Amicus Curiae Brief — National Shooting Sports Foundation, Inc., et al., Petitioners v. Letitia James, Attorney General of New York

No. 25-1026

In the Supreme Court of the United States

NATIONAL SHOOTING SPORTS

FOUNDATION, INC., ET AL.,

Petitioners,

v.

LETITIA JAMES, ATTORNEY GENERAL OF NEW YORK.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF FOR U.S. SENATOR TED CRUZ,

U.S. REPRESENTATIVE RUSSELL FRY,

AND 75 OTHER MEMBERS OF CONGRESS AS

AMICI CURIAE SUPPORTING PETITIONERS

DONALD M. FALK

SCHAERR | JAFFE LLP

One Embarcadero Center

Suite 1200

San Francisco, CA 94111

(415) 562-4942

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

cbartolomucci@schaerr-jaffe.com

Counsel for Amici Curiae

MARCH 30, 2026

QUESTION PRESENTED

Whether the predicate exception of the Protection

of Lawful Commerce in Arms Act, 15 U.S.C. §§79017903, allows parties to bring the same common-lawstyle suits against firearms industry members that

Congress enacted the PLCAA to prohibit, so long as

states codify those general common-law principles in a

statute that applies to commerce in arms.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION AND INTEREST OF

AMICI CURIAE........................................................ 1

SUMMARY OF ARGUMENT ..................................... 5

ARGUMENT ................................................................ 9

A.

Congress Has Recognized That The

Rights Protected By The Second

Amendment Are Fundamental To

Ordered Liberty. ............................................... 9

B.

The PLCAA Is A Necessary Shield To

Protect The Exercise Of Second

Amendment Rights. ........................................ 11

C.

1.

The PLCAA Recognizes that the

Second Amendment Is Meaningless

if Citizens Cannot Obtain Firearms. ...... 11

2.

The PLCAA’s Express Purpose Is to

Prevent Imposition of Liability on

Firearms Manufacturers for Third

Party Misuse of Firearms Under

Malleable Standards of Conduct

that Provide No Warning. ....................... 13

Review Is Warranted Because The

Second Circuit’s Decision Renders The

PLCAA Meaningless And Thwarts The

Will Of Congress. ............................................ 17

1.

D.

iii

The New York Statute Squarely

Aims

to

Flout

the

Second

Amendment and Congressional

Intent. ...................................................... 17

2.

The PLCAA Expressly Preempts

Section 898............................................... 18

3.

Section 898 Is Preempted Because It

Presents an Obstacle to the

Accomplishment of the Purposes of

the PLCAA. .............................................. 23

The Exceptional Importance Of The

Question Presented Underscores The

Need For This Court’s Review........................ 24

CONCLUSION .......................................................... 26

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Abramski v. United States,

573 U.S. 169 (2014) ................................................ 18

Andrews v. State,

50 Tenn. 165 (1871) ............................................... 12

Arizona v. United States,

567 U.S. 387 (2012) ............................................ 8, 23

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) .......................................... 21, 24

Barrows v. Jackson,

346 U.S. 249 (1953) ................................................ 18

City of New York v. Beretta U.S.A. Corp.,

524 F.3d 384 (2d Cir. 2008) ............................... 6, 18

Davenport v. Tilton,

51 Mass. 320 (1845) ............................................... 12

District of Columbia v. Heller,

554 U.S. 577 (2008) ......................................... 5, 9-11

Hines v. Davidowitz,

312 U.S. 52 (1941) .............................................. 8, 23

Jarecki v. G.D. Searle & Co.,

367 U.S. 303 (1961) ................................................ 18

Jimenez v. Quarterman,

555 U.S. 113 (2009) ................................................ 18

Luis v. United States,

578 U.S. 5 (2016) .................................................... 12

Maracich v. Spears,

570 U.S. 48 (2013) .................................................. 18

McDonald v. Chicago,

561 U.S. 742 (2010) ........................................ 5, 9, 10

v

McDonnell v. United States,

579 U.S. 550 (2016) ................................................ 18

Miller v. State,

54 Ala. 155 (1875) .................................................. 12

New York State Rifle & Pistol

Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) .............. 5, 11

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997) ................................................ 18

Smith & Wesson Brands, Inc. v.

Estados Unidos Mexicanos,

605 U.S. 280 (2025) ............................ 5, 7, 19, 20, 23

Smith v. California,

361 U.S. 147 (1959) ................................................ 13

Teixeira v. County of Alameda,

873 F.3d 670 (9th Cir. 2017) .................................. 12

Washington v. Glucksberg,

521 U.S. 702 (1997) .................................................. 9

Constitutional Provisions

U.S. Const. amend. II .......... 1, 2, 5, 6, 9, 10, 12, 14, 18

Statutes

15 U.S.C. §7901 .............. 7, 9, 11, 12, 14, 15, 17, 24-26

15 U.S.C. §7902 ........................................................... 7

15 U.S.C. §7903 ................................... 7, 13, 19, 20, 24

10 Del. Code §3930 .................................................... 25

2025 Conn. Pub. Act. No. 25-43 ................................ 25

815 Ill. Comp. Stat. 505/2DDDD............................... 25

Cal. Civ. Code §3273.51............................................. 25

Colo. Rev. Stat. §§6-27-104 to -105 ........................... 25

Haw. Rev. Stat. §§134-102 to -103 ............................ 25

vi

Md. Code Ann., Cts. & Jud. Proc.

