On Feb. 6, 2025, the National Shooting Sports Foundation announced that it had reopened its federal court case against the New Jersey Attorney General in response to a string of enforcement actions brought by the AG’s office against several of its members including brick-and-mortar retailers and then most recently against Glock Inc. and Glock Ges.m.b.H, its Austrian parent company. The lawsuit, originally filed in New Jersey Federal District Court on Nov. 16, 2022, was brought just four months after NJ’s “nuisance law” took effect. While NSSF obtained a preliminary injunction in the original Federal District Court case, its suit was ultimately dismissed at the Third Circuit Court of Appeals for lack of standing.
New Jersey’s nuisance law (N.J. Stat. § 2C:58-35) allows the New Jersey Attorney General to bring civil enforcement actions against gun manufacturers, distributors and retailers engaged in otherwise lawful commercial activity when those industry members engage in conduct that the Attorney General has determined involves a lack of “reasonable” controls. Gov. Phil Murphy signed the nuisance law in July of 2022 as part of a package of bills brought to his desk in a knee-jerk reaction by the NJ legislature in response to the U.S. Supreme Court’s decision in the landmark case New York State Rifle & Pistol Assn. v. Bruen.
This nuisance law essentially authorizes the New Jersey AG to bring frivolous lawsuits and create an unstable regulatory environment for the gun industry in the state in contravention of the Federal Protection of Lawful Commerce in Arms Act and the Constitution. While the lower court agreed, the Third Circuit, at the time, reasoned that the lower court lacked jurisdiction because it failed to show that there was an immediate threat of such enforcement actions, based largely on the State’s briefs which pleaded that it would abstain from prosecuting otherwise lawful conduct.
In its motion for leave to amend and reopen its original complaint, NSSF’s Counsel Attorney Daniel Schmutter writes,
Unfortunately, the Attorney General’s promises proved short-lived. Mere months after securing dismissal of this case, he began doing exactly what he assured the Third Circuit he would not do: filing lawsuits against industry members under [NJ’s nuisance law] for their participation in lawful commerce and seeking to hold them liable for harms caused by the criminal acts of third parties… The Attorney General’s about-face eliminates all doubt that NSSF’s members now face a concrete and substantial threat of enforcement.
NSSF’s motion makes clear just how pernicious the nuisance law is.
[T]he Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§7901-03 (“PLCAA”) expressly prohibits efforts to impose civil liability on “a manufacturer or seller” of firearms or ammunition based on “the criminal or unlawful misuse of [such products] by … a third party.” Id. §7903(5)(A). To boot, the Commerce Clause prohibits New Jersey from regulating commerce that takes place beyond its borders; the First Amendment prohibits New Jersey from punishing truthful marketing about lawful products; the Second Amendment protects commerce in arms; and the Due Process Clause prohibits punishing one private party for the conduct of another. All of that means New Jersey’s statute cannot stand.
Given the New Jersey Federal District Court’s prior rulings and with the standing issues now resolved, gun owners and industry participants in New Jersey should expect similar positive outcomes this time around. In addition, on March 4th the U.S. Supreme Court will hear oral arguments in Smith & Wesson Brands, Inc., et al. v Estados Unidos Mexicanos which squarely centers on the PLCAA and the scope of Second Amendment protections for commerce in arms. That case will likely be decided in June of this year and will likely have a significant impact on NSSF’s case in New Jersey.
In the case before the Supreme Court, Mexico attempted to sue US gun manufacturers for otherwise lawful commercial activity that it believes contributes to the flow of illegal guns across the southern border of the US into Mexico. A foreign state reaching across international boundaries to regulate US arms manufacturers has obvious significant policy implications. So much so that the entire U.S. House of Representatives filed an amicus brief in the Supreme Court case stating that Congress “has a substantial institutional interest in preserving its constitutional authority to decide how to regulate the firearms industry. Congress has been wrestling with that complicated issue for nearly a century, weighing competing interests as it makes legislative decisions. How, exactly, to balance those interests is a policy question that the Constitution assigns to Congress, subject to the constraints of the Second Amendment.”
Like Mexico, New Jersey’s enforcement actions have reached far beyond its borders and the scope of its authority.
