National Shooting Sports Foundation v. Attorney General New Jersey

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 23-1214

_______________

NATIONAL SHOOTING SPORTS FOUNDATION

v.

ATTORNEY GENERAL OF NEW JERSEY,

Appellant

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3:22-cv-06646)

District Judge: Honorable Zahid N. Quraishi

_______________

Argued: June 7, 2023

Before: HARDIMAN, BIBAS, and FREEMAN, Circuit Judges

(Filed: August 17, 2023)

Timothy Sheehan

Michael L. Zuckerman [ARGUED]

OFFICE OF ATTORNEY GENERAL OF NEW JERSEY

25 Market Street

Richard J. Hughes Justice Complex

Box 080

Trenton, NJ 08625

Counsel for Appellant

Eric A. Tirschwell

EVERYTOWN LAW

450 Lexington Avenue

P.O. Box 4148

New York, NY 10017

Counsel for Amici Everytown for Gun Safety Support

Fund, Brady Center to Prevent Gun Violence, and

Giffords Law Center to Prevent Gun Violence

Sarah A. Hunger

OFFICE OF ATTORNEY GENERAL OF ILLINOIS

100 W. Randolph Street

12th Floor

Chicago, IL 60601

Counsel for Amici Illinois, California, Connecticut,

Delaware, District of Columbia, Hawai’i, Maryland, Mas-

sachusetts, Michigan, Minnesota, New Mexico, New York,

Oregon, Pennsylvania, Rhode Island, Vermont, Washing-

ton, and Wisconsin

Timothy M. Haggerty

Rupita Chakraborty

Alexandra G. Elenowitz-Hess

FRIEDMAN KAPLAN SEILER ADELMAN & ROBBINS

7 Times Square

28th Floor

New York, NY 10036

Counsel for Amicus Legal Scholars

2

James P. Davy

ALL RISE LAW

P.O. Box 15216

Philadelphia, PA 19125

Counsel for Amicus Ryan Busse

Gretchen A. Pickering

CAPE MAY COUNTY OFFICE OF PROSECUTOR

4 Moore Road

DN-110

Cape May Court House, NJ 08210

Counsel for Amicus County Prosecutor’s Association of

New Jersey

Paul D. Clement

Erin E. Murphy [ARGUED]

CLEMENT & MURPHY

706 Duke Street

Alexandria, VA 22314

Counsel for Appellee

Joshua N. Turner

OFFICE OF ATTORNEY GENERAL OF IDAHO

514 W. Jefferson Street

P.O. Box 83720

Boise, ID 83720

Counsel for Amici Idaho, Alabama, Alaska, Arkansas,

Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi,

Montana, Nebraska, North Dakota, Ohio, South Carolina,

South Dakota, Texas, West Virginia, and Wyoming

3

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OPINION OF THE COURT

_______________

BIBAS, Circuit Judge.

Federal courts are not forecasters. The Constitution limits

our jurisdiction to disputes that have ripened fully. We may not

prejudge hypothetical cases or offer legal advice. Instead, par-

ties must first be injured before coming to us for redress. Only

then do we react. When constitutional rights are at stake, we

accelerate that timeline—but only slightly. We may hear a case

before a person’s rights are violated only if the threat is

imminent.

The National Shooting Sports Foundation challenges a new

state gun law as violating its members’ constitutional rights.

But we see little evidence that enforcement is looming. Be-

cause the Foundation has jumped the gun, its challenge must

be dismissed.

I. NEW JERSEY’S LAW AND THE FOUNDATION’S LAWSUIT

Last year, New Jersey passed a law to combat “bad actors

in the gun industry.” N.J. Stat. § 2C:58-33(a). The Law empow-

ers the state’s Attorney General—and only the Attorney Gen-

eral—to sue gun-industry members whose “unlawful … or un-

reasonable” conduct “contribute[s] to a public nuisance in

[New Jersey] through the sale, manufacturing, distribution, im-

porting, or marketing of a gun-related product.” § 2C:58-

35(a)(1). It also requires industry members to “establish, im-

plement, and enforce reasonable controls” on these activities.

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§ 2C:58-35(a)(2). The Attorney General has not yet tried to en-

force the Law against anyone.

