Delaware, New Jersey Sued for Allowing Lawsuits Against Gun Manufacturers

Firearms on the shelf at a gun shop in Jersey City, N.J., on March 25, 2021. Spencer Platt/Getty Images

A firearm trade group has taken Delaware and New Jersey to court, seeking to overturn recently enacted laws that allow governments and individuals to sue gun manufacturers for crimes committed with their products.

The suits were filed separately on Wednesday in federal courts in Delaware and New Jersey. The National Shooting Sports Foundation (NSSF), a nonprofit group advocating for the firearm industry, argued that both states have “unconstitutionally vague” laws designed to hold the manufacturers and sellers of weapons liable for criminal actions that take place after weapons are legally sold.

In June, Delaware Gov. John Carney signed into law Senate Bill 302, which allows the state to sue the members of the firearms industry if the making, selling, and marketing of their products “contributes” to “public nuisance” or the endangerment of “health, safety, peace, comfort, or convenience” of the public.

On top of that, the law allows victims of crimes that involve guns to sue industry members for failing to implement “reasonable procedures, safeguards, and business practices” to prevent straw purchases or theft. It doesn’t specify whether plaintiffs have to prove that such failure was done intentionally to cause harm.

Similarly, New Jersey Gov. Phil Murphy in July signed Assembly Bill 1765, a measure of the same nature. The bill’s passage led to the creation of a new office dedicated to bringing legal actions against gunmakers and sellers for alleged “public nuisance” caused by third-party criminal actions.

“These laws enacted by the Delaware and New Jersey [sic] flout the will of Congress and undermine the U.S. Constitution,” Lawrence Keane, NSSF’s senior vice president, said in a press release.

Keane points to the Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 federal law which—with the intention of making sure Americans have reasonable access to firearms—explicitly gives legal immunity to gun manufacturers and sellers for damages “resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.”

The PLCAA does not, however, shield the firearm industry from lawsuits on traditional product liability grounds. The law also states that they may still be held liable for negligent entrustment when they have reason to know a gun is intended for use in a crime.

“These state laws are at odds with bedrock principles of American law, which does not hold manufacturers and sellers legally responsible for the actions of criminals and remote third parties over whom the manufacturer and seller have no control when they misuse lawfully sold products,” Keane argued.

Biden Seeks to Remove Federal Protection

The lawsuits comes as President Joe Biden continues to call for an end to the PLCAA.

Biden, who represented Delaware in the U.S. Senate in 2005, voted against the PLCAA. The measure passed 65–31, with 14 of all 43 voting Democrats joining Republicans to vote “yes.”

“What people don’t realize: The only industry in America—a billion-dollar industry—that can’t be sued, has exempt from being sued, are gun manufacturers,” Biden said in April 2021 during a Rose Garden event at the White House.

In a roadmap released in June 2021, the White House said it would, in the meantime, work with state legislators and attorneys general to “discuss strategies” for pushing state liability laws that can be used to hold gunmakers and sellers accountable for “improper conduct not covered by the PLCAA.”