically, the law prohibits “gun industry member[s]” from knowingly or recklessly creating, maintaining, or contributing to a condition “that endangers the safety or health of the public through the sale, manufacturing, importing or marketing of a qualified product.” Likewise, it requires “gun industry members” who offer products in New York state to establish and utilize procedures to prevent the unlawful possession, use, marking, or selling of their products. Violation of either provision is deemed a public nuisance. In response to the law, a group of gun manufacturers brought a suit challenging the enforceability of the law. They argued that it was preempted by the Act, violated the dormant Commerce Clause, and was impermissibly vague. In National Shooting Sports Foundation v. James, No. 1:21-CV-01348-MAD-CFH, 2022 WL 1659192, a Federal District Judge found in favor of the law and dismissed the suit finding that “Congress clearly intended to allow state statutes which regulate the firearms industry.” As a result, at least while the judge’s ruling is on appeal, manufacturers and dealers in New York will be subject to nuisance suits brought by the New York attorney general. If the judge’s ruling in National Shooting Sports Foundation v. James is upheld, the enactment of similar nuisance statutes is likely in some other states, and the protections of the Act will effectively be rendered moot, at least in those states.