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National Shooting Sports Foundation’s similar lawsuit in New Jersey dealt setback

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* Background is here if you need it. The Hill…

A federal appeals court on Thursday dismissed a lawsuit challenging a New Jersey law that creates a pathway for the state to sue the gun industry.

A three-judge panel on the U.S. Court of Appeals for the 3rd Circuit ruled the lawsuit brought by the National Shooting Sports Foundation (NSSF), a firearm industry trade association, was filed too early. The group challenged the law before enforcement began. […]

The law, which was passed last year, enables New Jersey’s attorney general to sue entities that manufacture, distribute, sell or market gun-related products if they contribute to a public nuisance.

The trade association filed the lawsuit in November before New Jersey’s law went into effect, and a federal district judge blocked the legislation in a preliminary decision.

* From the opinion…

Federal courts are not forecasters. The Constitution limits our jurisdiction to disputes that have ripened fully. We may not prejudge hypothetical cases or offer legal advice. Instead, par- ties must first be injured before coming to us for redress. Only then do we react. When constitutional rights are at stake, we accelerate that timeline—but only slightly. We may hear a case before a person’s rights are violated only if the threat is imminent.

The National Shooting Sports Foundation challenges a new state gun law as violating its members’ constitutional rights. But we see little evidence that enforcement is looming. Be- cause the Foundation has jumped the gun, its challenge must be dismissed. […]

The first theory goes not to standing, but to the merits. Even if federal law gives gun sellers a statutory immunity that New Jersey would violate just by filing a complaint, a statutory violation is not enough to show standing. The Foundation must also show how violating their purported statutory immunity “has a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts.” It has not done so. Nor has it explained why this potential statutory (rather than constitutional) violation would justify pre-enforcement review. We will not try to connect the dots for it.

The Foundation’s second theory is not much better. It rests on “generalized allegations.” The Foundation says little about what it plans to do. It has pleaded that it is an association of gun makers and sellers, and it has offered declarations that the Law chills its members’ manufacturing, marketing, and sales. From that evidence, we can infer that its members plan to make, market, and sell guns. But that is all.

Yet “an allegation that certain conduct has (or will have) a chilling effect on one’s speech must claim a … threat of specific future harm.” Id. at 269–70 (internal quotation marks omitted). The same goes for one’s Second Amendment rights. But the Foundation makes no such specific claim. It repeatedly conjures the specter of “sweeping liability” that will force its members to shutter their businesses. Yet its bold assertion is backed by no evidence. A plaintiff must do more than assert “subjective chill.”

* Fox News has react from the National Shooting Sports Foundation…

NSSF General Counsel Lawrence Keane said in a statement the group will file another complaint against New Jersey should the “public nuisance” law be enforced against the gun industry.

“While we respectfully disagree with the court’s decision on our pre-enforcement challenge, it is important to note the court did not say New Jersey’s law does not violate the Protection of Lawful Commerce in Arms Act; it clearly does,” Keane said.

The NSSF is making the same sorts of arguments about Illinois’ new Firearm Industry Responsibility Act, including that it violates the federal Protection of Lawful Commerce in Arms Act. New Jersey is a different state with a different law in a different federal circuit, but this is still probably worth mentioning.

But it’s probably also worth noting that the US Supreme Court did pretty much the opposite recently when it struck down a Colorado law that hadn’t yet harmed the plaintiff.

posted by Rich Miller
Friday, Aug 18, 23 @ 12:22 pm

Comments

“”But it’s probably also worth noting that the US Supreme Court did pretty much the opposite recently when it struck down a Colorado law that hadn’t yet harmed the plaintiff.”"

Exactly

Comment by walker Friday, Aug 18, 23 @ 12:55 pm
Yup, the Supremes now deal with hypothetical Constitutional issues. Who’d a thunk?

Comment by Jerry Friday, Aug 18, 23 @ 12:59 pm
Consistency, or otherwise known as precedent or “settled law” has not been a concern for this SCOTUS.

Comment by Norseman Friday, Aug 18, 23 @ 1:03 pm
SCOTUS has decided (no pun intended) that settled law is law they are settling for the time being, or law they can choose to rewrite after they ruled another way in their own written opinions.

It’s folly now to first speculate to how they will rule, it’s foolish to think you can figure out the legal rationale

“Anyone can win” kind of court is different…

…than equal Justice under the law.

Comment by Oswego Willy Friday, Aug 18, 23 @ 1:05 pm
My personal fave is Clarence Thomas interpreting the framer’s viewpoints on the second amendment, but overlooking, as a black man, having no standing in their eyes.

Comment by Jocko Friday, Aug 18, 23 @ 1:23 pm
@jocko

Not only not having standing, he wouldn’t have even been a gun owner to attempt to sue.

Comment by Jerry Friday, Aug 18, 23 @ 1:53 pm
Clarence Thomas- strict constructionist, then originalist, then contextualist. The law is fluid. lol.

Comment by JS Mill Friday, Aug 18, 23 @ 2:26 pm
The National Shooting Sports Foundation pulled the trigger too early in Jersey. /s

Comment by Big Rocker Friday, Aug 18, 23 @ 3:51 pm