By Theodore Wells, J.D. Candidate 2025, SMU Dedman School of Law
In National Shooting Sports Foundation v. James, fourteen gun industry members and a trade association (“Plaintiffs”) sued New York State Attorney General Letitia James (“Defendant”) regarding the constitutionality of N.Y. Gen. Bus. Law § 898-a-e (“§ 898”), which imposed civil liability on gun industry members. Nat’l Shooting Sports Found., Inc. v. James, 21-CV-1348, Memorandum-Decision and Order, at 3 (N.D.N.Y. filed May 25, 2022) (D’Agostino, J.). Plaintiffs claimed that § 898 was unconstitutional for three reasons: (1) it “is preempted by the . . . Protection of Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. § 5921; (2) it violates the dormant Commerce Clause; and (3) it is void for vagueness.” Nat’l Shooting Sports Found., Inc. v. James, 21-CV-1348, Complaint (N.D.N.Y. filed Dec. 16, 2021). In denying Plaintiffs’ motion for preliminary injunction and granting Defendant’s motion to dismiss for failure to state a claim, Judge D’Agostino considered and rejected each of these three claims. Nat’l Shooting Sports Found., Inc., Memorandum-Decision and Order, at 3.
Enacted on July 6, 2021, § 898 had the purpose of holding “gun industry members civilly liable for ‘public nuisance[s]’” through requiring businesses manufacturing or selling firearm products in New York to “establish and utilize reasonable controls and procedures to prevent” their guns from being illegally, marketed, sold, and possessed in the state. Nat’l Shooting Sports Found., Inc., Memorandum-Decision and Order, at 9. Examples of such controls included adequate screening, security and inventory. Id. Additionally, § 898 gave private individuals (as well as the government) the ability to bring a civil action against a gun industry member for violation of the statute.
Plaintiffs’ First Argument: Preemption by PLCAA
The PLCAA protects firearm manufacturers and dealers by expressly preempting state statutes that confer the right to bring “qualified civil liability action.” 15 U.S.C. § 7902(a). Such action is defined as “a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product . . . resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” 15 U.S.C. § 7903(5).
While the PLCAA protects firearm manufacturers against certain state laws, the PLCAA also includes a “predicate exception.” Nat’l Shooting Sports Found., Inc., Memorandum-Decision and Order, at 3. The predicate exception to the PLCAA allows states to pass a law if it “actually regulates the firearms industry.” City of New York v. Beretta U.S.A. Corp., 524 F. 3d 384, 404 (2d Cir. 2008). Judge D’Agostino explained that the predicate exception reflected congressional intent to leave the states with the ability to further punish knowing violations of federal or state laws pertaining to gun advertisement and sales. Nat’l Shooting Sports Found., Inc., Memorandum-Decision and Order, at 8.
Plaintiffs argued that the predicate exception should not apply to § 898 and that, if the predicate exception does not apply to § 898, then the law would be preempted by the PLCAA and therefore invalidated. Id. at 5. However, Judge D’Agostino disagreed, and held that § 898 does, in fact, fall within the predicate exception of the PLCAA. Id. at 9. Using a functionalist approach, Judge D’Agostino explained that § 898 was the type of firearm industry regulation that Congress “clearly intended to allow” when it created the PLCAA. Id. at 11. Relying on the text of the PLCAA itself and legislative history, Judge D’Agostino ultimately concluded that a “state statute establishing liability for improper sale or marketing of firearms is not an obstacle to any congressional objective of the PLCAA.” Id.
Plaintiffs’ Second Argument: Dormant Commerce Clause
Next, Plaintiffs argued was that § 898 violated the dormant Commerce Clause. While the Commerce Clause provides the federal government the ability to regulate interstate commerce, the dormant Commerce Clause “limits the power of local governments to enact laws affecting interstate commerce.” Town of Southold v. Town of E. Hampton, 477 F.3d 38, 47 (2d Cir. 2007) (citing Hughes v. Oklahoma, 441 U.S. 322, 326 ). In General Motors Corp. v. Tracy, the Supreme Court noted that the dormant Commerce Clause “prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby impedes free private trade in the national marketplace.” 519 U.S. 278, 287 (1997).
