Another New York Gun Rights Showdown
A lawsuit challenges Albany’s law against out-of-state firearm manufacturers and sellers.

Can New York target out-of-state businesses that make or market guns with “public nuisance” lawsuits if those guns are used in a crime? We’re about to find out, as 14 gun makers and sellers have challenged the state law’s constitutionality in federal court.

Albany passed the law in July, but it is part of a decades-long effort to make it too expensive for these companies to stay in business. Twenty years ago, as secretary of Housing and Urban Development, Andrew Cuomo characterized his anti-Second Amendment strategy as “death by a thousand cuts.” As New York Governor he signed the law before he resigned in disgrace amid multiple sexual harassment claims.

The New York law runs headlong into the federal Protection of Lawful Commerce in Arms Act of 2005, which is meant to stop this kind of state mischief. The plaintiffs challenging the state law claim that it violates the U.S. Constitution’s Supremacy Clause, which prohibits states from interfering with the federal government’s constitutional powers.
They also cite a violation of the Commerce Clause because New York is regulating gun sales outside the state while leaving most New York gun businesses unaffected. The suit throws in a Fourteenth Amendment due process claim because it says the law is “impossibly vague.”

A Memo of Law filed by the National Shooting Sports Foundation in support of the complaint adds that the statute “implicates the exercise” of “manufacturers’ and sellers’ First Amendment right to market firearms, and customers’ Second Amendment right to purchase them.” David Rivkin, a contributor to these pages on legal matters, says the New York law is akin to allowing people hit by a drunk who was driving a Mustang to sue Ford.

The Supreme Court has winked at this abuse by declining until recently this year to follow up its landmark Heller (2008) and McDonald (2010) decisions—which affirmed that the Second Amendment is an individual right enforceable against the states. The Court recently heard oral arguments in New York State Rifle & Pistol Assn. v. Bruen, about New York’s restriction on the right to carry a firearm outside the home.

The new challenge to Albany’s harassment of out-of-state businesses may offer the High Court another chance to reinforce the Second Amendment. Both laws deserve to be sent packing, constitutionally speaking.