Some of us have been closely following challenges to A1765, New Jersey’s gun industry liability law. In my view, the law is facially unconstitutional, 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.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
Clearly this looks like preemption by federal statute under the Supremacy Clause. Behind that is New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). In the body of history and tradition of State regulation of arms, where is there any case holding nuisance is a remedy against any of the supply chain people covered by the New Jersey statute?
NJ, acting like civil‑court bandits. They’re running a political‑legal shakedown.
And the gun companies need to stand firm or the whole industry gets carved up.
If the manufacturer produces a product or device is functioning properly – couldn’t you use this legal standard to unjustly punish the manufacturers of weed eaters, lawn mowers, toothpicks, tools, steak knives and automobiles?
Isn’t it the same legal standard? Does the individual user bear any responsibility for abusing these products and devices?
In other words are we going to sue a manufacturer for making steak knives because the their blades are too sharp?
Clearly this looks like preemption by federal statute under the Supremacy Clause. Behind that is New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). In the body of history and tradition of State regulation of arms, where is there any case holding nuisance is a remedy against any of the supply chain people covered by the New Jersey statute?
The Democrats:
Know there are tens of millions of guns in private hands.
Know the criminals have as many as they want or need.
Know gun violence is symptomatic of many conditions.
Know that most violence will occur with or without guns.
Know that banning guns is essentials to creaking a police state.
What they want is for you not to have guns.
What they want is for them to control guns.
Their current strategy is to ban guns by bankruptcy.
It may work.
So ban guns in the hands of blacks and Hispanics – only. Death and destruction stooped in its tracks.
The law doesn’t discriminate that way. How about requiring an older adult sponsor for young gun owners — who co-signs for criminal and civil liability should the gun be used illegally? That would give police the power to disarm all the gangs, since which older adult would ever agree to be held responsible for a gang member’s use of a firearm? More than one way to skin a cat.
There it is. With any Turley post, it takes less than 30 comments for the typical Turley reader to offer up a racist statement that actually runs counter to numerous freedoms guaranteed by the Constitution. And yet – you chuckleheads call the Dems fascists. Comical…..
Does Japan have a police state? Switzerland? Australia?
I’d be more worried about state control over news and opinion media if we want to prevent a tyrannical autocracy.
We have something in our military and police cultures that would make a dictatorship almost impossible — they swear allegiance to the Constitution — if a wannabe dictator ordered them to violate their Oath, that person would be ignored or worse.
The idea of Americans turning against one another with lethal weapons is diabolical. Those who fantasize about it wouldn’t know how to put out the flames of hatred and suspicion, and lack the cerebral clarity to design a replacement government. In fact, some % of the rebellion would simply refuse to ever holster their weapons, having tasted the power to intimidate and dominate others so easily.
Excuse us! Its about NJ.
Pb, sorry but this is a weak argument. Tyrants don’t care about the oaths they have taken. And the vast majority of gun owners are responsible. Having guns in the hands of millions of responsible citizens is the only real protection we have against tyranny.
#WeAreEstovir
The problem is, lawful gun owners would never do something unlawful like create a civil war Even if that were the only thing to preserve the Union
We should also anticipate even more noise about packing the Supreme Court.
The failings in the law to adequately protect the public appear to be the lack of harsh enforcement by Prosecutors. How many times must we endure watching the News about some career criminal escalate from petty crimes through to aggravated assault, rape, grand theft and finally murder? Here’s a News Flash, the death penalty works. It should be used effectively to prevent this cyclical trend, Live a thugs life, die a thugs death.
First degree murder should mean a quick trip to a dirt nap for cases of irrefutable evidence of the crime. If the perpetrators are crazy, expedite. When a murderer takes an innocent victims life, they no longer deserve empathy, they deserve justice.
Growing up in Newark many years ago was one of my happiest times. We walked to school, road our bikes, used the water hydrant to cool ourselves in summer, knew the names of the police on patrol, Christmas at Bambergers was a sight to behold. Mayor’s Vilani and Addonizio Republican and Democratic really cared for the community. It all went to hades when the block busting started, now you have a North and South NJ, with the South trying to hold on.
1896?
The second amendment is pretty clear; there is nothing confusing about it. It is exhausting that the blue mentality continually, for decades, fails to acknowledge the broader causes of gun violence. To be blunt: these people are stupid.
Dead is dead, doesn’t matter how it happened. Failing guns, there would be knives, and failing that, people will use their bare hands if they have the intent. Maybe look at the intent, geniuses. This is getting really, really, old. The modern dem voter with all of their marginalization and distillation of information is pretty much a fool that is insular enough to not actually authentically care about anyone in a meaningful way. The religious right is similar in their inability to consider the longer ranging consequences of their own ego stroking disguised as charity.
Stop stroking the egos or enacting policy that simply makes one feel better about *yourself* in the face of tragedy, that is not altruism but ego gratification. Enough. The world is indeed bigger than that myopic mentality, and yes, some people should be sequestered from others. Guns are not, and never were, the problem, and that ship sailed when China first brought gunpowder to the world centuries ago.
there is nothing confusing about it. Then why are states always banning them? Even the federal government wanted to ban guns and accessories?
every democrat elected official, appointed, hired…that helps illegal invaders or releases a criminal…should be PERSONALLY liable! As it we confisicate their wealth and JAIL THEM!
I can own guns to protect myself, my family, neighbors and country!
I want the Democrats Party Abolished for THEIR 2nd Civil War against America!
I believe EVERY Democrat is Liable for EVERY crime committed by illegals they help?
Democrats are committing TREASON!
@guyventner – 100% + judges who continue to release them into our lives should be held accountable. If the Republicans do anything its go after these rogue judges.
Should? That’s the repression of a very stupid MAGAot.
Believe huh? Gawd, you are a very stupid ignorant moron. Oh, one last thing, what about Trump’s crimes? He’s a republican.
And another, what if you shoot yourself in the head, are dems still to blame.?