On May 25, 2022, the U.S. District Court for the Northern District of New York dismissed a challenge by the National Shooting Sports Foundation, Inc., and fourteen gun industry members against New York Attorney General Letitia James, upholding the constitutionality of N.Y. Gen. Bus. Law §§ 898-a to -e (§ 898). Enacted in July 2021, § 898 holds gun industry members civilly liable for creating a “public nuisance” by knowingly or recklessly endangering public safety through firearm sales, manufacturing, importing, or marketing, and mandates “reasonable controls” to prevent unlawful firearm use in New York. The plaintiffs, including prominent manufacturers like Smith & Wesson and Beretta, argued that § 898 is preempted by the federal Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. § 7901 et seq. The district court rejected this claim, but a recent Supreme Court decision, Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos (605 U.S. __, 2025), significantly strengthens the plaintiffs’ preemption argument on appeal to the Second Circuit (Case No. 22-1374), where the district court’s ruling is stayed. However, the Second Circuit’s historically restrictive approach to Second Amendment cases, compared to other circuits, may complicate the outcome. This article examines the preemption dispute, the impact of Smith & Wesson, and the procedural next steps in NSSF v. James.
The plaintiffs contended that § 898 is preempted by PLCAA, which bars civil actions against gun manufacturers for harms caused by third-party firearm misuse, except under a “predicate exception” for knowing violations of state or federal statutes “applicable to” firearm sales or marketing (15 U.S.C. § 7903(5)(A)(iii)). They argued that § 898’s public nuisance liability, targeting downstream harms from firearm misuse, conflicts with PLCAA’s intent to shield manufacturers from such suits.
The district court, relying on City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008), dismissed the preemption claim. In Beretta, the Second Circuit held that New York’s general public nuisance statute (N.Y. Penal Law § 240.45) did not qualify as a predicate statute because it lacked specific firearm regulation. However, the district court found § 898 distinct, as it expressly targets gun industry members for actions like failing to prevent sales to straw purchasers or traffickers (§ 898-a(1)). Citing Beretta’s definition of “applicable to” as including statutes that “expressly regulate firearms” or have been judicially applied to firearm sales/marketing, the court held that § 898 satisfies the predicate exception. It also rejected conflict preemption, finding no obstacle to PLCAA’s objectives, as Congress permitted state firearm regulations.
Decided on June 5, 2025, Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos reversed a First Circuit ruling allowing Mexico’s lawsuit against U.S. firearms manufacturers, including Smith & Wesson and Beretta, to proceed under PLCAA’s predicate exception. Mexico alleged manufacturers aided and abetted illegal gun sales to Mexican cartels, claiming up to 90% of crime-scene guns in Mexico originated in the U.S. The Supreme Court’s ruling has profound implications for NSSF v. James.
The Court reaffirmed PLCAA’s core purpose: to halt lawsuits holding manufacturers liable for third-party misuse, emphasizing that the predicate exception must be narrowly construed to avoid “swallow[ing]” PLCAA’s protections (605 U.S. at 15). Mexico’s aiding-and-abetting claims—based on supplying known rogue dealers, failing to regulate distribution, and designing/marketing guns appealing to cartels—were rejected for lacking “conscious and culpable participation” (Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023)). Key holdings include:
Justice Thomas’s concurrence suggested that a “violation” may require prior adjudication of guilt or liability, not mere allegations, to avoid forcing manufacturers to litigate criminal guilt in civil suits. Justice Jackson’s concurrence stressed that claims must be tied to specific statutory violations, viewing Mexico’s suit as an attempt to impose extra-legislative duties.
The Second Circuit, covering New York, Connecticut, and Vermont, is often perceived as restrictive in Second Amendment cases compared to other circuits, particularly post-District of Columbia v. Heller, 554 U.S. 570 (2008), and New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). While not overtly hostile, its rulings reflect deference to state regulatory authority, contrasting with more expansive interpretations in circuits like the Fifth or Ninth.
In New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242 (2d Cir. 2015), the court upheld New York’s SAFE Act using intermediate scrutiny, prioritizing public safety—a less protective standard than the strict scrutiny applied in some Fifth Circuit cases. In Kachalsky v. Cacace, 701 F.3d 81 (2d Cir. 2012), it upheld New York’s “proper cause” concealed carry requirement, later struck down in Bruen, indicating pre-Bruen deference. Post-Bruen, in Antonyuk v. Nigrelli (2023 WL 1798771 (2d Cir. 2023)), the court partially upheld New York’s Concealed Carry Improvement Act, staying injunctions against certain provisions, showing caution in invalidating state laws.
This restrictive tendency may influence NSSF v. James, potentially leading the court to uphold § 898 unless Smith & Wesson clearly compels reversal – which I believe it does.
In a June 6, 2025, letter to the Second Circuit, the plaintiffs argued that Smith & Wesson confirms § 898’s preemption. They noted that § 898-b(1) mirrors Beretta’s general nuisance statute, merely substituting “gun industry member” for “person,” targeting downstream harms PLCAA prohibits. Section 898-b(2), requiring “reasonable controls,” aligns with Mexico’s rejected claim that manufacturers should regulate dealers, deemed nonfeasance. The plaintiffs also cited the Court’s rejection of liability for legal firearm design/marketing, undermining § 898’s nuisance theory.
Smith & Wesson bolsters the plaintiffs’ preemption claim by demanding a narrow predicate exception and specific, culpable conduct. While Beretta remains binding, the Supreme Court’s emphasis on PLCAA’s protective scope could prompt the Second Circuit to reconsider whether § 898 qualifies as a predicate statute. The similarity between § 898-b(1) and Beretta’s statute, combined with the rejection of nonfeasance-based liability for § 898-b(2), suggests preemption. Justice Thomas’s view on prior adjudication could challenge the district court’s reliance on § 898’s statutory existence.
The plaintiffs have a high likelihood of success on their preemption claim. Smith & Wesson provides a compelling basis to argue § 898 is preempted, as it targets downstream harms Congress intended to prohibit. However, the Second Circuit’s restrictive Second Amendment jurisprudence and reliance on Beretta pose hurdles. Given the Supreme Court’s clear directive, reversal is likely, but the Second Circuit’s deference to state regulation could temper the outcome.
The Supreme Court’s Smith & Wesson decision marks a pivotal development in the NSSF v. James appeal, reinforcing PLCAA’s robust protections for gun manufacturers. By demanding specific, culpable conduct and rejecting broad liability theories, the Court has strengthened the plaintiffs’ argument that § 898 is preempted. Despite the Second Circuit’s restrictive approach to Second Amendment cases, Smith & Wesson may compel reversal, affirming Congress’s intent to shield the firearms industry from lawsuits over third-party misuse. With oral arguments expected in early 2026 and a decision likely by mid-2026, the case remains a critical battleground for gun rights advocacy.
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