§§3-2502 to -2503 ................................................... 25

N.J. Stat. Ann. §2C:58-35.......................................... 25

N.Y. Gen. Bus. L. §898 .... 6-8, 11, 13, 14, 17-19, 22, 23

N.Y. Penal L. §240.45 ................................................ 18

Protection of Lawful Commerce in Arms Act,

Pub. L. No. 109-92, §§2-4, 119 Stat. 2095,

2095-2099 (2005) (codified at

15 U.S.C. §§7901-7903)................. i, 1, 2, 5, 6, 20, 23

Wash. Rev. Code §7.48.330 ....................................... 25

Treatises

William Blackstone,

Commentaries (1765)............................................... 9

Joseph Story,

Commentaries on the Constitution of the

United States (1833) .............................................. 10

St. George Tucker,

View of the Constitution of the United States,

in 1 Blackstone’s Commentaries: With Notes

of Reference, to the Constitution and Laws,

of the Federal Government of the United

States; and of the Commonwealth of Virginia

(1803) ...................................................................... 10

Other Authorities

151 Cong. Rec. H8987 (daily ed. Oct. 20, 2005)........ 16

151 Cong. Rec. S8897 (daily ed. July 26, 2005) ........ 22

151 Cong. Rec. S9087 (daily ed. July 27, 2005) ........ 21

151 Cong. Rec. S9323 (daily ed. July 29, 2005) ........ 22

vii

Gov. Andrew M. Cuomo,

Governor Cuomo Signs First-in-the-Nation

Gun Violence Disaster Emergency to Build

a Safer New York, YouTube (July 6, 2021) ........... 18

H.B. 21, 2026 Gen. Assemb., Reg. Sess.

(Va. 2026) ............................................................... 25

H.B. 2672, 194 Gen. Ct., Reg. Sess.

(Mass. 2025) ........................................................... 25

H.R. Rep. No. 109-124 (2005) .................................... 22

Stephen Halbrook,

The Founders’ Second Amendment (2008) ............ 10

Stephen P. Halbrook,

The Right to Bear Arms in Texas:

The Intent of the Framers of the Bills

of Rights, 41 Baylor L. Rev. 629 (1989)................. 12

Joyce Lee Malcolm,

To Keep and Bear Arms: The Origins

of an Anglo-American Right (1994) ....................... 10

Eugene Volokh,

Implementing the Right to Keep and

Bear Arms for Self-Defense: An Analytical

Framework and A Research Agenda,

56 UCLA L. Rev. 1443 (2009) ................................ 12

INTRODUCTION AND

INTEREST OF AMICI CURIAE 1

The Second Amendment to the United States

Constitution ensures law-abiding and peaceable

American citizens the right to keep and bear arms. But

no one besides accomplished gunsmiths could exercise

that right if a citizen could not lawfully purchase a

firearm because the firearm industry had become

insolvent. Congress passed the Protection of Lawful

Commerce in Arms Act (PLCAA), Pub. L. No. 109-92,

§§2-4, 119 Stat. 2095, 2095-2099 (2005) (codified at 15

U.S.C. §§7901-7903), to prevent that outcome by

placing firearm manufacturers on equal footing with

other American manufacturers. Under the Act, so long

as a firearm is properly made and properly transferred

into commercial channels, a manufacturer is generally

not liable if a criminal later misuses that firearm in

the commission of a crime. In particular, the PLCAA

forecloses the imposition of liability under flexible and

indistinct common-law standards that provide firearm

manufacturers with no notice of the precise conduct

that is required or to be avoided. Indeed, that was the

statute’s core purpose.

The State of New York is unhappy with any

impediments to its ability to bankrupt lawful arms

manufacturers based on the actions of New York

criminals whom the State is unable or unwilling to

1 This brief was not authored in whole or in part by counsel for

any party, and no person or entity other than amici curiae or their

counsel has made a monetary contribution toward the brief’s

preparation or submission. Counsel of record for all parties

received timely notice of amici’s intent to file this brief.

2

control. In the State’s view—adopted by the Second

Circuit—the PLCAA is a paper tiger that any state

legislature may tame by simply codifying vague and

unpredictable common-law standards and explicitly

applying the new code provisions only to the firearms

industry.

The State and the court below are too clever by

half. This case presents an issue of exceptional

importance with regard to the states’ ability to

circumvent the preemptive force of federal legislation.

The PLCAA is not a mere Kabuki feint designed to

encourage its own circumvention. Rather, the Act was

designed to, and does, preempt efforts to impose hazy

common-law liability standards whether or not

codified by a state legislature to target the firearms

industry. This Court should intervene now before the

Second Circuit’s decision, directly or through its

influence, further undermines the Second Amendment

and congressional will.

Amici are U.S. Senator Ted Cruz, the Chairman

of the Subcommittee on Federal Courts, Oversight,

Agency Action and Federal Rights of the Senate

Committee on the Judiciary; 21 additional U.S.

Senators; U.S. Representative Russell Fry, Member of

the House Judiciary Committee; and 54 additional

members of the U.S. House of Representatives.

Members of Congress swear an oath to uphold the U.S.

Constitution, with its foundational principle of limited

government and its guarantees of fundamental

individual rights. One of the most important of these

rights is the Second Amendment’s guarantee of the

right to keep and bear arms. That constitutional right

implements the historic right of armed defense of self,

3

family, state, and nation, as well as the right to use

arms for other lawful purposes. Equally important is

amici’s duty to ensure that lawfully enacted federal

statutes—especially statutes designed to ease citizens’

ability to exercise their constitutional rights—are not

flouted by resistant states and misguided lower courts.