Four months after the Law was passed, the Foundation filed

this pre-enforcement lawsuit. The Foundation is a trade group

of gun makers, retailers, and other industry members. It claims

that the Law is preempted by a federal statute (the Protection

of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901–7903)

and violates due process, the First and Second Amendments,

and the dormant Commerce Clause. Its complaint asserts that

the “interests of its members … are impaired by the threat of

sweeping liability under” the Law. App. 27 ¶ 10. But it says

little more about those members, their interests, or their plans.

Soon after filing its complaint, the Foundation moved for a

preliminary injunction. With that motion, the Foundation at-

tached two declarations: one from Beretta’s general counsel

and one from SIG Sauer’s chief legal officer. Both men de-

clared that those gunmakers “will continually be at risk of liti-

gation and potential liability unless [they] cease[ ] doing busi-

ness.” App. 93, 96. But they gave no factual detail.

Granting the motion, the District Court enjoined the Attor-

ney General from enforcing any part of the Law against any-

one. It held that the Foundation had standing and that the Law

was preempted, but it did not reach the Foundation’s other ar-

guments. We granted a partial stay pending appeal.

The District Court had jurisdiction under 28 U.S.C. § 1331,

and we have jurisdiction under § 1292(a)(1). We review the

court’s subject-matter jurisdiction de novo. Great W. Mining

& Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir.

2010).

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II. THE FOUNDATION HAS NOT SHOWN STANDING

A. The Foundation must show a case or controversy

Before reaching the merits, we must first ensure that this

case presents a dispute suitable for courts to resolve. See Trump

v. New York, 141 S. Ct. 530, 535 (2020) (per curiam). Arti-

cle III of the Constitution limits the judicial power to “Cases”

and “Controversies.” That limit includes two requirements.

First, the plaintiff needs standing. The Foundation must

“show an injury in fact caused by the defendant and redressable

by a court order.” United States v. Texas, 143 S. Ct. 1964, 1970

(2023). An injury in fact, in turn, must be “concrete, particu-

larized, and imminent rather than conjectural or hypothetical.”

Trump, 141 S. Ct. at 535 (internal quotation marks omitted).

To be “imminent,” either a threat of injury must be “certainly

impending,” or there must at least be “a substantial risk that the

harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S.

149, 158 (2014) (internal quotation marks omitted).

Second, and closely related, the case must be ripe. It must

not “depend[ ] on contingent future events that may not occur

as anticipated, or indeed may not occur at all.” Trump, 141 S.

Ct. at 535 (internal quotation marks omitted). Standing and

ripeness both stem from the same constitutional limit and often

“boil down to the same question.” Driehaus, 573 U.S. at 157

n.5 (internal quotation marks omitted). Following the Court’s

lead, we usually refer to standing, though most of our analysis

applies to both.

Standing and ripeness demand certainty and immediacy.

Pre-enforcement challenges fit oddly with these requirements.

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They are “the exception rather than the rule.” Artway v. Att’y

Gen. N.J., 81 F.3d 1235, 1247 (3d Cir. 1996). Even in consti-

tutional cases, there is no “unqualified right to pre-enforcement

review.” Whole Woman’s Health v. Jackson, 142 S. Ct. 522,

537–38 (2021). Yet we allow some such challenges. We do not

force people seeking to exercise their constitutional rights to

wait until they are prosecuted criminally. Driehaus, 573 U.S.

at 161.

But pre-enforcement challenges must still satisfy Arti-

cle III. So we apply a specialized test to discern whether the

threat of enforcement is imminent. Id. at 159. The Foundation

must show that it or its members (1) intend to take action that

is (2) “arguably affected with a constitutional interest” but is

(3) arguably forbidden by the Law, and (4) the threat of en-

forcement against them is substantial. Id. (internal quotation

marks omitted). For a preliminary injunction, bare allegations

are not enough; the Foundation must produce evidence show-

ing “more than a mere possibility” that their rights are threat-

ened. Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 152–53

(3d Cir. 1999).

B. The Foundation’s intent to act is too general

The Foundation stumbles out of the gate. It offers two theo-

ries of injury. First, it says the “very act of being subjected to

an amorphous nuisance suit under [the Law] … would injure

[the Foundation] and its members” because federal law “cre-

ates a substantive rule of law granting [them] immunity.” Ap-

pellee’s Br. 18 (internal quotation marks omitted). Second, it

says they are “already suffering” an injury to their First and

Second Amendment rights. Id. at 20. Because they do not know

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what marketing and manufacturing will be considered unrea-

sonable, the Law supposedly chills their protected conduct. Id.

