New York’s Circular Firing Squad: Gun Groups Sue Over Latest Legislative Misfire

Below is my column in The Hill on New York’s latest gun control measure — and the latest challenge to a New York law. What is most striking in reviewing the line of gun cases coming out of New York is that the Empire State has done more for gun rights than any “pro-gun” state. Indeed, if you look at the cases expanding gun rights, New York is the greater enabler of Second Amendment expansion of any state. The reason is that these legislative measures are propelled by political rather than legal judgment. For gun owners, New York is proof of what Napoleon Bonaparte advised “Never interrupt your enemy when he is making a mistake.”  The gun nuisance law is the latest in a long line of mistakes by New York.

Here is the column:

In hunting, there is an old adage: “aim small, miss small.” The point is that, if you want to hit a target, aim for a small part rather than the whole target. It is often the difference between a total miss and a marginal hit. In the area of Second Amendment law, the most promising legislative measures are the ones that aim small on the edges of the constitutionally-based right — the strategy used by abortion opponents. The problem is that politicians rarely want to aim small when they are trying to score big with voters.

An example is the recent New York public nuisance law seeking to make gun manufacturers liable for gun crime. Not only is the law likely to be a large miss, it will likely deliver another blow to gun control efforts by adding precedent protecting Second Amendment rights.

I’ve discussed the New York public nuisance law aimed at gun manufacturers, a law that doubles down on a failed legal theory using torts as a substitute for direct legislative bans or barriers. As expected, gun groups like the National Shooting Sports Foundation (NSSF) as well as 14 firearms manufacturers, distributors, and retailers are now filing suit. They should have an excellent shot at a preliminary injunction.

The New York nuisance law was heralded by then-Gov. Andrew Cuomo as a response to the new “epidemic” facing New Yorkers. There is, of course, nothing new about gun violence in New York, but Cuomo and other New York politicians knew that promising to crush the gun industry never fails to garner support in the Empire State … and few people hold you responsible when you aim big and miss big.

The problem is that major Democratic cities are delivering lasting self-inflicted wounds to gun control efforts with poorly conceived and poorly drafted measures.

In 2008, the District of Columbia in 2008 brought us District of Columbia v. Heller, the watershed decision declaring that the Second Amendment protects the individual right of gun possession.

In 2010, Chicago brought us McDonald v. City of Chicago, in which the Court declared that that right is incorporated against state and local government.

However, no state has done more for the Second Amendment than New York.

In 2020, the city triggered a controversial appeal in New York State Rifle & Pistol Association, Inc. v. City of New York. The law barred the transfer of unloaded and locked firearms from one’s residence to anywhere other than a small number of designated shooting ranges within the city. At its passage, New York officials pounded their chests and promised they were certain of the constitutionality of the law and would litigate it all the way to the Supreme Court. When the court accepted the case for review, however, the same officials scrambled to dismiss the case as moot after later rescinding the provisions.

The Court was not amused by New York’s gaming the judicial system. New York leaders had forced costly litigation only to pull the law at the last minute to avoid a likely finding of unconstitutionality.

Justices Neil Gorsuch and Clarence Thomas specifically called out New York for “manipulating” the docket by withdrawing an unconstitutional law just before a final opinion. Justice Brett Kavanaugh joined in the condemnation and noted, in light of the Second Circuit decision in the case, that “some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

The Court notably then proceeded to take a new case challenging a different New York law by the same lead plaintiff: the New York State Rifle Association. That case is New York State Rifle & Pistol Association, Inc. v. Bruen and deals with the Sullivan Act of 1911, giving local officials discretion over who can carry concealed guns based on a showing of “proper cause.” Bruen could now result in a major enhancement of Second Amendment rights for concealed carry permits — negating a host of laws across the country.

New York is not done with its circular firing squad on gun control.

The New York nuisance law was crafted after a series of failures of similar such nuisance laws in areas ranging from paint to, yes, guns. Indeed, Congress passed the Protection of Lawful Commerce in Arms Act of 2005, giving gun sellers and manufacturers immunity from liability arising out of the criminal misuse of firearms.