Federalism requires restraint not only on federal

intrusion into areas properly allocated to the States,

but on states’ interference with Congress’s exercise of

its federal prerogatives. Amici accordingly have a

substantial interest in the correct interpretation and

application of the PLCAA’s broad preemptive scope.

The following is the full list of U.S. Senators and

U.S. Representatives who have joined this brief as

Amici Curiae:

United States Senate

Ted Cruz

Jim Banks

John Barrasso

Ted Budd

Shelley Capito

Bill Cassidy

John Cornyn

Kevin Cramer

Mike Crapo

Steve Daines

Lindsey O. Graham

Chuck Grassley

John Hoeven

Cindy Hyde-Smith

Jim Justice

James Lankford

Mike Lee

Cynthia Lummis

Roger Marshall

Pete Ricketts

James Risch

Tim Sheehy

4

United States House of Representatives

Russell Fry

Robert B. Aderholt

Jodey Arrington

Aaron Bean

Sheri Biggs

Lauren Boebert

Eric Burlison

Buddy Carter

Ben Cline

Mike Collins

Jeff Crank

Scott DesJarlais

Gabe Evans

Mike Ezell

Pat Fallon

Julie Fedorchak

Scott Fitzgerald

Scott Franklin

Lance Gooden

Glenn Grothman

Harriet M. Hageman

Mark Harris

Diana Harshbarger

Kevin Hern

Richard Hudson

Wesley Hunt

Jeff Hurd

Ronny L. Jackson

Dusty Johnson

Nick Langworthy

Julia Letlow

Tracey Mann

Rich McCormick

Addison McDowell

Mark Messmer

Barry Moore

Blake Moore

Riley Moore

Troy Nehls

Ralph Norman

Scott Perry

Mike D. Rogers

John Rose

John H. Rutherford

Derek Schmidt

Pete Sessions

Adrian Smith

Marlin Stutzman

Claudia Tenney

Glenn “GT” Thompson

William Timmons

Ann Wagner

Randy Weber

Joe Wilson

Ryan Zinke

5

SUMMARY OF ARGUMENT

Once again, this Court is called upon to review a

decision threatening the scope of the Second

Amendment right to bear arms. And once again, the

decision warranting review undermines—here,

effectively nullifies—a federal statute that preserves

the ability to exercise those rights: the Protection of

Lawful Commerce in Arms Act, 15 U.S.C. §§79017903.

The Court once again should answer that call, as

it did most recently in Smith & Wesson Brands, Inc. v.

Estados Unidos Mexicanos, 605 U.S. 280 (2025). The

direct affront to congressional prerogatives and

constitutional rights underscores the exceptional

importance of the question presented here. This Court

should grant certiorari and reverse the decision of the

court of appeals.

Over the past two decades, this Court has

restored and reaffirmed the Second Amendment’s core

guarantee that Americans have a fundamental right

to defend themselves—first in the home (District of

Columbia v. Heller, 554 U.S. 577 (2008)), then against

state infringement (McDonald v. Chicago, 561 U.S.

742 (2010)), and finally in public (New York State Rifle

& Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022)). The

Court then recognized the central role of the PLCAA

in preserving the practical exercise of those rights by

preventing “lawsuits attempting to make gun

manufacturers pay for the downstream harms

resulting from misuse of their products.” Smith &

Wesson, 605 U.S. at 298.

6

The State of New York did not get the message.

In a statute designed to nullify the PLCAA, New York

imposes liability on the same persons protected by the

PLCAA for the same conduct protected by the PLCAA.

That law—N.Y. Gen. Bus. L. §898 (Pet.App.80-82)

(Section 898)—makes conduct by “gun industry

member[s]” that is “unreasonable under all the

circumstances” a public nuisance, and requires the

same “gun industry members” to “establish and

utilize” undefined “reasonable controls and procedures

to prevent” firearms or ammunition “from being

possessed, used, marketed or sold unlawfully.” Id.

§§898-b, 898-c (Pet.App.81-82). According to the

Second Circuit, this post hoc imposition of unknowable

standards of conduct—the same standards that the

same court found preempted when contained in a

general nuisance statute and applied to firearms

manufacturers, see City of New York v. Beretta U.S.A.

Corp., 524 F.3d 384 (2d Cir. 2008)—is permissible

because the New York legislature incorporated those

unknowable standards in a statute applicable only to

“gun industry members.” See N.Y. Gen. Bus. L. §898b (Pet.App.81).

That cannot be right, and it isn’t. In the PLCAA,

Congress expressly recognized that the Second

Amendment preserves an individual right. Congress

enacted the PLCAA because the right to bear arms is

practically worthless if the firearms industry goes out

of business, as it would if it could be sued for the

damages caused by criminal use of their products.

The text of the PLCAA makes Congress’ purpose

plain. Enacted findings declare that lawful firearm

businesses “are not, and should not[] be[,] liable for the

7

harm caused by those who criminally or unlawfully

misuse” firearms and ammunition.” 15 U.S.C.

§7901(a)(5). Moreover, Congress’ express purpose was

“[t]o prohibit causes of action against manufacturers,

distributors, dealers, and importers of firearms or

ammunition” predicated on such theories, in order

“[t]o preserve a citizen’s access to a supply of firearms

and ammunition for all lawful purposes.” Id.

§7901(b)(1), (2) (emphasis added).

The PLCAA’s provision prohibiting any “qualified

civil liability action,” 15 U.S.C. §7902(a), and the

definition of “qualified civil liability action,” id.

