Amicus Curiae Brief — Daniel Defense, LLC, et al., Petitioners v. Karen Lowy, Individually and as Parent and Next Friend of N. T., et al.

No. 26-60

In the Supreme Court of the United States

DANIEL DEFENSE, LLC, ET AL.,

Petitioners,

V.

KAREN LOWY, ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE

STATE OF WEST VIRGINIA

AND 21 OTHER STATES

IN SUPPORT OF PETITIONERS

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

CALEB B. DAVID

Deputy Solicitor General

MATTHEW K. NIU

Caldwell Fellow

Counsel for Amicus Curiae State of West Virginia

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae.................... 1

Summary of the Argument ................................................. 3

Reasons for Granting the Petition ..................................... 4

The Fourth Circuit and others have blunted

the traceability test ..................................................... 5

The traceability error inflicts constitutional

and statutory harms that a proper standing

rule would prevent .................................................... 14

Conclusion ........................................................................... 22

II

TABLE OF AUTHORITIES

Page(s)

Cases

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ....................................................... 18

Ateres Bais Yaakov Academ. of Rockland

v. Town of Clarkston,

88 F.4th 344 (2d Cir. 2023) ........................................... 11

Bennett v. Spear,

520 U.S. 154 (1997) ........................................... 1, 6, 9, 13

Berrocal v. Att’y Gen.,

136 F.4th 1043 (11th Cir. 2025) ................................... 12

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) ....................................................... 21

California v. Texas,

593 U.S. 659 (2021) ..................................................... 6, 8

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) ......................................................... 2

Cent. Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n of N.Y.,

447 U.S. 557 (1980) ....................................................... 15

Changizi v. HHS,

82 F.4th 492 (6th Cir. 2023) ......................................... 12

City of N.Y. v. Beretta USA Corp.,

524 F.3d 384 (2d Cir. 2008) .......................................... 20

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ................................................... 2, 14

Dep’t of Educ. v. Brown,

600 U.S. 551 (2023) ......................................................... 1

III

Dep’t of Commerce v. New York,

588 U.S. 752 (2019) ....................................... 3, 6, 7, 8, 11

District of Columbia v. Beretta USA Corp.,

940 A.2d 163 (D.C. 2008) .............................................. 20

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................................. 15, 16

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ......................................................... 6

Ileto v. Glock, Inc.,

565 F.3d 1126 (9th Cir. 2009) ....................................... 20

Inclusive Cmtys. Project v. Dep’t of

Treasury,

946 F.3d 649 (5th Cir. 2019) ......................................... 12

J.F. by & through S.F. v. Carnival Corp.,

141 F.4th 1164 (11th Cir. 2025) ................................... 13

James v. Meow Media, Inc.,

300 F.3d 683 (6th Cir. 2002) ......................................... 13

Junior Sports Mags. Inc. v. Bonta,

80 F.4th 1109 (9th Cir. 2023) ....................................... 19

Lawson v. Beretta USA Corp.,

556 U.S. 1104 (2009) ..................................................... 20

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ....................................................... 18

Luis v. United States,

578 U.S. 5 (2016) ........................................................... 16

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ..................................................... 5, 9

McDonald v. City of Chi.,

561 U.S. 742 (2010) ....................................................... 17

IV

McLaughlin v. United States,

476 U.S. 16 (1986) ......................................................... 18

Murthy v. Missouri,

603 U.S. 43 (2024) ................................................... 6, 8, 9

N.Y. State Rifle & Pistol Ass’n, Inc. v.

Bruen,

597 U.S. 1 (2022) ..................................................... 16, 17

Nat’l Rifle Ass’n of Am. v. Vullo,

602 U.S. 175 (2024) ................................................. 14, 19

Ohio Stands Up! v. U.S. Dep’t of Health &

Hum. Servs.,

No. 21-3995, 2022 WL 1576929

(6th Cir. May 19, 2022) ................................................. 12

Rouse v. Fader,

171 F.4th 272 (4th Cir. 2026) ................................. 11, 12

Rubin v. Coors Brewing Co.,

514 U.S. 476 (1995) ....................................................... 18

Safari Club Int’l v. Bonta,

No. 23-15199, 2023 WL 6178500

(9th Cir. Sept. 22, 2023)................................................ 19

Sheppheard v. Morrisey,

143 F.4th 232 (4th Cir. 2025) ................................... 1, 11

Simon v. E. Ky. Welfare Rts. Org.,

426 U.S. 26 (1976) ..................................................... 7, 10

Smith & Wesson Brands, Inc. v. Estados

Unidos Mexicanos,

605 U.S. 280 (2025) ....................................................... 20

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ....................................................... 18

V

Staples v. United States,

511 U.S. 600 (1994) ....................................................... 15

United States v. Texas,

599 U.S. 670 (2023) ..................................................... 2, 4

Va. State Bd. of Pharm. v. Va. Citizens

Consumer Council, Inc.,

425 U.S. 748 (1976) ....................................................... 14

Valley Forge Christian Coll. v. Ams.