It is political merit — rather than legal merit — that has often propelled New York anti-gun laws. In this latest effort, the state sought to aim big by using an exception under the law if a company “knowingly violated a state or federal statute applicable to the sale or marketing” of firearms. If allowed, the exception would swallow the rule, in a law expressly directed at preempting such nuisance lawsuits.

Cuomo himself made the case against the law by publicly declaring that it was designed “to reinstate public nuisance liability for gun manufacturers.” He declared the New York law as doing precisely what Congress forbade: “The only industry in the United States of America immune from lawsuits are the gun manufacturers, but we will not stand for that any longer.”

The statement was remarkably moronic in a preemption case, but also showed the contempt not just for the courts but the public at large. Cuomo had no qualms in admitting that the law was a work-around of the federal law because it was more of a political than legal effort.

Now, the courts are likely to deliver another loss for New York and another big win for the Second Amendment.

That is the great irony of all of this. Gun activists often target “pro-gun states” and bemoan their legislative efforts to expand gun rights. However, the real damage being done to the gun control movement is by its own hand. Indeed, as shown this week, New York is the gift that keeps on giving to the Second Amendment. The state has thus far been about as effective in curtailing gun rights as Monty Python’s “Judean People’s Front Crack Suicide Squad” was effective in combating Roman occupation.

After all, who needs Texas when gun rights advocates have New York?

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

24 thoughts on “New York’s Circular Firing Squad: Gun Groups Sue Over Latest Legislative Misfire”

  1. If gun manufacturers are made liable for the misuse of their products, this could cascade to every product manufactured in America. If this happens, who would want to manufacture anything if you are held liable for its misuse.

    1. Yes in Wisconsin the manufacturer of the SUV driven through the crowd would be responsible for the deaths?

      1. About 25 years ago, an intoxicated diplomat plowed his car (a Ford) into another in Washington, DC, killing the teenaged driver of the second car. The young woman’s parents sued, among others, Ford and the dealership that leased the car to the diplomat as he claimed that the car’s brakes were defective. The diplomat was driving 75 mph in a 25mph zone. I don’t know how this was all resolved but it shows how things may develop in the Washuka case, since the SUV’s manufacturer has deeper pockets than the criminal responsible for it.

    2. Indep. Bob, Agree. Next it would be possible for “Pharma Co.s” to become liable for their manufactured “death jabs”, mislabeling manufactured “genetic modification concoctions” as “vaccines”, hospitals manufacturing falsehoods in order to withhold treatments based on “inexpensive, proven safe and effective” drugs (which are OTC to the vast majority of the world’s population), … , it is even possible one day politicians and their progeny would be liable for their “manufactured” failed promises. …

  2. 45,000 road deaths per year.

    Are auto manufacturers responsible for damages?

    How much damage does corrupt, biased, fraudulent and malicious legislation do?

    Legislators must be found liable for the damage done by malicious legislation – “A man [has] to answer for the wicked that [he’s] done”.*

    State and federal legislators must be impeached for legislation that directly or indirectly challenges or subverts rights, freedoms, privileges and immunities provided by the Constitution.

    Why are corrupt politicians allowed to break the fundamental law of the Constitution on a daily basis and generate illicit, deleterious and malicious legislation with complete impunity?
    ______________________________________________________________________________________________________________________________________________
    *
    Grandpappy told my pappy, back in my day, son
    A man had to answer for the wicked that he done
    Take all the rope in Texas find a tall oak tree,
    Round up all them bad boys hang them high in the street
    For all the people to see

    – Beer For My Horses, Toby Keith
    __________________________

    “It’s the [vote], stupid!”

    – James Carville
    _____________

    The American Founders established a restricted-vote republic, not a one man, one vote democrazy.

    It’s long past time for America to return to its fundamentals – the original intent as State vote restrictions of 1788.

  3. Our political divide used to be over which party was more influential in policymaking for the security of our nation and the individual rights of our citizens. While the influence of each party has steadily grown the administrative state, what’s at stake in this political tug-of-war has fundamentally changed.