Both theories fail. The first theory goes not to standing, but

to the merits. Even if federal law gives gun sellers a statutory

immunity that New Jersey would violate just by filing a com-

plaint, a statutory violation is not enough to show standing.

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205 (2021).

The Foundation must also show how violating their purported

statutory immunity “has a close relationship to a harm tradi-

tionally recognized as providing a basis for a lawsuit in Amer-

ican courts.” Id. at 2204 (internal quotation marks omitted). It

has not done so. Nor has it explained why this potential statu-

tory (rather than constitutional) violation would justify pre-

enforcement review. We will not try to connect the dots for it.

The Foundation’s second theory is not much better. It rests

on “generalized allegations.” Sherwin-Williams Co. v. County

of Delaware, 968 F.3d 264, 269 (3d Cir. 2020). The Founda-

tion says little about what it plans to do. It has pleaded that it

is an association of gun makers and sellers, and it has offered

declarations that the Law chills its members’ manufacturing,

marketing, and sales. From that evidence, we can infer that its

members plan to make, market, and sell guns. But that is all.

Yet “an allegation that certain conduct has (or will have) a

chilling effect on one’s speech must claim a … threat of spe-

cific future harm.” Id. at 269–70 (internal quotation marks

omitted). The same goes for one’s Second Amendment rights.

But the Foundation makes no such specific claim. It repeatedly

conjures the specter of “sweeping liability” that will force its

members to shutter their businesses. App. 24, 27, 46; accord

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App. 93, 96. Yet its bold assertion is backed by no evidence. A

plaintiff must do more than assert “subjective chill.” Clapper

v. Amnesty Int’l USA, 568 U.S. 398, 418 (2013) (internal quo-

tation marks omitted).

Three years ago, we tossed out such a vague allegation. In

Sherwin-Williams, the plaintiff company “claim[ed] that the

specter of [a] potential lawsuit ha[d] caused it to reconsider and

question its membership in various trade organizations and its

petitioning to the government on any issues.” 968 F.3d at 270

(cleaned up). We rejected that claim as a “generalized allega-

tion insufficient to satisfy Article III’s requirements.” Id.

(cleaned up). So too here.

These shortcomings undermine the Foundation’s intent to

act, which might alone suffice to torpedo standing. But they

also influence the other prongs. Though the Law clearly regu-

lates selling and marketing guns, whether the Foundation’s in-

tended conduct is arguably forbidden is murky. And in the

same vein, they also undermine the threat of enforcement.

C. The Foundation has not shown that the threat of en-

forcement is substantial

The Foundation asserts that New Jersey “has said—

repeatedly—that it fully intends to deploy [the Law] against

[the Foundation’s] members, which it apparently considers ap-

propriate targets for no other reason [than] that they participate

in the legal firearms industry.” Appellee’s Br. 21. But it offers

no concrete examples of New Jersey’s making such statements.

Nor does it show any of the traditional signs of a threat of en-

forcement. And its alternative evidence is unconvincing.

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1. The Foundation lacks any signs of an enforcement threat.

In Driehaus, the Supreme Court described the necessary threat

of enforcement as “credible” and “substantial.” 573 U.S. at

158–59, 164. Of course, those words are flexible and must be

read in context. Fortunately, the Court supplied that context. It

distilled from its precedents several signs of a substantial

threat. Id. at 158–61. Some signs involve past enforcement;

others concern the enforcer. Not one is present here.

Start with past enforcement. A strong sign of future en-

forcement is that a law has been enforced against the plaintiff,

a closely related party, or others for similar conduct. Id. at 159–

60, 164. It is also telling if enforcement actions are “not a rare

occurrence.” Id. at 161, 164–65. Yet the Law has not been en-

forced against anyone, let alone the Foundation or its members.

True, the Law is new, so lack of enforcement does not tell us

much either way. But the Foundation bears the burden to show

standing, and this indeterminate factor does not help it carry

that burden.