United for Separation of Church &

State, Inc.,

454 U.S. 464 (1982) ......................................................... 4

Whitmore v. Arkansas,

495 U.S. 149 (1990) ......................................................... 5

Wolford v. Lopez,

146 S. Ct. 2032 (2026) ................................................... 16

Wyeth v. Levine,

555 U.S. 555 (2009) ......................................................... 1

Constitutional Provisions

U.S. CONST. amend. I ......................................................... 14

U.S. CONST. amend. II ....................................................... 15

U.S. CONST. art. III, § 2 ....................................................... 5

Statutes

15 U.S.C. § 7901 ..................................... 11, 15, 16, 19, 20, 21

15 U.S.C. § 7902 .................................................................. 20

15 U.S.C. § 7903 .................................................................. 20

VI

Rule

S. CT. R. 37.2 ......................................................................... 1

Other Authorities

About,

U.S. DEP’T OF WAR,

https://tinyurl.com/4ptmey7r

(last accessed Aug. 10, 2026) ....................................... 17

Dan T. Coenen,

Freedom of Speech and the Criminal

Law,

97 B.U. L. REV. 1533 (2017) ......................................... 15

David Yamane et al.,

Targeted Advertising: Documenting

the Emergence of Gun Culture 2.0 in

Guns Magazine, 1955-2019,

6 HUMANS. & SOC. SCIS. COMMC’NS, no.

61, Apr. 2020, at 1 ......................................................... 17

E. Gregory Wallace,

“Assault Weapon” Myths,

43 S. ILL. UNIV. L.J. 193 (2018)................................... 17

Hillel Levin & Timothy Lytton,

The Contours of Gun Industry

Immunity: Separation of Powers,

Federalism, and the Second

Amendment,

75 FLA. L. REV. 833 (2023) ........................................... 19

VII

Howard Beales et al.,

The Efficient Regulation of Consumer

Information,

24 J.L. & ECON. 491 (1981) .......................................... 16

Josh Blackman,

The 1st Amendment, 2nd Amendment,

and 3D Printed Guns,

81 TENN. L. REV. 479 (2014) ........................................ 16

Kerry Abrams & Brandon L. Garrett,

Cumulative Constitutional Rights,

97 B.U. L. REV. 1309 (2017) ......................................... 15

Michael Coenen,

Combining Constitutional Clauses,

164 U. PA. L. REV. 1067 (2016) .................................... 15

Philip Cook, et al.,

Underground Gun Markets,

117 ECON. J. F558 (2007) ............................................. 16

Richard C. Ausness,

Gun Control Through Tort Law,

68 FLA. L. REV. F. 101 (2017) ................................ 18, 20

Scott R. Thomas & Mystica M. Alexander,

Suing Guns Out of Existence?,

75 WASH. & LEE L. REV. ONLINE 175

(2019) .............................................................................. 21

Timothy D. Lytton,

Using Tort Litigation to Enhance

Regulatory Policy Making: Evaluating

Climate-Change Litigation in Light of

Lessons from Gun-Industry and

Clergy-Sexual-Abuse Lawsuits,

86 TEX. L. REV. 1837 (2008)......................................... 18

1

INTRODUCTION

AND INTERESTS OF AMICI CURIAE*

“This case illustrates that tragic facts make bad law.”

Wyeth v. Levine, 555 U.S. 555, 604 (2009) (Alito, J.,

dissenting). A shooter attacked a school and then took his

own life. The victims sought justice. But instead of

looking to the shooter’s estate, they sued every company

that made or sold any firearm or component that the

shooter had ever bought. Breaking from its own

precedent, see, e.g., Sheppheard v. Morrisey, 143 F.4th

232 (4th Cir. 2025), the Fourth Circuit then held that gun

advertisements had the “predictable effect” of inciting the

attacker, giving Respondents standing to sue. It did so

even though no one alleged that the shooter had ever seen

any ad from any Petitioner—dismissing that essential link

in the chain of traceability as nothing but an improper

“‘magic words’ pleading requirement.” App.36.

The decision below turns “the irreducible

constitutional minimum of standing” into a speed bump.

Dep’t of Educ. v. Brown, 600 U.S. 551, 561 (2023) (cleaned

up). To plead standing, Respondents must show how their

injuries are fairly traceable to Petitioners’ actions. And

when a claim implicates an intervening third party—like

the shooter here—the defendants’ conduct must have had

a “determinative or coercive effect” on that party.

Bennett v. Spear, 520 U.S. 154, 169 (1997). Speculative or

merely foreseeable effects thus aren’t enough.

Altogether, these limits keep federal courts focused on

redressing concrete injuries traceable to the defendants

before them, rather than reordering an industry in a way

Congress decided not to authorize.

Under Supreme Court Rule 37.2, amici timely notified counsel of

record of their intent to file this brief.

*

2

In assuming that a plaintiff’s injuries are traceable to

anyone who touched a tragic event, the Fourth Circuit

disparages standing’s limits. The lower court mistakenly

thought this Court has rejected a “more stringent”

approach to standing. App.29. Quite the opposite: the

Court has repeatedly “decline[d] to abandon [its] usual

reluctance to endorse standing theories that rest on

speculation about the decisions of independent actors.”

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013).

And by going its own way, the Fourth Circuit has done

nothing but deepen a circuit split and cause confusion in

its own circuit.

Bad law is bad enough, but the Fourth Circuit’s test

does still more damage. Lax standards like the Fourth

Circuit’s subject amici States’ citizens to ever more

litigation in other States; that litigation in turn works as

de facto extraterritorial regulation. These suits punish

activity the States have chosen to allow—here, gun

manufacturing, advertising, and purchase—forcing instate businesses to answer in distant courts for conduct

lawful where it occurred. The result is legislating by

verdict, displacing the States’ own choices and producing

a “government by lawsuit” the Constitution does not

create. United States v. Texas, 599 U.S. 670, 704 (2023)

(Gorsuch, J., concurring) (cleaned up).

The victims here deserve justice, and the shooter’s

choice to take his own life unfortunately makes it harder

to seek that justice from the person who bears the blame.

