In hunting, there is an old adage: “aim small, miss small.” The point is that, if you want to hit a target, aim for a small part rather than the whole target. It is often the difference between a total miss and a marginal hit. In the area of Second Amendment law, the most promising legislative measures are the ones that aim small on the edges of the constitutionally-based right — the strategy used by abortion opponents. The problem is that politicians rarely want to aim small when they are trying to score big with voters.
An example is the recent New York public nuisance law seeking to make gun manufacturers liable for gun crime. Not only is the law likely to be a large miss, it will likely deliver another blow to gun control efforts by adding precedent protecting Second Amendment rights.
I’ve discussed the New York public nuisance law aimed at gun manufacturers, a law that doubles down on a failed legal theory using torts as a substitute for direct legislative bans or barriers. As expected, gun groups like the National Shooting Sports Foundation (NSSF) as well as 14 firearms manufacturers, distributors, and retailers are now filing suit. They should have an excellent shot at a preliminary injunction.
The New York nuisance law was heralded by then-Gov. Andrew Cuomo as a response to the new “epidemic” facing New Yorkers. There is, of course, nothing new about gun violence in New York, but Cuomo and other New York politicians knew that promising to crush the gun industry never fails to garner support in the Empire State … and few people hold you responsible when you aim big and miss big.
The problem is that major Democratic cities are delivering lasting self-inflicted wounds to gun control efforts with poorly conceived and poorly drafted measures.
In 2008, the District of Columbia in 2008 brought us District of Columbia v. Heller, the watershed decision declaring that the Second Amendment protects the individual right of gun possession.
In 2010, Chicago brought us McDonald v. City of Chicago, in which the Court declared that that right is incorporated against state and local government.
However, no state has done more for the Second Amendment than New York.
In 2020, the city triggered a controversial appeal in New York State Rifle & Pistol Association, Inc. v. City of New York. The law barred the transfer of unloaded and locked firearms from one’s residence to anywhere other than a small number of designated shooting ranges within the city. At its passage, New York officials pounded their chests and promised they were certain of the constitutionality of the law and would litigate it all the way to the Supreme Court. When the court accepted the case for review, however, the same officials scrambled to dismiss the case as moot after later rescinding the provisions.
The Court was not amused by New York’s gaming the judicial system. New York leaders had forced costly litigation only to pull the law at the last minute to avoid a likely finding of unconstitutionality.
Justices Neil Gorsuch and Clarence Thomas specifically called out New York for “manipulating” the docket by withdrawing an unconstitutional law just before a final opinion. Justice Brett Kavanaugh joined in the condemnation and noted, in light of the Second Circuit decision in the case, that “some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
The Court notably then proceeded to take a new case challenging a different New York law by the same lead plaintiff: the New York State Rifle Association. That case is New York State Rifle & Pistol Association, Inc. v. Bruen and deals with the Sullivan Act of 1911, giving local officials discretion over who can carry concealed guns based on a showing of “proper cause.” Bruen could now result in a major enhancement of Second Amendment rights for concealed carry permits — negating a host of laws across the country.
New York is not done with its circular firing squad on gun control.
The New York nuisance law was crafted after a series of failures of similar such nuisance laws in areas ranging from paint to, yes, guns. Indeed, Congress passed the Protection of Lawful Commerce in Arms Act of 2005, giving gun sellers and manufacturers immunity from liability arising out of the criminal misuse of firearms.
It is political merit — rather than legal merit — that has often propelled New York anti-gun laws. In this latest effort, the state sought to aim big by using an exception under the law if a company “knowingly violated a state or federal statute applicable to the sale or marketing” of firearms. If allowed, the exception would swallow the rule, in a law expressly directed at preempting such nuisance lawsuits.
Cuomo himself made the case against the law by publicly declaring that it was designed “to reinstate public nuisance liability for gun manufacturers.” He declared the New York law as doing precisely what Congress forbade: “The only industry in the United States of America immune from lawsuits are the gun manufacturers, but we will not stand for that any longer.”
The statement was remarkably moronic in a preemption case, but also showed the contempt not just for the courts but the public at large. Cuomo had no qualms in admitting that the law was a work-around of the federal law because it was more of a political than legal effort.
Now, the courts are likely to deliver another loss for New York and another big win for the Second Amendment.
That is the great irony of all of this. Gun activists often target “pro-gun states” and bemoan their legislative efforts to expand gun rights. However, the real damage being done to the gun control movement is by its own hand. Indeed, as shown this week, New York is the gift that keeps on giving to the Second Amendment. The state has thus far been about as effective in curtailing gun rights as Monty Python’s “Judean People’s Front Crack Suicide Squad” was effective in combating Roman occupation.
After all, who needs Texas when gun rights advocates have New York?
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.