By: José Niño
The state of New York is currently embroiled in a legal dispute over a public nuisance law targeting gun manufacturers for gun crimes.
Gun organizations, including the National Shooting Sports Foundation (NSSF), in addition to 14 firearms manufacturers, distributors, and retailers have banded together in this lawsuit against New York.
In a piece titled, “New York aims big on gun control — and misses, again,” George Washington University Public Interest Law professor Jonathan Turley argues that these groups “should have an excellent shot at a preliminary injunction.” He believes the Empire State’s current public nuisance law “doubles down on a failed legal theory using torts as a substitute for direct legislative bans or barriers.”
When he was in office, former Gov. Andrew Cuomo praised the law and said it was a necessary response to the “epidemic” of gun violence that New York was facing.
Turley believes major metropolitan areas under Democratic control are hatching “poorly conceived and poorly drafted measures” that will wind up getting stuck down by the courts.
The law professor cited the District of Columbia v. Heller decision — a 2008 ruling that determined the Second Amendment protects the individual right to bear arms — as well as McDonald v. City of Chicago, where the court ruled that the right is incorporated against state and local government.
Now, New York City is likely following in Chicago and D.C.’s footsteps after it passed a law that prohibited the transfer of unloaded and locked firearms from one’s home to anywhere save a few designated shooting ranges within the city. This kicked off the New York State Rifle & Pistol Association, Inc. v. City of New York case.
When this case was accepted for Supreme Court review, New York City officials hastily worked to dismiss the case as moot by removing some of its controversial provisions.
Justices Neil Gorsuch and Clarence Thomas specifically criticized New York for “manipulating” the docket by scrapping an unconstitutional law before a final opinion is rendered. Similarly, Justice Brett Kavanaugh criticized New York’s political maneuvers and declared 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 recently took another case by the same leading plaintiff in the New York State Rifle Association. This case is New York State Rifle & Pistol Association, Inc. v. Bruen, which deals with the Sullivan Act of 1911. The Sullivan Act granted local officials the power to determine which individuals can carry concealed firearms based on demonstrating “proper cause.”
The Bruen case could see a significant expansion in the right to concealed carry nationwide.
Turley observed that, “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.”
In 2005, the federal government passed a significant piece of legislation — the Protection of Lawful Commerce in Arms Act of 2005 — granting gun sellers and manufacturers immunity from liability during incidents when criminals use firearms.
In New York’s latest gun control effort, the state is using an exception under the law if a company “knowingly violated a state or federal statute applicable to the sale or marketing” of firearms to justify its gun control encroachment. Turley observed that, “If allowed, the exception would swallow the rule, in a law expressly directed at preempting such nuisance lawsuits.”
Cuomo publicly revealed that the New York law was created “to reinstate public nuisance liability for gun manufacturers.” He explicitly noted that the New York law does what Congress prohibited: “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.”
Cuomo’s candid statement shows the anti-gun Left’s true nature. They don’t care about the law and will do everything possible to implement gun control. Let’s hope the Supreme Court does its job and strikes down this unconstitutional measure.
All told, Second Amendment supporters should realize that the Left does not play by the rules and must ultimately be stopped at the ballot box or through other political mechanisms. Expecting them to behave by playing nice is simply the height of wishful thinking at this juncture of American history.
José Niño is a freelance writer based in Austin, Texas. Contact him via Facebook, Twitter, or email him at [email protected]. Get his e-book, The 10 Myths of Gun Control, here.