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Federal Appeals Court Skeptical of Challenge to New Jersey Firearms Liability Law

— June 8, 2023

The appellate court suggested that the pro-firearms plaintiff organization may have filed its case prematurely.

A federal appeals court has raised concerns that a challenge to New Jersey’s recently-passed firearms liability law was filed prematurely.

According to Reuters, New Jersey is among the first states to have enacted a law making it easier to file civil claims against firearm manufacturers and retailers.

The law relies on a procedural exception to federal law, which broadly shields firearm companies from vicarious liability.

Reuters notes that, on Wednesday, the 3rd U.S. Circuit Court of Appeals in Philadelphia heard arguments from the National Shooting Sports Foundation, which claims that New Jersey’s liability statute is, in fact, precluded by federal law.

However, the appellate court appeared concerned that—although the liability law appears to contain text “directly contrary” to the federal Protection of Lawful Commerce in Arms Act—the claim may have been filed too early to be considered.

“Why shouldn’t we wait and see what the case looks like before we make a decision about whether the New Jersey Attorney General is acting consistent with [the Protection of Lawful Commerce in Arms Act] or is preempted by [the Protection of Lawful Commerce in Arms Act]?” Circuit Court Judge Thomas Hardiman asked attorneys for the National Shooting Sports Foundation.

Another circuit court judge, Stephanos Bibas, also said that—without a case—the court could be forced to issue an opinion that imagines a wide range of “different things that could be argued.”

A close-up image of an AR-15 semiautomatic rifle. Image via Wikimedia Commons/Steve Rainwater. (CCA-BY-2.0)

Nevertheless, Erin Murphy—a Clement & Murphy attorney representing the National Shooting Sports Foundation—argued that the foundation’s claim only requires that the court decide whether New Jersey’s liability law is consistent with the Protection of Lawful Commerce in Arms Act.

Murphy further suggested that, even as the court characterized the plaintiffs’ claims as hypothetical, her clients have valid concerns about the law’s legality.

“The idea that all of this is some fanciful hypothetical is just really hard for my clients to stomach,” Murphy told the court.

A New Jersey-based district court had earlier ordered a preliminary injunction against the law, opining that—even if the state attorney general is attempting to mitigate the far-ranging effects of gun violence—federal law must necessarily take precedence over contradictory state-level statutes.

“The Court is mindful that firearms are inherently dangerous and even more so in the wrong hands, but it is also mindful that the PLCAA embodies Congress’s earnest effort to balance those dangers against the national interest in protecting access to firearms,” the district court wrote in a January decision granting the National Shooting Sports Foundation’s request for a preliminary injunction. “Under the circumstances, the Court is therefore compelled to find that Defendant fails to show legitimate countervailing concerns and that the public interest favors granting Plaintiffs motion for a preliminary injunction.”

The law, which was passed by the New Jersey State Legislature in July of 2022, has been on-hold since the district court’s injunction.


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