§7903(5)(A), must be viewed in light of the rest of the

statute. There is no dispute that the prohibition covers

an action brought under Section 898 unless it falls

within the enumerated exception for “an action in

which a manufacturer or seller of a qualified product

knowingly violated a State or Federal statute

applicable to the sale or marketing of the product, and

the violation was a proximate cause of the harm for

which relief is sought.” Id. §7903(5)(A)(iii). As this

Court

observed,

this

“predicate

exception”

encompasses only “knowing violations of gun laws,”

Smith & Wesson, 605 U.S. at 288, and provides as

examples of those laws certain recordkeeping

requirements and the prohibitions on sales to so-called

“straw” buyers who provide arms to persons who

cannot lawfully possess them. See 15 U.S.C.

§7903(5)(A)(iii)(I)-(II).

But Section 898 does not predicate liability on the

violation of a firearm-specific “gun law.” Instead, it

codifies gauzy common-law nuisance and negligence

standards of “reasonable” conduct and applies those

8

standards to the firearms industry. That is not the

type of “gun law” that falls within the exception, which

is limited to knowing violations, a concept that is

meaningless when applied to a standard of post hoc

reasonableness.

Even if merely restricting a codified common-law

action to firearms manufacturers or sellers plausibly

could come within the predicate exception, however,

Section 898 nonetheless is preempted because it

“stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.” Arizona v. United States, 567 U.S. 387,

399-400 (2012) (quoting Hines v. Davidowitz, 312 U.S.

52, 67 (1941)). Unlike many obstacle preemption

cases, here there is no question that Congress

expressly intended to preempt a broad range of state

laws, and Congress also enacted the purposes its

statute was intended to serve.

The decision below, in addition to creating the

circuit splits identified in the petition (at 18-22), has

exceptionally important consequences that warrant

this Court’s immediate intervention, for two reasons.

First, it threatens the exercise of the very Second

Amendment rights this Court has been solicitous to

protect. Second, it provides a roadmap to improperly

interpret narrow exceptions within federal statutes as

unwitting poison pills that permit hostile state and

local legislatures to nullify federal law.

9

ARGUMENT

Any fair construction of the PLCAA’s predicate

exception must take into account the findings and

purposes included in the statute. In the PLCAA,

Congress made its purposes explicit and gave

statutory force to its underlying findings. The statute

should be construed to accomplish its stated goals, not

to contain the key to its destruction by any State that

disagrees.

A.

Congress Has Recognized That The Rights

Protected By The Second Amendment Are

Fundamental To Ordered Liberty.

Congress set out the constitutional motivation for

the PLCAA, declaring that “[t]he Second Amendment

to the United States Constitution protects the rights

of individuals, including those who are not members of

a militia or engaged in military service or training, to

keep and bear arms.” 15 U.S.C. §7901(a)(2). That clear

understanding preceded by three years this Court’s

recognition of the same principle in Heller.

But it is now beyond dispute that “the right to

keep and bear arms is fundamental to our scheme of

ordered liberty.” McDonald, 561 U.S. at 767. This

Court has made “clear that this right is ‘deeply rooted

in this Nation’s history and tradition.’” Id. at 768

(quoting Washington v. Glucksberg, 521 U.S. 702, 721

(1997)). Indeed, the right to bear arms antedates the

Constitution, see Heller, 554 U.S. at 603: Blackstone

regarded it as “one of the fundamental rights of

Englishmen,” id. at 594 (citing 1 William Blackstone,

Commentaries 136, 139-140 (1765)).

10

“The right to keep and bear arms was considered

no less fundamental by those who drafted and ratified

the Bill of Rights.” McDonald, 561 U.S. at 768-769

(citing, inter alia, Stephen Halbrook, The Founders’

Second Amendment 171-278 (2008); Joyce Lee

Malcolm, To Keep and Bear Arms: The Origins of an

Anglo-American Right 155-164 (1994)). And that

regard continued in the Early Republic. Justice Story

characterized the right “as the palladium of the

liberties of a republic; since it offers a strong moral

check against the usurpation and arbitrary power of

rulers.” 3 Joseph Story, Commentaries on the

Constitution of the United States §1890 (1833).

Another leading expositor of the Constitution during

the Early Republic, St. George Tucker, used nearly

identical terms, explaining that the right to keep and

bear arms is “the true palladium of liberty,” and that

“[t]he right of self-defence is the first law of nature.”

St. George Tucker, View of the Constitution of the

United States, in 1 Blackstone’s Commentaries: With

Notes of Reference, to the Constitution and Laws, of

the Federal Government of the United States; and of

the Commonwealth of Virginia app. at 300 (1803).

When the Second Amendment was ratified in

1791, individual self-defense was “the central

component” of the underlying right to keep and bear

arms. Heller, 554 U.S. at 599. Decades later, “it is clear

that the Framers and ratifiers of the Fourteenth

Amendment counted the right to keep and bear arms

among those fundamental rights necessary to our

system of ordered liberty.” McDonald, 561 U.S. at 778.

The PLCAA should be construed in light of its

grounding in the Second Amendment, which “elevates

11

above all other interests the right of law-abiding,

responsible citizens to use arms” for lawful purposes.

Heller, 554 U.S. at 635. “It is this balance—struck by

the traditions of the American people—that demands

[this Court’s] unqualified deference.” Bruen, 597 U.S.

at 26. And that balance is what the PLCAA protects.

B.

The PLCAA Is A Necessary Shield To Protect

The Exercise Of Second Amendment Rights.

1.

The PLCAA Recognizes that the Second

Amendment Is Meaningless if Citizens

Cannot Obtain Firearms.

