Some of us have been closely following challenges to A1765, New Jersey’s gun industry liability law. In my view, the law is facially invalid and preempted under federal law, and we may now find out after the United States Court of Appeals for the Third Circuit greenlit a challenge from the National Shooting Sports Foundation (NSSF) yesterday. The court found that the NSSF has standing to bring the lawsuit, which could reach the United States Supreme Court.
In 2022, New Jersey enacted A1765 to expose “gun industry members” – gun sellers, manufacturers, distributors, importers, and marketers – to lawsuits as a “public nuisance.” This is a common effort among blue states to circumvent Second Amendment cases that reinforce the right to bear arms.
These laws are designed to achieve indirectly what the Court denied directly to the states: to effectively suppress the availability of guns. Indeed, the law effectively requires manufacturers to self-regulate after the state was prevented from direct regulations, mandating that these companies “shall establish, implement, and enforce reasonable controls regarding its manufacture, sale, distribution, importing, and marketing of gun-related products.” Id. § 2C:58-35(a)(2).
The problem is the Protection of Lawful Commerce in Arms Act (“PLCAA”) which was passed to “prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” 15 U.S.C. § 7901(b)(1).
PLCAA does have exceptions, including negligence per se. Id. § 7903(5)(A)(ii). The predicate exception requires proof that the manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing of the product,” and that “the violation was a proximate cause of the harm for which relief is sought.” Id. § 7903(5)(A)(iii).
However, in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280, 299 (2025), the Supreme Court stressed that this exception applies only to those cases where the “plaintiff makes a plausible allegation that a gun manufacturer participated in a firearms violation as in something that it wished to bring about and sought to make succeed.” Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280, 299 (2025) (citation modified).
In the case, the Government of Mexico sued seven American gun manufacturers, alleging that the companies aided and abetted unlawful gun sales that routed firearms to Mexican drug cartels under the predicate exception. It argued that the companies failed to exercise “reasonable care” to prevent trafficking of their guns into Mexico, and so are responsible for the harms arising there from the weapons’ misuse as “willful accessories.” As some of us predicted, it failed spectacularly in a unanimous decision.
Nuisance is not negligence per se, and gun control advocates have tried to use product liability and nuisance laws to curtail gun sales for years as an alternative to legislative gun bans, which would be struck down. (There are a couple of gun ban cases going before the Court this term).
As previously discussed, public nuisance was originally addressed in England by criminal laws against such offenses as obstructing “the King’s highways.” It evolved into a common-law tort to address a broader range of “interests of the community at large – interests that were recognized as rights of the general public entitled to protection,” in the words of the American Law Institute’s Second Restatement of Torts (1965-79).
Those cases collapsed, and rightly so. In Chicago v. Beretta U.S.A. (2004), the Illinois Supreme Court rejected the claim while acknowledging that “the tragic personal consequences of gun violence are inestimable.” The court found no interference with a legal public right. It held that such theories “would permit nuisance liability to be imposed on an endless list of manufacturers, distributors, and retailers of manufactured products.” The opioid claims are similar. Neither product was defective; both worked – all too well in some cases. The claims were based on third parties’ illegal or harmful use.
The same result appeared in nuisance claims involving lead paint. In State v. Lead Industries Association (2008), the Rhode Island Supreme Court rejected an effort to use nuisance as a substitute for product liability. The court recognized the huge toll from the product while insisting that if it is defective, that should be addressed by product liability: “Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead. But, however grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm.”
Consideration of the merits of the challenge in this case, however, was stymied by that state challenging standing. First filed in February 2025, the lawsuit was dismissed because it was filed before the law was enforced against any industry member companies. The state, under New Jersey’s then-AG Matthew Platkin, sued several industry members, including GLOCK, Inc. NSSF promptly moved to reopen its lawsuit against New Jersey’s gun control law.
The Third Circuit held, “NSSF’s members’ intended actions are arguably precluded by A1765 and affected with constitutional interests. NSSF argues A1765 enforcement actions against its members for otherwise lawful commerce would be an attempt to ‘hold [its members] liable for the acts of third parties who use their legal products to commit heinous crimes.'”
Unless the standing decision is reversed, New Jersey will now face review (and a possible reckoning) over its latest effort to use civil liability as an alternative avenue for gun control.
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