Grand River Enters. Six Nations v. Boughton, a recent Second Circuit case, established a three-pronged test to determine the presence of a dormant Commerce Clause violation. 988 F.3d 114, 123 (2d Cir. 2021). A statute violates the clause if (1) it discriminates against interstate commerce and favors intrastate commerce, (2) it unduly burdens interstate commerce while providing a local benefit, or (3) it controls commerce “occurring entirely outside the boundaries of the state in question.” Grand River Enters. Six Nations, 988 F.3d at 123. Here, Plaintiffs argued that § 898 was unconstitutional in all three respects.
To satisfy the first prong of the test, Plaintiffs needed to allege facts plausibly suggesting that § 898 discriminated against interstate commerce and favored intrastate commerce. As a result, they insisted that § 898 applied only to interstate commerce and did not apply to “wholly intrastate gun industry members.” Nat’l Shooting Sports Found., Inc., Memorandum-Decision and Order, at 13. Specifically, Plaintiffs reasoned that the statute must discriminate against out-of-state commerce. Judge D’Agostino was not persuaded by this reasoning and found that Plaintiffs failed to identify any in-state corporation or other entity that benefited from this legislation. Nat’l Shooting Sports Found., Inc., Memorandum-Decision and Order, at 14. Because there were no in-state beneficiaries, Plaintiffs were unable to successfully convince the court that § 898 favored intrastate commerce at the expense of interstate commerce.
To satisfy the second prong of the test, Plaintiffs needed to allege facts plausibly suggesting that § 898 placed “a burden on interstate commerce that is clearly excessive in relation to the putative local benefits.” USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1282 (2d Cir. 1995). Plaintiffs’ momentum was stopped yet again because they had failed to identify any “in-state commercial interests that benefit from § 898.” Nat’l Shooting Sports Found., Inc., Memorandum-Decision and Order, at 16.
Finally, to satisfy the third prong, Plaintiffs needed to allege facts plausibly suggesting that § 898 was an impermissible regulation of out-of-state commerce. The test for this argument is “whether the state law has ‘the practical effect of requiring out-of-state commerce to be conducted at the regulating state’s direction.’” VIZIO, Inc. v. Klee, 886 F.3d 249, 255 (2d Cir. 2018). In practice, this argument rarely prevails, especially when the regulation under scrutiny pertains to safety, which § 898 does. See Kassel v Consol. Freightways Corp. of Delaware, 450 U.S. 662, 670 (1981); SPGG, LLC v. Blumenthal, 505 F.3d 183, 194 (2d Cir. 2007). Judge D’Agostino concluded that § 898 was no more burdensome than any other state safety legislation, and thus was not an impermissible out-of-state commerce regulation.
Plaintiffs’ Third Argument: Void for Vagueness
The final argument that Plaintiffs set forth was that § 898 should be found void for vagueness. Under the Fourteenth Amendment, the void for vagueness doctrine holds that laws should be specific enough for individuals of ordinary intelligence to understand what the law seeks to prohibit. Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007). Additionally, the void for vagueness doctrine requires that laws have enough specificity to prevent arbitrary enforcement. See id.
Although not impossible to support, a facial void for vagueness challenge faces a myriad of obstacles. Dickerson v Napolitano, 604 F.3d 732, 741 (2d Cir. 2010). Judge D’Agostino explained that such challenges are often speculative in nature and put courts uncomfortably close to encroaching upon the powers of other branches. Dickerson, 604 F.3d at 741; Nat’l Shooting Sports Found., Inc., Memorandum-Decision and Order, at 19. A void for vagueness challenge is more likely to succeed regarding a criminal statute because courts have shown a higher tolerance for ambiguity with economic regulations. VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 186 (2d Cir. 2010).
Notably, Judge D’Agostino did not find § 898 to be impermissibly vague. Rather, she highlighted the fact that § 898 includes a mens rea component (requiring “gun industry members to act ‘knowingly or recklessly’”) and does not at all regulate a private individual’s right to bear arms (which negated the Second Amendment argument proffered by Plaintiffs). N.Y. Gen. Bus. Law § 898-b(1); U.S. Const. amend. II.; Nat’l Shooting Sports Found., Inc., Memorandum-Decision and Order, at 22. Judge D’Agostino explained that both the language of the statute and consistent case law support a clear understanding of §898. Id. at 23. Given that the statute was not “permeated . . . with vagueness,” Plaintiffs’ third and final argument failed to win the court’s favor. Id.