Congress recognized that the PLCAA is necessary

to protect Second Amendment rights, see 15 U.S.C.

§§7901(a)(1)-(2), (6)-(7); 7901(b)(3), by “preserv[ing] a

citizen’s access to a supply of firearms and

ammunition for all lawful purposes.” Id. §7901(b)(2).

The right to bear arms is unusual in that it can be

effectively exercised by the vast majority of citizens

who lack gunsmithing skills only if those citizens are

able to purchase firearms manufactured by others,

such as the petitioners here, without extraordinary

effort. One cannot exercise the right to keep and bear

arms without a means to acquire them, and firearms

cannot be acquired if no one can make and sell them.

The Second Amendment is practically meaningless if citizens cannot lawfully obtain firearms. And

firearms will become nearly impossible to procure if

companies who currently manufacture them are

forced out of business. Congress enacted PLCAA

precisely to prevent that from happening, yet that is

the result Section 898 is intended to achieve.

12

The Second Amendment encompasses the right to

“supply” that the PLCAA protects. 15 U.S.C.

§7901(b)(2). “The right to keep arms, necessarily

involves the right to purchase them ***, and to

purchase and provide ammunition suitable for such

arms[.]” Teixeira v. County of Alameda, 873 F.3d 670,

678 (9th Cir. 2017) (en banc) (quoting Andrews v.

State, 50 Tenn. 165, 178 (1871)), abrogated in part on

other grounds by Bruen, 597 U.S. at 17; see also Miller

v. State, 54 Ala. 155, 157, 158 (1875) (“constitutional

right to bear arms” encompasses “[t]he right *** to

obtain *** [a] pistol for defense”).

This follows from the axiom that “[c]onstitutional

rights *** implicitly protect those closely related acts

necessary to their exercise.” Luis v. United States, 578

U.S. 5, 26 (2016) (Thomas, J., concurring in judgment).

As a prominent early American jurist explained,

where a legal instrument “confers a right, it confers all

the necessary means by which such right can be

established and made effectual.” Davenport v. Tilton,

51 Mass. 320, 328-329 (1845) (Shaw, C.J.). “Making a

constitutional right too expensive to exercise infringes

the right just as much as criminal prohibition.”

Stephen P. Halbrook, The Right to Bear Arms in

Texas: The Intent of the Framers of the Bills of Rights,

41 Baylor L. Rev. 629, 683 (1989). Thus, “[a] ban on

gun sales, or a heavy tax on such sales, would be

unconstitutional *** because it would make it much

harder for would-be gun owners to get guns.” Eugene

Volokh, Implementing the Right to Keep and Bear

Arms for Self-Defense: An Analytical Framework and

A Research Agenda, 56 UCLA L. Rev. 1443, 1545

(2009) (footnote omitted).

13

The constitutional significance of this case is not

diminished merely because Section 898 targets

firearms suppliers rather than individual citizens.

This Court illustrated the point in holding

unconstitutional a statute targeting bookstores as a

violation of the “constitutionally protected freedoms”

of speech and press, noting that “a retail bookseller

plays a most significant role in the process of the

distribution of books.” Smith v. California, 361 U.S.

147, 150 (1959). By targeting the petitioners here—

vital participants in the commerce in lawful arms—

New York’s Section 898 threatens to frustrate their

customers’ exercise of constitutional rights. Thus,

Second

Amendment

concerns

should

guide

interpretation of the PLCAA.

2.

The PLCAA’s Express Purpose Is to

Prevent Imposition of Liability on

Firearms Manufacturers for Third

Party Misuse of Firearms Under

Malleable Standards of Conduct that

Provide No Warning.

The whole point of the PLCAA was to preserve

citizens’ ability to exercise Second Amendment rights

by insulating firearms manufacturers from ruinous

liability for third parties’ unlawful acts unless the

manufacturer “knowingly violated” a precise, concrete,

established, firearms-specific duty. 15 U.S.C.

§7903(5)(A)(iii). The Act was intended to foreclose

vague and malleable post hoc standards of conduct like

Section 898’s versions of “reasonableness.”

a. Congress’ findings set out the PLCAA’s factual

premises and guiding principles. Congress began by

14

recognizing the importance of the individual rights

guaranteed by the Second Amendment, while noting

that “[t]he manufacture, importation, possession, sale,

and use of firearms and ammunition in the United

States are heavily regulated by Federal, State, and

local laws,” citing three federal firearms statutes. 15

U.S.C. §7901(a)(1), (2), (4).

In contrast, Congress found, firearms manufacturers and sellers “are not, and should not[] be[,] liable

for the harm caused by those who criminally or

unlawfully misuse firearm products or ammunition

products that function as designed and intended.” Id.

§7901(a)(5). That statement of nonliability is the

animating principle of the PLCAA.

In particular, Congress found that such liability

rested on “theories without foundation in hundreds of

years of the common law and jurisprudence of the

United States [that] do not represent a bona fide

expansion of the common law.” Id. §7901(a)(7). Rather,

expanding liability in accord with those theories—like

the reasonableness-based theories codified in Section

898—“would constitute a deprivation of the rights,

privileges, and immunities guaranteed to a citizen of

the United States under the Fourteenth Amendment.”

Ibid.

And Congress decried the “possibility of imposing

liability on an entire industry for harm that is solely

caused by others,” noting that such lawsuits constitute

“an abuse of the legal system [that] erodes public

confidence in our Nation’s laws [and] threatens the

diminution of a basic constitutional right and civil

liberty.” Id. §7901(a)(6).