But “[t]here is a cost to yielding to the desire to correct

the extreme case, rather than adhering to the legal

principle.” Caperton v. A.T. Massey Coal Co., 556 U.S.

868, 899 (2009) (Roberts, C.J., dissenting). Especially in a

case like this one, where fundamental First and Second

Amendment rights are in play, courts must be careful not

3

to allow sympathies to warp essential doctrines. Because

the Fourth Circuit didn’t show that care here, the Court

should grant the petition and reverse.

SUMMARY OF THE ARGUMENT

I. In third-party liability cases, plaintiffs must show a

defendant’s conduct had a “determinative or coercive

effect” on the offending third party. But the Fourth

Circuit has mangled that test by misunderstanding

Department of Commerce v. New York, 588 U.S. 752

(2019), to lower the bar. Department of Commerce did not

“disavow[]” the Court’s long line of multiple-actor

standing precedents. Contra App.29.

What’s done is done. Now, in the Fourth Circuit, any

“predictable effect” on the third party suffices to show

traceability for standing. That outlier decision not only

conflicts with other circuits but also causes confusion

within its own.

The Court need look no further than the facts of this

case to see how this misguided rule will play out in

practice. The majority here found a causal connection

between gunmakers’ advertisements and an individual

opening fire on a school—despite no allegation that the

shooter ever saw an ad. The majority’s lax standard thus

allows victims of crimes to reach beyond the criminal

perpetrator to find any firearm manufacturer liable for

intervening third-party misuse.

The Court should grant the petition to stop these

intolerable outcomes and restore order to standing cases

involving third-party acts.

II. Aside from offending Article III, the Fourth

Circuit’s decision raises other constitutional and statutory

4

problems that follow directly from abandoning any

meaningful traceability test.

The constitutional problems come first. Because the

decision below asks only whether harm was predictable, it

exposes manufacturers to suit for truthful, nonmisleading advertising that no one alleges the shooter

saw. That outcome produces First Amendment problems

by chilling speech on nothing more than a forecast of how

strangers might react to it. The same forecast-based

liability burdens access to lawful firearms, undermining

the Second Amendment’s protections. Indeed, the Fourth

Circuit’s decision treats interest in firearms as evidence of

malicious intent, as interest in the lawful exercise of a

constitutional right is itself suspect.

On the statutory side, the Protection of Lawful

Commerce in Arms Act forecloses Respondents’ suit

because Congress decided that manufacturers should not

be liable for the unlawful misuse of their firearms. Yet the

Fourth Circuit’s standard allows a case to go ahead on that

very same theory of misuse.

The Court should grant the petition to ensure respect

for congressional intent and constitutional commands.

REASONS FOR GRANTING THE PETITION

Article III guards the courthouse doors, turning away

matters the Constitution entrusts to the Executive or

Legislature. “The principle of Article III standing is built

on a single basic idea—the idea of separation of powers.”

Texas, 599 U.S. at 675 (cleaned up). “Standing doctrine

helps safeguard the Judiciary’s proper—and properly

limited—role in our constitutional system.” Id. at 675-76.

Loose constructions of the standing doctrine, on the other

hand, reduce courts to “forums for the ventilation of public

grievances.” Valley Forge Christian Coll. v. Ams. United

5

for Separation of Church & State, Inc., 454 U.S. 464, 473

(1982).

This Court’s intervention is necessary to ensure that

Article III can continue to perform these important

functions effectively. The Fourth Circuit mangled the

traceability test, deepening a split. The stakes are high,

too. Weakening Article III’s standing inquiry invites

mischief: parties can press dubious claims and, once

they’re in the door, rely on nothing more than defendants’

litigation costs and reputational damage to force

settlements. And because Respondents look to penalize

speech and restrict arms, constitutional alarms are

sounding.

The Court should grant certiorari and confirm again

that standing requires a coercive or determinative effect

when a third party is involved.

The Fourth Circuit and others have blunted the

traceability test.

Federal courts may only hear and resolve “Cases” and

“Controversies.” U.S. CONST. art. III, § 2. To that end,

the standing doctrine “serves to identify those disputes

which are appropriately resolved through the judicial

process.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).

The “irreducible constitutional minimum of standing”

requires a plaintiff to show an injury in fact, “fairly

traceable” to the defendant’s conduct, and likely to be

redressed by the relief sought. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992) (cleaned up). If a

plaintiff does not establish all three elements, then she

cannot “invok[e] federal jurisdiction.” Id. at 561.

1. The standing doctrine’s traceability prong is at the

center of this dispute. “The whole purpose of the

6

traceability requirement is to ensure that in fact, the

asserted injury was the consequence of the defendants’

actions, rather than of the independent action of a third

party.” Murthy v. Missouri, 603 U.S. 43, 68 n.8 (2024)

(cleaned up). So standing is “substantially more difficult

to establish” “where a causal relation between injury and

challenged action depends upon the decision of an

independent third party.” California v. Texas, 593 U.S.

659, 675 (2021) (cleaned up). While “it does not suffice if

the injury complained of is th[e] result [of]

the independent action of some third party not before the

court,” a defendant’s actions do not have to be “the very

last step in the chain of causation.” Bennett, 520 U.S. at

169 (cleaned up). Rather, a plaintiff can establish

traceability by showing her injury was “produced by

determinative or coercive effect upon the action of

someone else.” Id.

