July 18, 2025 – Last week, the U.S. Court of Appeals for the Second Circuit, a court that is historically adverse to the firearms industry, issued an opinion upholding the facial constitutionality of New York’s firearm related public nuisance statute, N.Y. General Business Law §§ 898-a–e (“Section 898”). New York had enacted Section 898 for the express purpose of satisfying the predicate exception to the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-7903 (‘PLCAA’), and to authorize lawsuits that Congress had sought to prohibit.
The opinion was issued in a lawsuit brought by the National Shooting Sports Foundation, Inc. (“NSSF”), and several other members of the firearms industry,in the U.S. District Court for the Northern District of New York, arguing that Section 898 is facially unconstitutional because it is preempted by the PLCAA, violates the dormant Commerce Clause, and is void for vagueness. The district court granted the State’s motion to dismiss the complaint based on its conclusion that Section 898 is constitutional. NSSF appealed that decision to the Second Circuit.
The Second Circuit explained that “Section 898: (1) requires gun industry members to establish and utilize reasonable controls and procedures to prevent unlawful misuse of relevant firearm products within New York, and (2) permits civil actions against industry members if they knowingly or recklessly endanger New York’s population through the sale or manufacture of firearms and firearms accessories.”
The Second Circuit analyzed NSSF’s challenge to Section 898 as a “facial challenge” – which it recognized “is the most difficult challenge to mount successfully” – requiring the NSSF to “establish that the law cannot be constitutionally applied against anyone in any situation.” Under that exacting standard, the Second Circuit held that Section 898 was not expressly preempted because it “falls within the bounds of the PLCAA’s predicate exception.” The Court also declined to hold that Section 898 is impliedly preempted “[w]ithout the benefit of particular instances of enforcement.”
In a concurring opinion, Judge Jacobs explained that the Second Circuit’s decision has limits and that Section 898 has vulnerabilities. Specifically, he noted that the intent of the PLCAA was to “shut the door on litigation that would destroy the nation’s firearms industry.” He explained that because Section 898 is “a broad public nuisance statute that applies solely to ‘gun industry members’ and is enforceable by a mob of public and private actors,” New York is attempting to “jimmy a window” where “Congress . . . close[d] a door.” Judge Jacobs opined that Section 898 is “nothing short of an attempt to end-run PLCAA” and is thus vulnerable “to as-applied preemption challenges and the narrow aperture of the law’s legitimate reach.” He concluded, “[t]here is every indication that New York intends Section 898 to contravene federal law,” but as “there is some legitimate reach to the law, which suffices for us to affirm the dismissal of this facial challenge,” “[j]ust how limited that reach is must await future cases.”
There are several cases pending in New York against firearms industry members relying on Section 898 to satisfy the predicate exception to the PLCAA. Those cases will provide an opportunity for the judges hearing them to rule on the as-applied challenges to the constitutionality of Section 898 addressed by Judge Jacobs.
Renzulli Law Firm will continue to monitor the impact of Section 898 on the firearms industry. If you have any questions, please contact John F. Renzulli or Christopher Renzulli.