15

b. Congress enacted the PLCAA’s purposes into

the statute itself. The Act’s primary purpose is

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) (emphasis added). A related

purpose is “[t]o prevent the use of such lawsuits to

impose unreasonable burdens on interstate and

foreign commerce.” Id. §7901(b)(4) (emphasis added).

Congress intended the PLCAA “[t]o preserve a

citizen’s access to a supply of firearms and

ammunition for all lawful purposes.” Id. §7901(b)(2).

And this extended to protection against incursions on

the right to bear arms by the States, as another

purpose is “[t]o guarantee a citizen’s rights, privileges,

and immunities, as applied to the States, under

[section 5 of the] Fourteenth Amendment[.]” Id.

§7901(b)(3).

c. The PLCAA’s legislative history confirms

congressional intent to preserve Second Amendment

rights by ensuring that firearms manufacturers were

not bankrupted by litigation holding them responsible

for third parties’ misuse of their products. One of the

bill’s authors, Congressman Stearns, called the

PLCAA’s protection against suits like those Section

898 authorizes an “obvious idea,” explaining,

16

After all, would we hold a car company

responsible if a driver gets drunk or reckless

and hits somebody with a vehicle? Of course

not. This is the United States of America

where we are responsible for our own actions;

but yet these frivolous lawsuits against a

vital, legitimate and perfectly lawful

industry have continued unabated for the

last several years in the simple hope of

bankrupting this industry.

151 Cong. Rec. H8987, H8998 (daily ed. Oct. 20, 2005)

(statement of Rep. Stearns). Addressing the costs of

the type of litigation that Section 898 enables, House

Judiciary Committee Chairman Sensenbrenner noted

that “[t]he legal fees alone are enough to bankrupt the

industry.” Id. at H8993 (statement of Rep.

Sensenbrenner quoting a Washington Post article).

Then-Congressman Pence agreed, explaining, “By

passing this bill, Congress will prevent one or a few

State courts from bankrupting the national firearms

industry with baseless lawsuits.” Id. at H8999

(statement of Rep. Pence).

President George W. Bush expressed the same

understanding as he prepared to sign the PLCAA into

law:

Our laws should punish criminals who use

guns to commit crimes, not law-abiding

manufacturers of lawful products.

Presidential Statement on House of Representatives

Passage of the Proposed “Protection of Lawful

Commerce in Arms Act,” 41 Weekly Comp. Pres. Doc.

1566 (Oct. 20, 2005).

17

C.

Review Is Warranted Because The Second

Circuit’s Decision Renders The PLCAA

Meaningless And Thwarts The Will Of

Congress.

This Court’s review is needed because the Second

Circuit decision thwarts the will of Congress

expressed in the PLCAA, and provides a roadmap to

other states and localities that wish to impose the very

liability that the PLCAA “prohibit[s].” 15 U.S.C.

§7901(b)(1). As the petition points out (at 18-22), the

decision below conflicts with holdings of the Ninth

Circuit and the District of Columbia Court of Appeals.

And as we explain, the importance of the issue

presented—the conflict between federal legislation

designed to protect a constitutional right, and state

legislation designed to make the right’s exercise

practically impossible—underscores the urgent need

for this Court’s prompt review. The template provided

by the decision below should be eliminated before it

spreads to other states and other courts.

1.

The New York Statute Squarely Aims to

Flout the Second Amendment and

Congressional Intent.

Section 898 was intentionally designed to nullify

the PLCAA and gradually (or not so gradually)

bankrupt every manufacturer or seller of firearms in

New York State. As the petition points out (at 10-11),

upon signing Section 898, Governor Cuomo announced

that the new law would “right the wrong” supposedly

embodied by the PLCAA, by “reinstat[ing] the public

nuisance liability for gun manufacturers.” Gov.

Andrew M. Cuomo, Governor Cuomo Signs First-in-

18

the-Nation Gun Violence Disaster Emergency to Build

a Safer New York, at 35:00-38:15, YouTube (July 6,

2021). And the substance of Section 898 largely

reproduced the text of the very New York general

nuisance statute, N.Y. Penal L. §240.45, that had been

held preempted by the PLCAA in City of New York v.

Beretta. See Pet.11-12 (comparing the two statutory

texts). Just as this Court observed in another context,

the intentional “mulcting in damages of [Petitioners]

will be solely *** to punish [them] for” manufacturing

lawful weapons of the sort protected by the Second

Amendment. Barrows v. Jackson, 346 U.S. 249, 258

(1953). That is not permissible under the Second

Amendment or the PLCAA.

2.

The PLCAA Expressly Preempts Section

898.

When interpreting a statute, this Court begins

with the statute’s text. Jimenez v. Quarterman, 555

U.S. 113, 118 (2009). As part of that task, this Court

looks to “the specific context in which that language is

used, and the broader context of the statute as a

whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997). In particular, “[t]he maxim noscitur a sociis,

that a word is known by the company it keeps, while

not an inescapable rule, is often wisely applied where

a word is capable of many meanings in order to avoid

the giving of unintended breadth to the Acts of

Congress.” Jarecki v. G.D. Searle & Co., 367 U.S. 303,

307 (1961); see also, e.g., McDonnell v. United States,

579 U.S. 550, 569 (2016). The statute, of course, must

be construed in light of its structure and purpose, e.g.,

Abramski v. United States, 573 U.S. 169, 179 (2014),

19

especially when that purpose was enacted into law (as

it was here).