    Bring on the gaslighting. 9/11 gave a green light to the influence of the security state over the old political party policy battles. The Obama era brought us the unholy alliance between the security state, Big Tech, MSM and the Democratic party. Trump’s presidency forced that alliance into the open. Add in the Marxist takeover of the education industry and we now have multiple generations demoralized to the idea of American greatness.

    The Democratic party is no longer battling for influence in policymaking for the security of our nation and the individual rights of our citizens. That party is now openly hostile to our country and the citizens that believe it’s greatness needs to be secured. The Manchin’s in Congress used to be normal. Now he’s viewed as an enemy within his own party.

    Our natural, unalienable rights will always prevail. It all depends on how much abuse of these rights the people are willing to tolerate.

    1. Well said…and it further depends on how much blood must be shed to claim those natural, unalienable rights. I pray for peace and security, but peace and security cannot excuse the abiding of tyranny.

      1. “[We gave you] a republic, if you can keep it.”

        – Ben Franklin
        ___________

        “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

        – Declaration of Independence, 1776

        1. Any and all potential American leaders have been bought off handsomely by the global communist Deep Deep State.

          The vocal versions have been bought off and given extremely lucrative radio and TV shows.

          America would have never been established if there had been a global, leadership “buyout” program and radio and television in 1776.

          The Founders gave Americans the one and only thing they could: Freedom.

          Ostensible “Americans” rejected it.

  4. Our president is a cadaver, and the leader of congress is the bride of Skeletor. What the hell happened?.

    1. Anonymous,

      Lincoln (attack on “states’ rights”, “reconstruction amendments”); Wilson (The Revenue Act; Federal Reserve Act, 17th Amendment, etc.); FDR (“progressivism”; founding of the :administrative state”; love affair with Hilter’s and his approach to government; fawning to Churchill and Stalin); Eisenhower (a “strong national economy” shall be everyone’s purpose in life; then just like Wilson attempt to distance himself from his mistakes – “beware the “Military Industrial Complex”); … and the fact that the Brits control the US Dept of State and shares responsibility for “continuity of government” with the CIA. … And, more currently we’re allowing non-citizens to be elected officials and we have no borders.

  5. It is good that guns can be used to kill people. Some people deserve to be killed. The existence of a military proves this.

  6. How typical of Democrats – they go after the gun and let the criminal skate. We need to stop calling it “gun violence” because behind violent gun crimes is an actual criminal. Guns don’t go off by themselves…they require someone to pull the trigger. We have a crime problem in America, not a gun problem.

  7. Concerning human nature, Rousseau got the “savage” part right, but he was wrong about the “noble” part.

  8. Just so there is no misunderstanding where Turley actually stands on gun control:

    “The point is not to abandon efforts to seek reforms. I have long supported gun controls. However, we can either work with legal realities in crafting such reforms or simply “scream into the void” of our constitutional law.”

    https://jonathanturley.org/2019/08/09/screaming-into-the-void-why-gun-control-is-so-hard-to-enact/

    Turley is bemoaning the failure to pass Constitutional gun control laws. I agree that such efforts should not be abandoned.

    1. You must be enjoying your nearly uninterrupted streak of losing on this subject, then. Pesky little constitution thingie…

  9. Lefty politicians are determined to avoid substantive action.

    Inflation in hurting poor people but they ignore that.

    They want to soak the rich while supporting the SALT benefits for the wealthy.

    They support $12,500 tax credits for EV’s that only the rich can afford.

    I could go on, but you get the idea.

    This gun control measure comes at the same time that more Dem voters are buying guns because of rising crime.

    Dems are out of touch with America.

    1. Monument, the left allows, and in fact supports, an open border, creating an influx of low wage workers in a time of disappearing low wage jobs. The left defunds police at a time when crime in poor areas is rising. The left gives away trillions causing inflation which affects the poor the most. The left promulgates having trans-women compete against women totally destroying woman’s sports. The left argued for years that having no father is a woman’s right for her children and that the feds should basically encourage fatherless children as being good for the “family, an idea that causes more poverty than any other idea in history.

      Liberals think that by banning law abiding people from having guns it will stop criminals from having guns???

      Liberals, the policy people with policies that continually harm the poorest among us. Policies that are given great support by the media, Hollywood and big tech, three of the richest groups in America.

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