* Background is here if you need it. National Shooting Sports Foundation, Inc. filed suit in the Southern District against Attorney General Kwame Raoul over HB218, the Firearm Industry Responsibility Act…

1. This lawsuit challenges the constitutionality of a new Illinois statute specifically designed to evade the judgment of Congress—and the Constitution.

2. On August 12, 2023, Governor J.B. Pritzker signed into law Illinois House Bill 218 (“HB 218”), which radically expands liability in Illinois for members of the firearm industry—and them alone. Under HB 218, the “sale, manufacturing, importing, or marketing of a firearm-related product” anywhere in the country may be deemed to violate Illinois law (and justify the imposition of sweeping liability), even if it complied with all state and federal regulations, if an Illinois judge or jury later finds that such conduct “contribute[d] to a condition in Illinois that endangers the safety or health of the public.” 815 Ill. Comp. Stat. 505/2BBBB-(b)(1).

3. Although the statute purports to be aimed at preventing firearms from being used in such a way that endangers public safety or health, HB 218 does not regulate the use (or misuse) of firearms. Nor does it impose liability on individuals who misuse firearms to the detriment of themselves or others. Instead, HB 218 regulates selling, manufacturing, and advertising lawful (and constitutionally protected) firearms and related products. In other words, HB 218 regulates commerce in and speech relating to arms—even when that commerce and speech takes place entirely outside of Illinois, as will often be the case. HB 218 also removes traditional elements of tort law that ensure that judges and juries do not impose liability on private parties for constitutionally protected conduct. Making matters worse, the statute jettisons traditional proximate cause in favor of allowing state courts to impose liability on licensed industry members for the actions of third- party criminals with whom the industry members never dealt.

4. None of that is consistent with the Constitution. The First Amendment prohibits states from punishing wide swaths of truthful speech about lawful products, even if the products are dangerous or the speech is unpopular. The Second Amendment protects commerce in arms. Numerous constitutional provisions prohibit states from regulating conduct that takes place wholly beyond their borders, even when that commerce has effects within the state. And the Due Process Clause prohibits states from punishing one private party for the conduct of another.

5. All of that is reason enough to invalidate Illinois’ new statute. But there is an even more obvious problem with HB 218: It is squarely preempted by federal law. In the late 1990s and early 2000s, several state and local governments sought to use novel applications of common-law theories like negligence and nuisance to impose civil liability on manufacturers and sellers of firearms and ammunition when third parties misused their products. Congress saw these lawsuits for what they were: unconstitutional efforts to stamp out lawful and constitutionally protected activity. To end such incursions, Congress enacted the Protection of Lawful Commerce in Arms Act in 2005 by wide margins on a substantially bipartisan basis. The PLCAA expressly prohibits and preempts state-law civil actions “brought by any person against a manufacturer or seller of [firearms or ammunition] … for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of [firearms or ammunition] by the person or a third party.” 15 U.S.C. §7903(5)(A).

6. Illinois is now trying to resurrect the very kinds of lawsuits that the PLCAA was enacted to eliminate. Under HB 218, state officials and private parties may bring civil actions against licensed manufacturers and sellers of firearms, ammunition, and related products for damages and other relief resulting from the criminal use of a firearm by a third party. HB 218 therefore falls squarely within the express-preemption provision of the PLCAA.

7. For these reasons and those set forth below, NSSF seeks a declaration that HB 218 is preempted and unconstitutional, an injunction preventing Illinois from enforcing it against NSSF and/or its members, nominal damages, and any other relief this Court deems proper.

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