The Gun Industry Thinks It’s Above the Law
A new lawsuit out of New Jersey could change that.
For decades, gun manufacturers have enjoyed an immunity unlike any other industry.
In 1972, when Congress established the Consumer Product Safety Commission to protect consumers from dangerous products, it specifically exempted firearms from regulation by the CPSC. And in 2005, the Protection of Lawful Commerce in Arms Act (PLCAA) gave the firearms industry sweeping protection from civil liability when their products are used to hurt or kill someone. Given that nearly 40,000 Americans lose their lives to gun violence each year, this was a major coup for an industry worth an estimated $28 billion.
New Jersey
But in New Jersey, thanks to a courageous governor and attorney general, a new effort aims to prove that the gun industry isn’t above the law. New Jersey already has among the strongest gun laws of any state in the nation and a correspondingly low gun death rate. The state has long been a leader in funding proven violence intervention programs—allocating $20 million in funding for hospital-based violence intervention in September 2019—and recently took another major step forward for gun safety. And now it’s opened a new front in the battle against gun violence.
New Jersey’s Innovative Approach
In October 2020, New Jersey Attorney General Gurbir Grewal sent a subpoena to firearms manufacturer Smith & Wesson as part of an investigation into claims made in—and facts omitted from—the company’s advertising. According to court documents, the state alleges that some of the company’s ads “may misrepresent the impact owning a firearm has on personal safety,” and market the concealed carrying of firearms with no mention of the permit needed to carry concealed weapons in the state. Rather than responding to the subpoena, Smith & Wesson filed a meritless federal lawsuit, making the audacious claim that, unlike every other industry, it has a right under the First and Second Amendments to avoid complying with New Jersey’s consumer protection laws.
A recent piece in the New York Times called the suit “the most important gun lawsuit you’ve never heard of.” As I told the Times, Smith & Wesson and the broader gun industry fear nothing more than the prospect of their internal documents and discussions about their products being exposed to the public—which is exactly what New Jersey’s subpoena would accomplish. This groundbreaking effort has the potential to force more of the gun industry’s shady dealings into the light of day, and that’s why Smith & Wesson took the Hail Mary step of suing the state of New Jersey to try to stop it.
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May 24, 2022
In trying to obstruct the attorney general’s attempt to enforce the law, the corporation is borrowing a page from the NRA’s book. The NRA has faced scandal after scandal in recent years, from messy infighting to election-law violations to egregious financial mismanagement. It has also had its own share of issues with state attorneys general: both the New York and DC attorneys general have sued the organization for its flagrant management abuses and violation of its nonprofit status.
Rather than addressing the claims against it head-on, the NRA went so far as to declare bankruptcy and try to relocate from New York to Texas, a clear bid to escape accountability. A recent filing in support of the NRA’s effort by several Republican state attorneys general echoed Smith & Wesson’s specious arguments that the First and Second Amendments allow the gun lobby group to violate the law with impunity.
Decades of Unprecedented Immunity
A clear throughline runs through the gun industry and gun lobby’s clashes with the government: both are used to being treated with kid gloves by the government, and lash out when there’s the slightest hint that they might lose their unique, protected status.
The Gun Lobby
While the possibility of civil litigation typically holds industries in check, providing an incentive to make products safer, PLCAA provides the gun industry unusual immunity held by no other. Lawsuits against the tobacco industry in the 1990s forced it to stop marketing tobacco products to children, while those against automobile manufacturers led that industry to adopt stronger safety standards.
In many cases, gun deaths and injuries could have been avoided if the gun industry acted more responsibly. Yet PLCAA prevents victims and their families from raising these issues in court. This law’s broad language presents a serious obstacle to victims in cases where a gun dealer’s negligent business practices have put guns in the hands of gun traffickers and other criminals. PLCAA’s narrowly worded exceptions do not apply in many cases where a gun business has acted with reckless disregard for public safety, meaning that victims are shut out from seeking justice.
In 2019, Senator Richard Blumenthal (D-CT) and Representative Adam Schiff (D-CA) introduced the Equal Access to Justice for Victims of Gun Violence Act to repeal PLCAA. Legislators should introduce similar legislation in this Congress to finally hold the gun industry accountable.
A New Path Forward
Other states should follow New Jersey’s lead in bringing accountability to an industry that has long lacked it. All states have the same kind of laws to protect consumers as New Jersey does, including protections from the kinds of deceptive advertising that New Jersey is investigating with respect to Smith & Wesson.
The government can no longer turn a blind eye to the gun industry’s recklessness. Too many lives have already been lost, and too many more are on the line. New Jersey has painted an innovative path forward. Other states should follow the Garden State’s example and take matters into their own hands.
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