Two decades after a Republican-controlled Congress gave gun manufacturers immunity from being sued over crimes committed with their firearms, blue state Democrats upset about gun violence think they’ve found a way to penetrate that legal shield.
Since 2021, 10 states have passed laws intended to make it easier to sue gunmakers and sellers.
The newest such law, in Connecticut, took effect this month. It opens firearms manufacturers and retailers up to lawsuits if they don’t take steps to prevent guns from getting into the hands of people banned from owning them, or who should be suspected of intending to use them to hurt themselves or others. Other states have allowed lawsuits against companies deemed to have created a “public nuisance” through the sale or marketing of firearms.
The legislation — and flurry of lawsuits against gun companies that followed — has outraged gun rights advocates, who accuse the states of trying to skirt the 2005 Protection of Lawful Commerce in Arms Act.
That law, which blocked a wave of similar lawsuits two decades ago, says gun companies operating legally cannot be held liable for violent acts committed by people misusing weapons.
“They know these laws are unconstitutional. They know these laws violate the PLCAA,” said Lawrence G. Keane, senior vice president for government and public affairs at the National Shooting Sports Foundation. “They don’t care,” he said, adding that the real goal of the lawsuits was to harass the industry and drain it financially.
Gun control groups say the states have simply set clearer requirements for gun companies to ensure their products aren’t sold or used illegally.
“These laws don’t just open the courthouse doors to survivors. They also force the gun industry to operate more responsibly and, most importantly, can help prevent future tragedies,” said Po Murray, chair of the Newtown Action Alliance, a gun-violence prevention group founded after the 2012 Sandy Hook Elementary School shooting.
Two decades of federal immunity
Congress adopted protections for the gun industry after lawsuits filed in Chicago, New York, Los Angeles, and elsewhere attempted to hold the firearms industry responsible for violent crime.
Many of those suits argued that gun companies had knowingly oversupplied certain markets with cheap handguns and ignored signs that those weapons were being trafficked to places with strict gun controls.
The firearms industry and the National Rifle Association saw the lawsuits as unfair. As long as gun companies weren’t breaking rules around sales, they shouldn’t be held responsible for violence, they said.
President George W. Bush, a Republican, agreed and signed the shield law in 2005, saying it helped stem “frivolous lawsuits.”
“Our laws should punish criminals who use guns to commit crimes, not law-abiding manufacturers of lawful products,” Bush said at the time.
A new approach
The legal protections Congress gave the gun industry aren’t absolute.
For example, a gunmaker that sells a faulty firearm can still be sued over dangerous defects. Another exception allows lawsuits against companies that knowingly violate laws regulating how firearms are sold and marketed.
When Congress drafted that exception, it cited the example of a shop that knowingly sold a gun to someone banned from owning one, such as a convicted felon.
The new state laws have sought to expand potential liability for gun companies by creating new rules for the industry. New York passed a law in 2021 requiring gun companies to create controls to prevent unlawful possession or use of their products. It also says they cannot knowingly or recklessly “contribute to a condition” that endangers public safety.
“Any business operating in New York must adhere to our laws — and if they don’t, they are held accountable,” said Democratic state Sen. Zellnor Myrie, the law’s chief proponent.
Several states and cities have used the new liability laws to sue Glock over the design of its pistols, saying it is too easy to convert them into automatic weapons.
Many of the new laws follow legal theories from a lawsuit filed against gunmaker Remington by families of Sandy Hook victims. The suit, which was settled for $73 million in 2022, argued that Remington’s marketing violated state consumer protection law.
What’s next?
It’s too soon to say if courts will uphold the new state laws.
A panel of the 2nd U.S. Circuit Court of Appeals ruled in July that New York’s law wasn’t expressly barred by the Protection of Lawful Commerce in Arms Act, but that decision is not expected to be the last word. One of the judges, Dennis Jacobs, made it clear he believes the law is vulnerable to future legal challenges, calling it “nothing short of an attempt to end-run PLCAA.”
The U.S. Supreme Court, which is controlled 6-3 by Republican-nominated justices, hasn’t yet considered the state liability laws, but the gun industry was encouraged when the justices unanimously agreed in June to toss out a $10 billion lawsuit Mexico filed against top firearms manufacturers claiming their business practices fuel cartel violence.
Justice Elena Kagan, a Democratic nominee, wrote in her opinion how Congress passed PLCAA to halt lawsuits similar to the one filed by Mexico. She said Mexico had made no plausible argument that the companies knowingly helped gun trafficking.
“The Court doubts Congress intended to draft such a capacious way out of PLCAA, and in fact it did not,” she wrote.
—Susan Haigh, Associated Press
Associated Press Writer Dave Collins contributed to this report.