The Court’s “determinative or coercive effect” test for

traceability distinguishes independent third-party actions

from conduct sufficient to form a causal connection. If a

third party’s action is truly “independent,” then a plaintiff

can’t trace that action to anyone other than the

independent third party. But if the defendant committed

some not “too distant” conduct or action that caused a

third party to harm the plaintiff, then the third party’s

action can be traced to the defendant. See FDA v. All. for

Hippocratic Med., 602 U.S. 367, 383 (2024) (explaining

that a third party’s “action [can be] so far removed from

its distant (even if predictable) ripple effects that the

plaintiffs cannot establish Article III standing”).

Lower courts routinely applied that test until this

Court first used the term “predictable effect” when

discussing traceability in Department of Commerce v.

New York, 588 U.S. 752 (2019). There, the Secretary of

7

Commerce announced the Department would reinstate a

citizenship question on the 2020 census questionnaire. Id.

at 762-63. Several States and advocacy groups sued,

arguing that the question would deter participation among

noncitizen households, leading to an undercount and

affecting political representation and federal funding

allocations. Id. at 764, 767. At trial, the evidence

“established that noncitizen households have historically

responded to the census at lower rates than other groups”

and that “the discrepancy is likely attributable at least in

part to noncitizens’ reluctance to answer a citizenship

question.” Id. at 768. Following the evidence, the district

court concluded that reinstating the citizenship question

would cause undercounting by as much as 5.8%—

substantially higher than the 2% threshold the States

proved would lead to federal funding losses. Id. at 767.

This Court thus rejected the Government’s argument that

the plaintiffs’ standing theory relied on “mere speculation

about the decisions of third parties,” and found that it

“relie[d] instead on the predictable effect of Government

action on the decisions of third parties.” Id. at 768.

Department of Commerce didn’t announce a new

standard. It used the term “predictable effect” to refute

the argument that the trial court was “mere[ly]

speculat[ing] about” third-party decisions. Dep’t of Com.,

588 U.S. at 768. After all, “unadorned speculation” has

never been enough to establish traceability. Simon v. E.

Ky. Welfare Rts. Org., 426 U.S. 26, 44 (1976). Of course,

Department of Commerce was a pre-enforcement action;

some level of speculation about what will happen is always

necessary in that context. But the Court was satisfied that

the plaintiffs “met their burden of showing that third

parties will likely react in predictable ways” to the

defendant’s action. Dep’t of Com., 588 U.S. at 768.

8

Since Department of Commerce, the Court has

repeatedly confirmed that the standard is still the

standard, and “predictability” is a tool to ward off

speculative causal connections, chiefly in cases involving

government actions. It has repeatedly referenced this

language in affirming that plaintiffs cannot build standing

on attenuated causal chains. See California, 593 U.S. at

678; Murthy, 603 U.S. at 72. In Diamond Alternative

Energy v. EPA, for example, the Court explained how

“[c]ourts must distinguish the ‘predictable’ from the

‘speculative’ effects of government action or judicial relief

on third parties.” 606 U.S. 100, 112 (2025) (cleaned up).

Courts make that distinction by “conclud[ing] that third

parties will likely react to the government regulation (or

judicial relief) in predictable ways that will likely cause (or

redress) the plaintiff’s injury.” Id. (cleaned up).

2. Even though the Court did not create a new

standard in Department of Commerce, confusion followed.

Some circuit courts, including the lower court here, have

redeployed the Court’s “predictable effect” language to

create an easier path to standing (even outside the

government-action context).

The majority here, for example, adopted a lesser

alternative to the “determinative or coercive effect”

standard. It conflated statements about third parties

“likely react[ing] in predictable ways” and Respondents’

“relatively modest” burden. App.30 (cleaned up). A selfcontradictory traceability test appeared: An injury is

fairly traceable to a defendant’s conduct if the defendant’s

actions “had a predictable effect … on the decisions of

third parties, or when the injury [was] produced by

determinative or coercive effect upon the action of

someone else.” App.30 (cleaned up). The majority didn’t

explain when a “predictable effect” was enough or when

9

the more stringent “determinative or coercive effect”

standard should apply.

Instead, without analyzing

Petitioners’ advertisements’ alleged effects on the shooter

himself, the majority concluded that a “predictable effect”

sufficed. App.32-34. And the majority found that

Respondents cleared the “determinative or coercive

effect” bar, watering that standard down to mean that a

private manufacturer could “coerce[]” anyone who might

encounter a gun ad. App.34-37 (cleaned up).

The Fourth Circuit so diluted the traceability inquiry

that it barely resembled this Court’s precedents.

For starters, the majority downgraded Respondents’

burden, declaring it “relatively modest,” “particularly so

as it relates to traceability.” App.28 (cleaned up). That

sentiment divorces this Court’s words from their context.

A plaintiff’s standing burden is “relatively modest at [the

motion-to-dismiss] stage of the litigation,” Bennett, 520

U.S. at 171—meaning that it requires a lesser “degree of

evidence” than would be necessary at “the successive

stages of litigation,” Lujan, 504 U.S. at 561. But even “[a]t

the pleading stage,” id., a plaintiff must allege facts

showing an injury “fairly traceable to the challenged

action of the defendant, and not the result of the

independent action of some third party not before the

court,” id. at 560 (cleaned up). And “standing is not

dispensed in gross”; “[t]hat is, plaintiffs must demonstrate

standing for each claim that they press against each

defendant.” Murthy, 603 U.S. at 61 (cleaned up). So less

substantial evidence might suffice at the pleading stage,

but the standing elements stay constant. Respondents

here had to at least allege facts showing traceability as to

each defendant. They didn’t, and the majority didn’t

require them to.

