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The brewing gun-control fight that could be headed to the Supreme Court

The new state laws are part of a longstanding effort to get around a 2005 federal law that provides liability protection to gun manufacturers

A makeshift memorial near the scene of the shooting at a supermarket on May 19, 2022. (Matt Rourke/AP)
9 min

The 19-year-old White gunman who killed 10 Black people at a grocery store in Buffalo using a modified Bushmaster XM-15 semiautomatic rifle was sentenced Wednesday to life in prison without parole, providing some sense of justice for the community.

But the city — still reeling from the racist attack — wants more.

Buffalo is suing several gun manufacturers, including Beretta, Smith & Wesson, Glock, Remington and Bushmaster, arguing they have fueled gun violence in the city, endangered the safety and health of the public and “must be held accountable.”

“What happened in this community certainly cries out for sensible gun reform,” Buffalo Mayor Byron Brown told reporters following Payton Gendron’s sentencing.

Buffalo’s lawsuit, filed in December, is one of the first cases of its kind under New York’s 2021 public nuisance gun law, which allows the state and people affected by gun violence to sue gun manufacturers, sellers and distributors for endangering the public’s health and safety — or creating a “public nuisance.”

The new statute and similar laws recently enacted in other states mark the latest round in a long-running battle between gun-control advocates and firearm manufacturers over a 2005 federal law that protects the industry from liability.

And this time, the issue could land before the Supreme Court, according to legal experts, as several Democratic-led states take a more aggressive approach to restricting firearms even after the court acted to expand gun rights last year by striking down a decades-old New York law that limited the ability to carry a handgun outside the home.

“For more than a decade, the court turned away basically every Second Amendment petition that it received,” said Joseph Blocher, a Second Amendment law professor at Duke University. But after last year’s ruling, “it could be that we’re going to be looking at multiple gun cases at the Supreme Court.”

A long journey

Gun control advocates have long sought ways to circumvent the Protection of Lawful Commerce in Arms Act (PLCAA), which passed with bipartisan support in 2005 at a time when several cities, including New Orleans, Chicago and Washington, were filing multimillion-dollar lawsuits against the gun industry for creating a “public nuisance,” charging it was flooding their cities with guns.

The cities argued the gun industry shared responsibility for the violence and sought reimbursement for the millions of dollars spent on medical care, police work and other costs.

After aggressive lobbying from the National Rifle Association (NRA), which was worried the lawsuits would bankrupt the industry, Congress passed the PLCAA. It shields manufacturers and sellers of firearms and ammunition from civil lawsuits “resulting from the misuse of their products by others.”

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But lawmakers carved out exceptions that Democratic-led states are now trying to utilize in response to the steady stream of gun violence across the country.

Under new laws in New York, New Jersey and Delaware, gun manufacturers, sellers and distributors can be sued for creating a “public nuisance” through improper marketing or sales practices — a strategy the states argue complies with the PLCAA.

Gun-control advocates hope the new laws will reduce the risk of guns falling into the hands of criminals and force gun manufacturers to more diligently monitor the sales of their firearms.

“They know that if the laws are upheld, they are going to face accountability in a way that they have not since the federal immunity law was passed in 2005,” Eric Tirschwell, executive director of gun-control nonprofit Everytown Law, said of gunmakers.

But these state laws are now the subject of a legal campaign by firearm manufacturers.

The National Shooting Sports Foundation (NSSF), the gun industry’s trade association, is leading the challenge, arguing the new laws are unconstitutional because they are too vague, regulate transactions that take place outside of the states and are preempted by the 2005 law.

The laws are a “transparent and obvious attempt to circumvent the will of Congress,” said NSSF senior vice president Lawrence Keane.

A New Jersey federal judge sided with the group last month when he blocked the state’s law from being enforced, noting that it “is in direct conflict” with federal law. New Jersey has appealed the ruling.

Meanwhile, the NSSF has appealed the dismissal of its New York lawsuit by a district court to the U.S. Court of Appeals for the 2nd Circuit. A hearing for the NSSF’s district challenge in Delaware will be held Feb. 28. The group also plans to sue California later this year when its version of the law goes into effect.

Paving the way to the Supreme Court?

Gun-control advocates and legal experts who focus on the Second Amendment said the NSSF’s multistate approach bears all the hallmarks of how a special interest group can maneuver to give itself the best chance to bring a case before the Supreme Court, particularly one that may be viewed favorably by the majority.