The court of appeals believed that the narrow

predicate exception to PLCAA’s protections applies

here. But it does not.

a. As this Court observed, the predicate exception

reaches only “knowing violations of gun laws.” Smith

& Wesson, 605 U.S. at 288. And the statute gives

detailed examples of the types of laws that come

within the exception: false entries in “any record

required to be kept under Federal or State law” for the

relevant firearm or ammunition, 15 U.S.C.

§7903(5)(A)(iii)(I); false statements “with respect to

any fact material to the lawfulness of the sale or other

disposition,” ibid.; or involvement in the disposition of

a firearm or ammunition to someone the manufacturer

or seller “kn[ew], or ha[d] reasonable cause to believe”

was prohibited from possessing the sold product under

federal law, id. §7903(5)(A)(iii)(II). Those examples

indicate that the laws that fall within the exception set

out concrete, specific duties related to firearms.

In contrast, Section 898 duplicates the commonlaw public nuisance standard and recites a negligence

standard in a provision limited to “gun industry

members.” But Section 898—which hinges liability on

conduct that is “unreasonable under all the

circumstances,” §898-b(1) (Pet.App.81) or not

“reasonable,” §898-b(2) (Pet.App.81)—shares none of

the characteristics of the examples enumerated in 15

U.S.C. §7903(5)(A)(iii), and defining characteristics

with the actions the PLCAA states it was designed to

prohibit. Not just the “basic theory,” but the putative

20

predicate firearms statute itself seeks to impose no

more than a “reasonable care” standard that, this

Court has recognized, “runs straight into PLCAA’s

general prohibition.” Smith & Wesson, 605 U.S. at 287.

Moreover, the predicate exception is limited to

cases where the defendant “knowingly violated” a

statute “applicable to the sale or marketing” of a

firearm or ammunition. 15 U.S.C. §7903(5)(A)(iii). It is

impossible to know in advance, however, what conduct

will violate an unknown and unknowable common-law

standard

like

Section

898’s

standards

of

reasonableness. In sharp contrast to the federal

statutes identified in the exception, standards of

“reasonable” conduct are necessarily post hoc, and

necessarily depend on the judgment—or whim—of a

judge or jury after the fact. Reasonableness is a

standard of simple negligence, and “knowing

negligence” makes no sense.

This Court has recognized the PLCAA’s “core

purpose”: “Congress enacted the statute to halt a

flurry of lawsuits attempting to make gun

manufacturers pay for the downstream harms

resulting from misuse of their products.” Smith &

Wesson, 605 U.S. at 298. But a “flurry of lawsuits”

inevitably would ensue if the Court declines to grant

review and reverse the decision of the court of appeals

in this case. Every state and locality that is hostile to

the Second Amendment—and there are many—can

and will enact statutes and ordinances just like

Section 898, codifying broad and unpredictable

common-law reasonableness standards of liability in

statutes restricted to participants in the firearm

industry. Many already have. See p. 25 below. Indeed,

21

this could be as simple as duplicating an existing

codification of nuisance law in a new statute restricted

to “gun industry members”—which is largely what

New York did here.

An exception to a statutory command “cannot in

reason be construed as allowing a common law right,

the continued existence of which would be absolutely

inconsistent with the provisions of the act.” AT&T

Mobility LLC v. Concepcion, 563 U.S. 333, 343 (2011)

(cleaned up). Simply put, “the act cannot be held to

destroy itself.” Ibid.

b. The legislative history confirms the narrow

scope of the predicate exception. For example, Senator

Craig explained the exception in these terms:

[I]f in any way they violate State or Federal

law or alter or fail to keep records that are

appropriate as it relates to their inventories,

they are in violation of law. *** If they have

violated existing law, they violated the law,

and I am referring to the Federal firearms

laws that govern a licensed firearm dealer

and that govern our manufacturers today.

151 Cong. Rec. S9087, S9089 (daily ed. July 27, 2005,

bk. II) (statement of Sen. Craig). And Senator Sessions

elucidated the problem the PLCAA addressed in these

terms:

You

followed

the

complex

Federal

regulations that have a huge host of

requirements. You followed the State

legislature’s requirements, often very

complex, also, to the T, and it comes in the

hand of a criminal, and they use it for a

22

crime. Now the manufacturer and the seller

are liable.

151 Cong. Rec. S8897, S8911 (daily ed. July 26, 2005)

(statement of Sen. Sessions).

The PLCAA’s opponents recognized that the

predicate exception “does not protect cases against

negligent gun sellers or manufacturers” outside the

separate enumerated exceptions for negligent

entrustment and negligence per se. H.R. Rep. No. 109124, at 145 (2005) (dissenting views). And they

recognized (and complained) that “the types of cases

that would be barred” by the PLCAA include those for

“public nuisance.” Id. at 146.

But that is exactly the type of case authorized by

Section 898’s reasonableness standards, which impose

negligence liability on firearm manufacturers and

sellers with respect to their sales and distribution

practices. Congress defeated proposed amendments to

the PLCAA that would have permitted actions for

general negligence. See, e.g., 151 Cong. Rec. S9323,

S9386-S9387 (daily ed. July 29, 2005) (statement of

Sen. Reed) (proposing amendment that would have

imposed liability for general negligence); H.R. Rep. No.

109-124, at 115-119 (2005) (general negligence

amendment proposed and defeated in House). The

successful opponents contended that such an

amendment “guts the bill” and “does exactly the

opposite of what the bill is intended to do.” 151 Cong.

Rec. S9387 (daily ed. July 29, 2005) (statement of Sen.