10

Beyond the burden, the majority took the bite out of

the threshold traceability inquiry by unhitching the

predictability aspect from the coercive effect. The

majority interpreted “predictable effect” to mean that

any conceivable effect a defendant’s actions could have on

a third-party tortfeasor—or, as here, an attempted

murderer—is enough to satisfy the standing doctrine’s

traceability prong. That’s wrong, as the only limit on

standing then becomes one’s imagination. By decoupling

predictability and coerciveness, the lower court defeated

the purpose of traceability—ensuring that Petitioners

caused Respondents’ injuries.

What’s more, the majority put the bar on the floor by

allowing Respondents to rely on generalized speculation

about an entire industry without factual allegations

drawing any lines from the criminal tortfeasor to the

manufacturers.

The Court has never endorsed

“unadorned speculation … to invoke the federal judicial

power.” Simon, 426 U.S. at 44. So generalized pleading

about “troubled young men” who “regularly commit mass

shootings” won’t do, either. App.33.

By the Fourth Circuit’s standard, a plaintiff could just

as easily have sued a Hollywood producer for creating a

film depicting violent AR-15-related scenes that

“prompted” this violence. A video-game maker could

similarly bear the brunt by “simulating” a shooting

environment with these kinds of weapons. Or a search

engine like Google might face liability for providing the

relevant information or feeding the advertisements to the

perpetrator. And all of them could be liable even if there’s

no suggestion that the shooter ever interacted with any of

the products in question. No precedent for this kind of

standard exists despite “hundreds of years of the common

11

law and jurisprudence of the United States.” 15 U.S.C.

§ 7901(a)(7).

And the new “predictable effect” standard is sowing

confusion within the Fourth Circuit. Shortly before the

decision in this case, that court decided Sheppheard v.

Morrisey, 143 F.4th 232 (4th Cir. 2025). There, the court

got the standard right: “When multiple actors are

involved, a plaintiff can establish causation only if the

defendant’s conduct had a ‘determinative or coercive

effect upon the action of someone else.’” Id. at 243

(cleaned up). “Predictable” appears nowhere in the

decision. But after the Fourth Circuit issued its decision

here, the court has carried the lower standard forward—

treating it as one of two tests. Rouse v. Fader, 171 F.4th

272, 281 (4th Cir. 2026). At the same time, the court

expressed uncertainty over whether “Dep[artment] of

Commerce’s ‘predictable effect’ test is wholly distinct from

Bennett’s ‘determinative or coercive effect’ test, or

whether the former is a species or explanation of the

latter.” Id. at 281 n.9.

Altogether, the Fourth Circuit’s decision is a misread

of Department of Commerce that has left standing

doctrine weak and confused.

3. Unfortunately, the decision below doesn’t stand

alone. The Second and Ninth Circuits have flattened the

standing threshold by using a similarly adulterated

traceability test. In Ateres Bais Yaakov Academy of

Rockland v. Town of Clarkstown, the Second Circuit

faulted the district court for applying “the wrong

standard” when it demanded the plaintiff show the

defendant’s actions had a “determinative or coercive

effect” on a third party. 88 F.4th 344, 352 (2d Cir. 2023).

The court acknowledged that “mere speculation about the

decisions of third parties” doesn’t suffice. Id. (cleaned up).

12

But without any proof that the third party acted because

of the defendant’s conduct, the court fell back on its own

speculation of what was “predictable.” Id. at 352-53.

Similarly, in Center for Biological Diversity v. EPA, the

Ninth Circuit identified “several ways” to make a “causal

showing.” 168 F.4th 1164, 1176 (9th Cir. 2026). To its

credit, the court included showing a “determinative or

coercive effect” on a third party. Id. (cleaned up). But it

went ahead and found “predictable consequence[s]” of a

defendant’s actions sufficient to show traceability, too. Id.

Not all courts have strayed from Article III, though.

The Fifth, Sixth, and Eleventh Circuits, at least, continue

to dutifully apply the “determinative or coercive effect”

test. The Fifth Circuit has found no “determinative

action” when third parties “retain significant discretion”

in their actions that will cause a plaintiff’s injury.

Inclusive Cmtys. Project v. Dep’t of Treasury, 946 F.3d

649, 658 (5th Cir. 2019). The Sixth Circuit requires

plaintiffs to “show that the defendant’s actions had a

determinative or coercive effect on the third party such

that the actions of the third party can be said to have been

caused by the defendant.” Changizi v. HHS, 82 F.4th 492,

497 (6th Cir. 2023); see also, e.g., Ohio Stands Up! v. U.S.

Dep’t of Health & Hum. Servs., No. 21-3995, 2022 WL

1576929, at *2 (6th Cir. May 19, 2022) (explaining that,

where the “direct injuries” were “due to the independent

actions of intervening third parties,” those injuries were

not the “predictable effect” of the defendant’s actions

because those actions were not “determinative or

coercive” (cleaned up)). And the Eleventh Circuit refuses

to find traceability where “an independent source would

have caused [a plaintiff] to suffer the same injury.”

Berrocal v. Att’y Gen., 136 F.4th 1043, 1051 (11th Cir.

2025) (cleaned up).

13

The result is a genuine and entrenched division. Three

circuits demand what Bennett requires, two others accept

mere predictability, and the Fourth Circuit cannot say

which test governs its own cases. Only this Court can

restore a single rule.

***

At bottom, Respondents did not sufficiently plead a

causal connection to satisfy traceability. No company here

advocates criminal misuse of its products. Nothing in the

alleged advertisements tells someone to set up a sniper’s

perch, take aim at a school with the manufacturers’

products, and open fire. And Respondents do not allege

that the shooter in this case even saw the

advertisements—let alone hatched his criminal plan

because of them. Article III demands a causal connection

between Respondents’ injuries and Petitioners’ conduct.

