Posted July 15, 2025
When New York passed its sweeping “public nuisance” law in 2021 targeting the firearms industry, it was immediately seen by gun-rights advocates as a legal Trojan horse—an end-run around federal protections designed to shield manufacturers and dealers from being blamed for the criminal misuse of guns. There is nothing unusual about this legal principle, as typically, manufacturers are not blamed under the law for third-party criminal acts. Now, more than three years later, the Second Circuit Court of Appeals has weighed in.
The case—National Shooting Sports Foundation, Inc. v. Letitia James, No. 22-1374—challenged the constitutionality of New York General Business Law §§ 898-a–e. That law allows the state (and private parties) to sue gun industry actors who “knowingly or recklessly” create a public nuisance by failing to implement “reasonable controls” in how they market, sell, and distribute firearms.
In a ruling handed down July 10, the Second Circuit rejected the gun industry’s facial challenge to the law, holding that it wasn’t invalid in all circumstances. On the surface, that may sound like a blow to gun manufacturers. But reading deeper, it’s clear this decision is not the sweeping loss some headlines have suggested.
The Fight Over Accountability and Immunity
The lawsuit was brought by the National Shooting Sports Foundation (NSSF) and a slate of leading firearms companies—Smith & Wesson, Glock, Sig Sauer, Beretta, and more. Their argument was threefold:
- The New York law was preempted by the Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 federal statute that shields gun manufacturers and sellers from being sued over the criminal misuse of their products.
- The law violated the Dormant Commerce Clause, by imposing undue burdens on out-of-state businesses.
- It was unconstitutionally vague, failing to provide fair notice of what conduct was prohibited.
The Second Circuit predictably disagreed on all three fronts.
PLCAA and the “Predicate Exception”
At the heart of the case was PLCAA—a law passed by Congress to protect the firearms industry from being held civilly liable for the actions of criminals. But PLCAA has exceptions. One of them, the “predicate exception,” allows lawsuits where a gun company knowingly violates a state statute “applicable to the sale or marketing of firearms” and that violation proximately causes harm.
The court found that New York’s law fit within that exception. Unlike vague nuisance claims that some states have previously tried (and which courts have struck down), New York’s statute directly regulates gun sales and marketing. Because it targets specific conduct tied to the firearms business, the court ruled, it does not run afoul of PLCAA.
Commerce Clause and Vagueness Arguments Fall Short—for Now
The Second Circuit also rejected arguments that the statute violated the Commerce Clause. While the gun industry contended that New York was trying to regulate commerce beyond its borders, the court noted that the law doesn’t treat in-state and out-of-state businesses differently. As long as the statute is applied evenly, New York has the authority to police threats to public safety, it reasoned.
On the vagueness claim, the court said that the phrase “reasonable controls and procedures” was clear enough. It pointed to longstanding legal use of similar language and emphasized that regulated businesses are capable of understanding their obligations under the law.
A Word of Warning from the Concurrence
But even within the majority decision, there was a flicker of doubt—and perhaps a roadmap for future challenges.
Circuit Judge Dennis Jacobs, in a concurring opinion, expressed deep skepticism about the law’s intent and potential overreach. He wrote:
“There is every indication New York intended to contravene federal law, but I am constrained to agree … that this statute could be applied consistent with PLCAA and the Constitution depending on the facts of the case.”
In other words: while the law may not be facially invalid, how New York enforces it could very well cross constitutional lines. That leaves the door wide open for as-applied challenges in future lawsuits.
Why This Isn’t the End for Gun-Rights Defenders
Let’s be clear: this was a facial challenge, meaning the plaintiffs argued the law is invalid in every possible application. That’s a high bar in Constitutional Law. The court said: no, not every application would violate federal law. But that doesn’t mean any specific enforcement action will survive.
Gun makers and dealers can still fight back in individual cases, arguing that:
- They did not knowingly violate any applicable statute,
- Their conduct was lawful and constitutionally protected, and
- New York’s enforcement exceeds its legitimate regulatory authority.
In fact, New York’s law will now have to pass muster under PLCAA’s predicate exception every time it’s invoked. If the state files a lawsuit that lacks a clear statutory violation—or where causation is too remote—it could still be dismissed.
Looking Ahead: A Legal Standoff Continues
This case may be over, but the broader fight is just beginning. Across the country, anti-gun-rights politicians are looking for creative ways to pierce PLCAA’s armor. New York’s law is just the tip of the spear. California and New Jersey have enacted similar laws, and others are watching closely.
But this decision doesn’t give states carte blanche to go after the gun industry. It simply says they can try—under narrow conditions. That means vigilance is still required. Industry actors must document their compliance, challenge overbroad enforcement, and remain ready to assert their constitutional rights in court.
Final Thoughts: A Narrow Loss, a Wider Battle
Gun-rights advocates didn’t get the knockout they wanted in this round. But they also didn’t get knocked out. The court refused to rubber-stamp New York’s approach, and Judge Jacobs’ concurrence is a caution flag that future lawsuits may expose the law’s flaws.
This decision should be seen for what it is: a strategic loss on the facial level, with plenty of room left to fight on the merits.
And that fight is far from over.
Stay tuned as I continue monitoring legal developments threatening the Second Amendment—and the industries that stand behind it.
MA GUN LAWYER 
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