Nor do the enforcer-related signs help. For one, the risk of

enforcement is greater when private parties can enforce the

law. Id. at 164. Inversely, the risk is lower when enforcement

is “restricted to state officials who are constrained by explicit

guidelines or ethical obligations.” Id. Only the Attorney Gen-

eral can enforce this Law. So any “eventual action will reflect

both legal and practical constraints, making any prediction

about future injury just that—a prediction.” Trump, 141 S. Ct.

at 536.

For another, we consider what the enforcer has said about

enforcement plans. Driehaus, 573 U.S. at 161, 165. Though

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statements made in litigation are hardly dispositive, they do

matter. And the Attorney General has disavowed prosecuting

the Foundation or its members just for participating in “lawful

commerce,” which is all the Foundation has said it wants to do.

Oral Arg. 5:23–35; see Matthew A. Goldstein, PLLC v. U.S.

Dep’t of State, 851 F.3d 1, 5 (D.C. Cir. 2017) (“[Plaintiff] of-

fers only vague and general descriptions of legal activities that

the firm intends to undertake, none of which the [government]

views as” unlawful).

Instead, the Attorney General insists that the Law covers

only industry members’ “own misconduct.” Appellant’s Br.

15. Granted, we are not sure just how far the Attorney Gen-

eral’s view of “misconduct” sweeps. But the Foundation could

have asked the Attorney General to clarify what he will prose-

cute. See Presbytery of N.J. of Orthodox Presbyterian Church

v. Florio, 40 F.3d 1454, 1466–67 (3d Cir. 1994). And it is even

less clear what the Foundation and its members now fear to do.

To be sure, the Foundation need not “confess that [it] will

in fact violate th[e] law.” Driehaus, 573 U.S. at 163. But it

must give us something to go on. For example, speakers need

not admit a plan to violate a ban on “false” or “deceptive” state-

ments; it is enough that “erroneous statement is inevitable in

free debate.” Id. at 160 (internal quotation marks omitted).

Here, by contrast, the Foundation never explains how simply

making, marketing, or selling guns will inevitably trigger this

Law.

Indeed, the proposed “remedy crafted by the [Foundation]

underscores the contingent nature of [its] injuries.” Trump, 141

S. Ct. at 536. At oral argument, counsel for the Foundation said

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an injunction trimming the Law down to fit the federal statute

would remedy its injury, so long as we also clarified the scope

of federal law. This concession reveals that the nature of indi-

vidual enforcement actions matters more than the Law itself,

especially for the Foundation’s first theory of injury. So “the

source of any injury to the plaintiffs is the action that the

[Attorney General] might take in the future … not the [Law]

itself in the abstract.” Id. (internal quotation marks omitted).

With so much still vague and uncertain, a court should not

weigh in. “Letting the Executive Branch’s decisionmaking

process run its course not only brings more manageable pro-

portions to the scope of the parties’ dispute, but also ensures

that we act as judges, and do not engage in policymaking

properly left to elected representatives.” Id. (internal quotation

marks and citations omitted).

2. The Foundation’s other evidence is weak. Sensing the

thinness of its proof, the Foundation points to four other pieces

of evidence that enforcement looms. None moves the needle.

First, the Attorney General has set up an office to enforce

the Law. But “an officer stand[ing] ready to perform his duty

falls far short of such a threat as would warrant the intervention

of equity. And this is especially true where there is a complete

absence of any showing of a definite and expressed intent to

enforce particular clauses of a broad, comprehensive and

multi-provisioned statute.” Watson v. Buck, 313 U.S. 387, 400

(1941). The office is “akin to a statement of intent to prosecute

all violators of the statute under normal prosecutorial standards

that, absent allegations of prior threats or characteristics indi-

cating an especially high probability of enforcement, do[es] not

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constitute a threat of enforcement.” Hemp Indus. Ass’n v. DEA,

36 F.4th 278, 291 (D.C. Cir. 2022) (brackets and internal quo-

tation marks omitted). The office suggests no specific threat to

the Foundation or its intended conduct.