And with a criminal third party in the middle,

traceability should require an especially determinative or

coercive effect. Generally, the law is particularly reluctant

to hold one party liable for the criminal acts of another.

See, e.g., J.F. by & through S.F. v. Carnival Corp., 141

F.4th 1164, 1173 (11th Cir. 2025) (“[I]ndependent illegal

acts of third persons are generally deemed

unforeseeable.” (cleaned up)); James v. Meow Media,

Inc., 300 F.3d 683, 699 (6th Cir. 2002) (“Generally, a third

party’s criminal action that directly causes all of the

damages will break the chain of causation.”). Although

that reluctance is not itself an Article III rule, it reflects

the same intuition traceability encodes: that an

intervening criminal choice is the actor’s own and can’t be

laid at the feet of a defendant who didn’t compel it. Yet

the majority wrongly accepted speculation about how

some third party could interpret a conglomeration of

advertisements as an endorsement of his criminal

14

scheme—if he saw them. That “highly attenuated chain

of possibilities” isn’t enough. Clapper, 568 U.S. at 410.

Article III asks whether the defendant caused the

injury. The Fourth Circuit never answered that question,

mistakenly believing that this Court had licensed it to

focus on attenuated effects. This Court’s intervention is

necessary to make clear that it did no such thing.

The traceability error inflicts constitutional

and statutory harms that a proper standing rule

would prevent.

The traceability requirement is not a formality. It

decides who must answer in federal court, and for what.

So when a circuit lowers that threshold, the consequences

don’t wait for judgment. A manufacturer sued for the

predictable effects of its advertising must defend that suit,

produce its marketing files, and price the risk of the next

one. Those costs fall on speech the First Amendment

shields, access the Second Amendment protects, and

interests Congress sought to protect through the

Protection of Lawful Commerce in Arms Act. But the

decision below lets plaintiffs plead around all of it.

1. Within the constellation of protected constitutional

rights is the First Amendment’s guarantee that speech

will not be “abridg[ed].” U.S. CONST. amend. I. “At the

heart” of this promise “is the recognition that viewpoint

discrimination is uniquely harmful to a free and

democratic society.” Nat’l Rifle Ass’n of Am. v. Vullo, 602

U.S. 175, 187 (2024). For reasons like these, and

considering the “strong interest in the free flow of

commercial information,” this Court has long recognized

a business’s right to advertise its products. Va. State Bd.

of Pharm. v. Va. Citizens Consumer Council, Inc., 425

U.S. 748, 764 (1976). So long as the commercial speech is

15

about lawful activity and is not misleading, Cent. Hudson

Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.

557, 566 (1980), businesses—gun manufacturers

included—can exercise their right to “speak freely,” 15

U.S.C. § 7901(b)(5).

This freedom of speech is often “paired with” various

“constitutional provisions” “to give rise to clausecombining protections.” Dan T. Coenen, Freedom of

Speech and the Criminal Law, 97 B.U. L. REV. 1533, 1600

(2017). That’s because the Court uses cumulative rights

to inform its constitutional analysis—“deriving an overall

conclusion of constitutional validity (or invalidity) from …

two or more constitutional provisions.” Michael Coenen,

Combining Constitutional Clauses, 164 U. PA. L. REV.

1067, 1070 (2016). Sometimes, “multiple rights-based

provisions of the Constitution might” invalidate a

“government action that would be permitted if each

provision were considered in isolation.” Id.; see also

Kerry Abrams & Brandon L. Garrett, Cumulative

Constitutional Rights, 97 B.U. L. REV. 1309, 1354 (2017)

(explaining that a “number of the most commonly litigated

constitutional theories involve cumulative theories”).

That’s just so here, as the case implicates both the First

Amendment and the constitutional right to “bear Arms.”

U.S. CONST. amend. II. Of course, military, national

guardsmen, and law enforcement use firearms every day.

But beyond those professionals, “there is [also] a long

tradition of widespread lawful gun ownership by private

individuals.” Staples v. United States, 511 U.S. 600, 610

(1994). And this Court has invalidated laws that “make[]

it impossible for citizens to use them for the core lawful

purpose of self-defense,” District of Columbia v. Heller,

554 U.S. 570, 630 (2008), and other purposes like hunting,

collecting, and competitive or recreational shooting, see

16

id. at 617-19; 15 U.S.C. § 7901(b)(2). The First and Second

Amendments can “work[] in tandem” to protect these

activities—and, more broadly, “protect speaking and

expressing ideas about” guns. Josh Blackman, The 1st

Amendment, 2nd Amendment, and 3D Printed Guns, 81

TENN. L. REV. 479, 506 (2014).

Effective advertising is important for these rights to be

vindicated. “[P]oor information about the quality of

competing brands may lead to spurious product

differentiation and reputation premiums, raising prices

for some or all functionally equivalent brands.” Howard

Beales et al., The Efficient Regulation of Consumer

Information, 24 J.L. & ECON. 491, 510 (1981). Increasing

prices reduces accessibility. See Philip Cook, et al.,

Underground Gun Markets, 117 ECON. J. F558, F558

(2007). The Second Amendment “implicitly protect[s]

those closely related acts necessary to [its] exercise,” Luis

v. United States, 578 U.S. 5, 26 (2016) (Thomas, J.,

concurring), and people can’t carry what they can’t access,

see, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597

U.S. 1, 38 n.9 (2022) (noting “lengthy wait times” and

“exorbitant fees deny ordinary citizens their right to

public carry”). So the Fourth Circuit’s test impermissibly

escorts Americans into a “regime” that “hobbles what the

Second Amendment protects: the right … to carry arms.”