Hutchison).

c. Construing the predicate exception to

encompass any statute that (1) codifies a common-law

23

standard like reasonableness, but also (2) specifically

targets firearms manufacturers and sellers “would

swallow most of the rule.” Smith & Wesson, 605 U.S.

at 299. The Court rejected such a self-defeating

construction in Smith & Wesson. And it should grant

review to forestall the spread of the equally selfdefeating construction adopted below.

3.

Section 898 Is Preempted Because It

Presents

an

Obstacle

to

the

Accomplishment of the Purposes of the

PLCAA.

As explained above, the express, enacted

purposes of the PLCAA require construing the

predicate exception to exclude Section 898’s

codifications of malleable common-law standards.

Even if Section 898 could somehow escape express

preemption—and it can’t—the New York statute

would be impliedly preempted because it “stands as an

obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.” Arizona, 567

U.S. at 399-400 (quoting Hines, 312 U.S. at 67).

As explained above, the express purpose of the

PLCAA is to prevent lawsuits, like this one, that apply

nebulous common-law standards of conduct post hoc

(as opposed to regulatory provisions that set out

exactly what firearms industry members must do to

comply). Just as the Constitution elevates the right of

armed self-defense over the risks that some will

misuse the arms the right protects, the PLCAA places

the right of reasonable access to arms over any State’s

preference for extended and attenuated theories of

liability that would make firearms manufacturers and

24

sellers pay for crimes committed with their lawful, and

lawfully sold, products. Nothing in the predicate

exception “suggests an intent to preserve state-law

rules that stand as an obstacle to the accomplishment

of the [PLCAA’s] objectives.” Concepcion, 563 U.S. at

343.

Under our federalism, and the Supremacy Clause,

New York’s policy views must yield to those Congress

made. This Court should grant review to give effect to

that constitutional balance.

D. The Exceptional Importance Of The

Question Presented Underscores The Need

For This Court’s Review.

Congress enacted the PLCAA because it

recognized the exceptional importance of protecting

citizens’ access to firearms, and the consequent

importance of preventing States and courts from

bankrupting the firearms industry by adopting and

enforcing vague and sweeping theories of liability. But

the decision below strains to permit what the PLCAA

was designed to prohibit: “causes of action” against the

firearms industry “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). It does so by ignoring the examples

Congress provided to narrow the predicate exception,

and allows an action to go forward based on a

reasonableness standard of conduct that no one could

“knowingly violate[ ]” (as the exception requires), id.

§7903(5)(A)(iii), because the precise conduct needed to

25

comply is not spelled out anywhere, but can be

determined only after the fact.

The present case is exceptionally important

because, in the Second Circuit—and soon, quite

possibly, elsewhere—the PLCAA becomes a dead

letter whenever a legislative body follows the two

simple steps approved below. Every common-law

theory attacked in the legislative history—any of the

“theories without foundation in hundreds of years of

the common law and jurisprudence of the United

States,” 15 U.S.C. §7901(a)(7)—can be revived by the

simple expedient of (1) codifying the foundationless

common-law theory (2) in a statute targeting the

firearms industry. Nine other states have already

followed New York’s lead. See Pet.30-31 (citing Cal.

Civ. Code §3273.51; Colo. Rev. Stat. §§6-27-104, -105;

10 Del. Code §3930; Haw. Rev. Stat. §§134-102, -103;

815 Ill. Comp. Stat. 505/2DDDD; N.J. Stat. Ann.

§2C:58-35; Md. Code Ann., Cts. & Jud. Proc. §§3-2502,

-2503; Wash. Rev. Code §7.48.330; 2025 Conn. Pub.

Act. No. 25-43). And others may soon follow. See

Pet.31 (citing H.B. 21, 2026 Gen. Assemb., Reg. Sess.

(Va. 2026), https://perma.cc/QU5H-HWB4; H.B. 2672,

194 Gen. Ct., Reg. Sess. (Mass. 2025)).

If the Second Circuit’s reasoning is applied to

those statutes, the predicate exception will encompass

multiple theories holding firearms makers and sellers

“liable for the harm caused by those who criminally or

unlawfully misuse firearm products or ammunition

products that function as designed and intended,” 15

U.S.C. §7901(a)(5), despite Congress’ contrary finding.

26

That result will “impos[e] liability on an entire

industry for harm that is solely caused by others,” the

exact “abuse of the legal system” and “diminution of a

basic constitutional right and civil liberty” that the

PLCAA condemns. Id. §7901(a)(6). The consequent

“expansion of liability w[ill] constitute a deprivation of

the rights, privileges, and immunities guaranteed to a

citizen of the United States under the Fourteenth

Amendment to the United States Constitution.” Id.

§7901(a)(7).

The importance of the question presented reaches

beyond the PLCAA, however, because the decision

below approaches the statute as a puzzle to be solved

in order to deprive the law of practical effect. Thus, the

Second Circuit treated the narrow exceptions to the

PLCAA as if they necessarily contain the seeds of

statute’s destruction. But that statutory construction

defies the will of Congress, the exact opposite of what

statutory interpretation should do. If it remains in

place, the Second Circuit’s decision will encourage

additional judicial efforts to nullify the products of the

democratic process.

The Court should not acquiesce in that

deleterious result. This Court’s review is urgently

needed.

CONCLUSION

For the foregoing reasons, as well as those stated

in the petition, the petition for a writ of certiorari

should be granted.

27

Respectfully submitted,

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

cbartolomucci@schaerr-jaffe.com

DONALD M. FALK

SCHAERR | JAFFE LLP

One Embarcadero Center

Suite 1200

San Francisco, CA 94111

(415) 562-4942

Counsel for Amici Curiae

MARCH 30, 2026