Trigger Warnings

A revolution is coming to the firearms industry, which, alone among dangerous product manufacturers, has largely evaded accountability for the harmful consequences of their products.

My forthcoming book, Outgunned No More: The New Era of Firearms Accountability, focuses on this legal upheaval occurring with the enactment of firearms public nuisance and consumer protection statutes in nine states. These statutes empower state attorneys general, private attorneys, and individuals to sue firearms industry defendants.

In 2021, New York became the first state to enact a public nuisance law subjecting gun sellers and manufacturers to liability for public nuisance if they failed to implement reasonable controls to prevent the unlawful sale, possession, or use of firearms. The statute allows gun manufacturers and distributors to be held liable for actions that harm public safety. The statute specifically regulates the marketing, distribution, and sale of firearms.

Gun industry actors have insulated themselves from liability for decades.

The New York legislation reflects a carefully crafted workaround of the federal Protection of Lawful Commerce in Arms Act (PLCCA) in an innovative attempt to end the firearms industry’s sweeping immunity from suit. California enacted similar legislation in 2022, declaring that gun manufacturers create a public nuisance if they fail to follow state and local gun laws resulting in injury or death. New Jersey, Delaware, California, Colorado, Hawaii, Illinois, Maryland, and Washington have since enacted similar laws.

Gun industry actors have insulated themselves from liability for decades. These statutes embody a new legislative and judicial strategy to enable governmental and private plaintiffs to hold gun industry actors accountable, just as state attorneys general allied with the private bar finally held Big Tobacco accountable for harms in the landmark 1998 Tobacco Master Settlement Agreement. The new public nuisance laws will finally enable a firearms mass tort litigation, following the models of tobacco, pharmaceuticals, medical devices, opioids, lead paint, environmental pollution, vaping, and other community-based mass tort litigation.

Immunization from Legal Liability

After a series of municipal lawsuits threatened the gun industry in the early 21st century, lobbyists influenced Congress to enact PLCAA in 2005. The Congressional findings and purposes specifically state that the statute is intended to prevent these vexatious municipal lawsuits. The statute provides sweeping industry immunity for gun-related harm.

The statute includes six narrow exceptions for claims of (1) negligent entrustment, (2) breach of contract or warranty, (3) product liability, (4) false record entries, and (5) aiding and abetting or conspiracy to sell a firearm to someone prohibited from owning a firearm. The sixth exception, the predicate statute exception, allows a lawsuit where a manufacturer or seller knowingly violates a statute or federal law relating to the sale or marketing of a firearm. Since PLCAA’s enactment, attorneys have largely been unsuccessful in invoking the exceptions because courts accepted conventional tort defenses to these claims.

The new strategy, however, would provide a predicate statute basis to circumvent PLCAA’s broad immunity. New York’s state attorney general sued creators and sellers of ghost guns under the new law, which the Second Circuit upheld against constitutional challenge. The New Jersey state attorney general then followed with similar ghost gun litigation under its statute. Several federal courts have dismissed challenges brought by the National Sports Shooting Foundation, holding the challenges as premature in absence of litigation invoking the statutes.

These new laws accomplish several goals. They avoid Second Amendment right-to-bear arms challenges, they effectively undermine institutional and constitutional separation-of-powers arguments, and they exempt the blanket immunity provided by PLCAA. Because PLCAA has long presented the most formidable barrier to judicial relief, states have now made a tremendous inroad on the ability to sue the firearms industry.

Why Has the Gun Industry Evaded Accountability?

There are several major reasons why the gun industry has been unaccountable for its societal harms. First, the Supreme Court consistently has upheld Second Amendment challenges to gun regulations. Second, as discussed, the firearms industry has immunized itself successfully from legal liability time and again. And third, guns are the only products not regulated by federal and state consumer protection regulatory agencies.

Congress created a large consumer protection bureaucracy to protect consumers from fraudulent, reckless, unsafe, and injurious business practices resulting in injuries from products. States likewise protect consumers through parallel legislation. Consumer protection laws deal with ensuring the safety of everyday products such as automobiles, household appliances, food products, cosmetics, pharmaceuticals, medical devices, chemical contaminants, children’s toys, and commercial building supplies.

Unlike almost every other consumer product, the firearms industry is not subject to federal government consumer safety standards and regulations.

Various administrative agencies focus on certain consumer goods. The Food and Drug Administration and Drug Enforcement Administration regulate food items, cosmetics, and prescription pharmaceuticals. The National Highway Traffic Safety Administration regulates motor vehicles. The Environmental Protection Agency has authority over pesticides and other toxic pollution.

Unlike almost every other consumer product, the firearms industry is not subject to federal government consumer safety standards and regulations. When Congress created the Consumer Products Safety Commission in 1972, successful industry lobbying exempted the firearms industry from the Commission’s jurisdiction. No federal agency collects data on gun-related complaints, requires pre-market testing of firearms products, sets product standards, or can issue defective product recalls. Commentators have suggested that firearms regulations are insufficient to protect gun purchasers or firearms users.

Because the firearms industry falls outside the purview of the consumer protection bureaucracy, gun manufacturers have been left to police themselves. Self-regulation measures to inform gun consumers of product defects have been tepid, at best. Gun manufacturers are slow to notify consumers adequately of defects and generally do not issue product recalls, relying instead on voluntary recalls. Moreover, they often issue warnings or product safety notices that would not satisfy the federal standards for other regulated consumer products.

The Future of Firearms Accountability

Each new mass shooting evokes the same ritualized public response: invocations of thoughts and prayers, outpourings of rage and disbelief, demands for investigations, pleas for tighter gun controls, appeals for enhanced mental health resources. A 2023 survey by the Johns Hopkins Center for Gun Violence documented that more than 70% of Americans support gun prevention policies, regardless of their political affiliation or whether they own guns.

Despite the overwhelming public support for addressing America’s appalling gun violence crisis, no amount of gun regulations has effectively stemmed the tide of ever-increasing gun carnage. Indeed, the entire firearms industry has, until recently, been immune from accountability for the widespread harmful consequences of gun manufacture, marketing, distribution, sale, and use in the U.S.

Now, suing the firearms industry has become a viable means for achieving reform and remediation for injured individuals and communities affected by gun violence. In my book, I see a revolutionary jurisprudential path forward for individuals and communities to finally hold the firearms industry accountable for societal harms — and compelling evidence that even the threat of a public nuisance claims could serve to encourage mass tort settlements before trial.