Wolford v. Lopez, 146 S. Ct. 2032, 2041 (2026).

And indeed, the suit here undermines both the First

and Second Amendments. The gun manufacturers’

advertisements depict lawful Second Amendment uses.

They depict individuals holding firearms—no murder, no

terrorism, no mass shooting, no indiscriminate shooting.

Even the Fourth Circuit’s “representative sample[]”

advertisements—a conveniently curated collection of

posts on Instagram by five different companies over a

17

four-year span—cannot illustrate how the gun

manufacturers in this case “promote[d] the … unlawful

use of th[eir] products.” See App.14, 42. None of the

photos, no matter how cleverly arranged, show unlawful

conduct.

The advertisements are also not misleading. They

show how the manufacturers’ products could be used in

various lawful contexts. It’s lawful to bear arms in public.

Indeed, the Founders thought citizens’ personal safety

and security so essential, they enshrined this “ancient”

and “basic right” in our Constitution. McDonald v. City

of Chi., 561 U.S. 742, 767 (2010). And a “confrontation can

surely take place” anywhere, including “outside the

home.” Bruen, 597 U.S. at 33. The military, too, obviously

uses firearms to “deter war and ensure our nation’s

security.”

About,

U.S.

DEP’T

OF

WAR,

https://tinyurl.com/4ptmey7r (last accessed Aug. 10,

2026). So gun manufacturers advertise their products

being used in the contexts in which their broad audience

of lawful users, including civilian and military consumers,

might actually use them. See, e.g., E. Gregory Wallace,

“Assault Weapon” Myths, 43 S. ILL. UNIV. L.J. 193, 200

(2018); David Yamane et al., Targeted Advertising:

Documenting the Emergence of Gun Culture 2.0 in Guns

Magazine, 1955-2019, 6 HUMANS. & SOC. SCIS. COMMC’NS,

no. 61, Apr. 2020, at 1, 3.

By waving through lawsuits by almost any member of

the public injured by a firearm (no matter how

senselessly), the Fourth Circuit’s traceability standard

constrains gun manufacturers from advertising their

products. Under the Fourth Circuit’s formulation, any

advertisement that depicts a firearm could have the

“predictable effect” of unlawful misuse, especially

considering that a misused firearm can be thought to be

18

inherently dangerous. McLaughlin v. United States, 476

U.S. 16, 17 (1986). Indeed, “[g]un litigation has been part

of a larger trend to frame gun violence as an industry

problem best addressed by greater regulation of firearm

… marketing.” Timothy D. Lytton, Using Tort Litigation

to Enhance Regulatory Policy Making: Evaluating

Climate-Change Litigation in Light of Lessons from

Gun-Industry and Clergy-Sexual-Abuse Lawsuits, 86

TEX. L. REV. 1837, 1844 (2008). So litigants devise tenuous

theories that “promotional and marketing practices that

facilitate access to guns by criminals and other unsuitable

persons” can result in gun manufacturer liability. Richard

C. Ausness, Gun Control Through Tort Law, 68 FLA. L.

REV. F. 101, 103 (2017). Even if those theories don’t win,

letting litigants air them without standing will still chill

the manufacturers’ speech. They’ll never know in advance

which advertisement a future court might call a

“predictable” catalyst for violence.

We have gone down this road before, and this Court

has stopped prior attempts to regulate unpopular

industries by constraining the businesses’ ability to

advertise. Liquor, 44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996), tobacco, Lorillard Tobacco Co. v.

Reilly, 533 U.S. 525 (2001), beer, Rubin v. Coors Brewing

Co., 514 U.S. 476 (1995), and pharmaceuticals, Sorrell v.

IMS Health Inc., 564 U.S. 552 (2011), have all faced public

campaigns seeking to snuff out their manufacturers’ First

Amendment rights.

In those settings, the Court

reiterated that “[a]dvertising, however tasteless and

excessive it sometimes may seem, is nonetheless

dissemination of information.” 44 Liquormart, 517 U.S. at

496 (cleaned up). Restrictions on advertising rest on a

“paternalistic assumption that the public will use truthful,

nonmisleading commercial information unwisely.” Id. at

497. The rule below achieves the same result as those

19

direct restrictions obliquely, by making

advertisement a potential basis for standing.

every

And courts have rejected advertisement restrictions in

the firearm context, too. For example, the Ninth Circuit

rejected a blanket restriction on firearm advertisements

that would “reasonably appear[] to be attractive to

minors.” Junior Sports Mags. Inc. v. Bonta, 80 F.4th

1109, 1113, 1116 (9th Cir. 2023) (cleaned up); see also

Safari Club Int’l v. Bonta, No. 23-15199, 2023 WL

6178500, at *1 (9th Cir. Sept. 22, 2023). Depictions of

firearms being used to hunt, compete, and do other lawful

activities are protected commercial speech. Junior Sports

Mags., 80 F.4th at 1116-17. Even this Court has

recognized that a government may not “wield [its] power”

to “punish” (truthful and nonmisleading) “gun-promotion

advocacy.” Vullo, 602 U.S. at 194, 198-99.

Yet under the Fourth Circuit’s nebulous test, any gun

advertisement can lead to liability for a criminal action

perpetrated by a bad actor. So all the efforts to protect

First and Second Amendment rights are rolled back, and

the chilling effect on advertising is achieved all the same.

2. Outside constitutional rights, Congress has also

made suits like this one impermissible. A lower threshold

for standing in suits like these disrespects that intent.