The NSSF said its goal is simply to challenge the new laws in every jurisdiction where they are being implemented.

“It’s really that simple. There’s no grand strategy,” Keane said. “We are simply responding to the threat to our industry that is occasioned by these statutes being passed at the behest of these gun-control groups.”

The NRA, which filed a brief in support of the NSSF’s New York challenge, said the same.

“The NRA challenges regulations that are unconstitutional and that strip law-abiding citizens of their ability to exercise their rights,” spokesman Lars Dalseide said in a statement. “We are willing to take these cases to the Supreme Court, and of course, accept any favorable decision by a lower court.”

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But gun-control advocates are skeptical the industry is not angling for a date with the Supreme Court.

Esther Sanchez-Gomez, litigation director at the Giffords Law Center to Prevent Gun Violence, said the NSSF and other gun industry groups could be trying to manufacture circuit splits by filing lawsuits across the country.

A circuit split is when two or more appeals courts give conflicting rulings about the same legal issue, and it’s one of the traits justices often look for when deciding whether to accept a case.

“If you’re filing lawsuits across the country, courts are going to come out differently in different places,” she said. This “is a long-game strategy of forcing the court to take up these issues.”

Some experts said whether it’s part of a legal strategy or simply how the legal battle is unfolding on its own, the states and lawsuits involved will put the issue on the Supreme Court’s radar.

If “the New York courts say one thing and the California courts say another thing, then it’s likely that the Supreme Court may want to weigh in to clarify what the scope of PLCAA is,” said Timothy D. Lytton, a law professor at Georgia State University.

A lawsuit challenging public nuisance gun laws could reach the Supreme Court in two to four years, said Clark Neily, who served as the co-counsel on the winning side of District of Columbia v. Heller (2008), a landmark Supreme Court case that overturned the city’s ban on handguns and expanded the scope of the Second Amendment to include individual rights.

Some gun-control advocates said they will be closely watching Tuesday when the Court hears arguments in a case — Gonzalez v. Googleconcerning liability protections for technology companies for any clues on how the justices view the broader issue of liability laws for specific industries.

At issue is whether tech companies should be held legally liable for harmful content their algorithms promote. This suit takes aim at Section 230 of the 1996 Communications Decency Act, which protects tech companies from lawsuits over the posts, photos and videos users share on their platforms.

All-star legal lineup

The NSSF has lined up two legal heavyweights with decades of appellate experience in gun rights cases to handle its multistate public nuisance litigation.

The trade association announced in July that it hired Paul Clement and Erin Murphy to manage its appeal to the 2nd Circuit. The pair left Kirkland & Ellis in June over the firm’s decision to stop taking Second Amendment cases after Clement helped secure the victory in last year’s landmark gun rights case — New York State Rifle & Pistol Assoc. v. Bruen — and started their own boutique practice.

Clement is one of the field’s leading Supreme Court litigators, having served as solicitor general during the George W. Bush administration and arguing dozens of cases in private practice. He also has personal and professional ties to some of the justices — he testified before the Senate Judiciary Committee in favor of Brett M. Kavanaugh’s Supreme Court confirmation in 2018. Neil M. Gorsuch called Clement a “dear friend” during his confirmation hearing in 2017.

Former president Donald Trump also named Clement in a list of 20 potential Supreme Court nominees during his 2020 presidential campaign.

The NSSF “could hardly do better than having Paul Clement and Erin Murphy as their legal team,” said Blocher. “They have been involved in some of the most prominent gun litigation over the past few years at the Supreme Court and also at the courts of appeal. So, I have to assume that they’re litigating with an eye toward potential Supreme Court review.”

Clement and Murphy did not respond to requests for comment.

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As the NRA’s stature continues to decline following years of internal division and legal strife, the ascendant NSSF has taken on a more prominent role in lobbying and public policy debates.

But the NRA isn’t sitting the issue out. Former solicitor general Noel Francisco has filed a brief on behalf of the NRA supporting the NSSF’s New York appeal. The Trump-era official is another high-powered lawyer who has argued several times before the Supreme Court and now serves as the head of Jones Day’s Washington office.

Buffalo’s path forward

For now, Buffalo is pressing forward with its suit as its leaders argue that gun restrictions are needed to prevent more shootings and that Gendron’s sentencing cannot be the only repercussion for the slaying that devastated the city.

“I would say that justice was done with a small ‘j’ today. But we still have a big ‘J’ of justice to do,” Erie County District Attorney John J. Flynn said following the sentencing.