Second, New Jersey sought an emergency stay of the Dis-

trict Court’s injunction. Yet we hesitate to infer the Attorney

General’s enforcement priorities from his zealous defense of a

duly enacted state law. And because the District Court pur-

ported to enjoin enforcement against anyone, seeking a stay of

that injunction tells us little about the threat to the Foundation

or its members. Plus, the Foundation is the one who sued the

state and got the preliminary injunction, provoking the Attor-

ney General’s response to restore the status quo ante. So that

response does not create an injury. See, e.g., Clapper, 568 U.S.

at 416 (rejecting self-inflicted harm as injury in fact); cf. New

Rock Asset Partners, L.P. v. Preferred Entity Advancements,

Inc., 101 F.3d 1492, 1503–04 (3d Cir. 1996) (observing, in re-

moval context, that parties cannot “manipulate federal jurisdic-

tion” through “strategic behavior”).

Third, at oral argument, the Foundation noted that Buffalo

has sued under a similar New York law. But a city’s decision

to sue under another state’s law tells us nothing about the New

Jersey Attorney General’s plans. As in Sherwin-Williams, we

will not impute one jurisdiction’s choices to another. 968 F.3d

at 272.

Fourth, also at oral argument, the Foundation cited the

Law’s preamble to show a threat. Though the preamble gives

us a window into the legislature’s thinking, it tells us nothing

about the Attorney General’s focus. And the preamble zeroes

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in on “bad actors in the gun industry.” N.J. Stat. § 2C:58-33.

The Foundation does not show how this suggests, much less

creates, a substantial risk of prosecution just for making, mar-

keting, and selling guns.

So we are left with the same uncertainty we had in Sherwin-

Williams—the Attorney General “might sue” the Foundation

or its members, “but it might not.” 968 F.3d at 272.

D. Plus, this Law is less chilling because it is civil, not

criminal

As discussed above, the Foundation has not shown a sub-

stantial likelihood that the Law will be enforced against it. That

alone suffices to defeat standing. And our holding that this case

is non-justiciable is bolstered by the Law’s purely civil nature.

The attenuated risk of enforcement here matters less for Article

III standing than in many pre-enforcement cases because the

Law is exclusively civil. In Driehaus and every pre-enforcement

case that it recounted, the statutes at issue included criminal

penalties. 573 U.S. at 158–60, 166. Indeed, as we noted at the

start, much of the point of pre-enforcement challenges is to let

people vindicate their constitutional rights without having to

risk prosecution. See id. at 161. But civil penalties lower the

temperature. And the same arguments made in the pre-

enforcement challenge can be raised as affirmative defenses

later. See Whole Woman’s Health, 142 S. Ct. at 538; Sherwin-

Williams, 968 F.3d at 270.

True, defending a civil suit can be cumbersome. Driehaus

left open whether the threat of administrative penalties alone

would be enough for standing. 573 U.S. at 165–66; see also

Const. Party of Pa. v. Aichele, 757 F.3d 347, 364 n.20 (3d Cir.

14

2014). And we do not foreclose it either. But our inquiry into

the concrete “burdens” on constitutional rights is holistic and

fact-intensive. Driehaus, 573 U.S. at 165. And when the “ripe-

ness question is otherwise close, the distinction between crim-

inal and civil sanctions might tip the balance.” 13B Charles

Alan Wright et al., Federal Practice and Procedure § 3532.5

(3d ed. 2023). With the scales already tipped against the Foun-

dation, the lack of criminal penalties seals the case against it.

In the end, “the chilling effect associated with a potentially

unconstitutional law being on the books is insufficient to jus-

tify federal intervention in a pre-enforcement suit. Instead, [the

Supreme] Court has always required proof of a more concrete

injury …. whether the challenged law in question is said to chill

the free exercise of religion, the freedom of speech, the right to

bear arms, or any other right.” Whole Woman’s Health, 142 S.

Ct. at 538 (internal quotation marks and citations omitted).

*****

Pre-enforcement challenges are unusual. To bring one, the

plaintiff must show that the stakes are high and close at hand.

Normally, that means constitutional rights are at issue, those

rights are threatened by significant penalties, and those penal-

ties might well be imposed, as shown by past enforcement in

similar situations or some other evidence of the threat.

Yet this suit falls far short of even the “normal” pre-

enforcement challenge. A brand-new civil tort statute, without

more, does not justify a federal court’s intervention. Because

the Foundation’s case is not yet fully formed, we will vacate

the preliminary injunction and remand with instructions to dis-

miss this action for lack of jurisdiction.

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