In 2005, Congress passed the Protection of Lawful

Commerce in Arms Act to “prohibit causes of action

against” firearm companies for harm “solely caused by the

criminal or unlawful misuse of firearm products … [that]

function[] as designed and intended.” See 15 U.S.C.

§§ 7901(a)(3), (b)(1). Congress doesn’t want to enable

“regulation through litigation.” Hillel Levin & Timothy

Lytton, The Contours of Gun Industry Immunity:

Separation of Powers, Federalism, and the Second

20

Amendment, 75 FLA. L. REV. 833, 836 (2023).

Accordingly, the PLCAA prohibits a plaintiff from

bringing “a civil action ... against a manufacturer or seller

of a [firearm, ammunition, or firearm component], ...

resulting from the criminal or unlawful misuse of [that

product,] by the person or a third party.” 15 U.S.C.

§§ 7902(a), 7903(4), (5)(A).

Where standing turns only on predictability, the

statutory question might arrive after discovery, after the

defendants have produced marketing files, and after they

have incurred costs that Congress meant to prevent. Yet

“Congress enacted the [PLCAA] to halt a flurry of

lawsuits attempting to make gun manufacturers pay for

the downstream harms resulting from misuse of their

products.” Smith & Wesson Brands, Inc. v. Estados

Unidos Mexicanos, 605 U.S. 280, 298 (2025); see also 15

U.S.C. § 7901(a)(5). Indeed, it meant to allow only

challenges based on “statutes that actually regulate the

firearms industry,” City of N.Y. v. Beretta USA Corp., 524

F.3d 384, 404 (2d Cir. 2008), cert. denied, 556 U.S. 1104

(2009), not general tort theories of liability, Ileto v. Glock,

Inc., 565 F.3d 1126, 1132-38 (9th Cir. 2009), cert. denied,

560 U.S. 924 (2010), even if codified, District of Columbia

v. Beretta USA Corp., 940 A.2d 163, 170-72 (D.C. 2008),

cert. denied sub nom. Lawson v. Beretta USA Corp., 556

U.S. 1104 (2009). That’s why lower courts have repeatedly

rejected theories like those Respondents press here.

Ausness, supra, at 91.

Congress understood the risks of “imposing liability on

an entire industry for harm that is solely caused by

others.” 15 U.S.C. § 7901(a)(6). That sort of fault

redistribution “abuse[s] … the legal system, erodes public

confidence in our Nation’s laws, threatens the diminution

of [] basic constitutional right[s] and civil libert[ies], [and]

21

invites the disassembly and destabilization of other

industries.” Id. Truly, “overturning bipartisan legislation

and suing guns out of existence does not properly reflect

our democratic principles.” Scott R. Thomas & Mystica

M. Alexander, Suing Guns Out of Existence?, 75 WASH. &

LEE L. REV. ONLINE 175, 196 (2019) (cleaned up).

Congress had special reason to act because the effects

of this kind of gun litigation don’t stop at any one State’s

borders. A manufacturer that cannot predict which

advertisement might be labelled a “predictable” cause of

inherently unpredictable violence is unlikely to tailor its

marketing State by State; it’s more likely to stop

advertising everywhere. So when standing is relaxed, the

forum with the loosest standard begins to govern

everyone. Yet States have made their own judgments

about lawful firearm commerce, and those judgments are

entitled to effect within their own borders. After all, “a

State may not impose economic sanctions on violators of

its laws with the intent of changing the tortfeasors’ lawful

conduct in other States.” BMW of N. Am., Inc. v. Gore,

517 U.S. 559, 572 (1996). Article III’s traceability

requirement is one of the structural protections that keeps

a single circuit’s rule from becoming national policy by

default. A traceability requirement this permissive can’t

perform that function.

***

Tragic facts don’t change what Article III asks: did this

defendant cause this injury? The harms described—to

speech, firearms access, and a judgment Congress already

made—are what follow when a court stops asking the

right question.

22

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

CALEB B. DAVID

Deputy Solicitor General

MATTHEW K. NIU

Caldwell Fellow

Counsel for Amicus Curiae State of West Virginia

23

ADDITIONAL LEGAL

REPRESENTATIVES OF THE STATES

STEVE MARSHALL

Attorney General

State of Alabama

BRENNA BIRD

Attorney General

State of Iowa

CORI MILLS

Acting Attorney

General

State of Alaska

KRIS KOBACH

Attorney General

State of Kansas

TIM GRIFFIN

Attorney General

State of Arkansas

RUSSELL COLEMAN

Attorney General

Commonwealth of

Kentucky

JAMES UTHMEIER

Attorney General

State of Florida

CATHERINE HANAWAY

Attorney General

State of Missouri

CHRIS CARR

Attorney General

State of Georgia

AUSTIN KNUDSEN

Attorney General

State of Montana

RAÚL LABRADOR

Attorney General

State of Idaho

MICHAEL T. HILGERS

Attorney General

State of Nebraska

THEODORE E. ROKITA

Attorney General

State of Indiana

DREW WRIGLEY

Attorney General

State of North Dakota

24

GENTNER DRUMMOND

Attorney General

State of Oklahoma

JONATHAN SKRMETTI

Attorney General and

Reporter

State of Tennessee

DAVE SUNDAY

Attorney General

Commonwealth of

Pennsylvania

KEN PAXTON

Attorney General

State of Texas

ALAN WILSON

Attorney General

State of South Carolina

KEITH KAUTZ

Attorney General

State of Wyoming

MARTY JACKLEY

Attorney General

State of South Dakota