This Note defends the viability of state public nuisance statutes that seek to hold gun industry members liable for gun violence. This goal is based on a least cost avoider theory: gun industry members are in the best position to avoid the significant costs of gun violence; thus, subjecting them to liability is the best chance we have to effectively mitigate the problem (short of an outright ban, which, under the Court’s Second Amendment jurisprudence, is unconstitutional).
Public Nuisance Firearm Laws (“PNFLs”) face both a statutory and a constitutional challenge. The statutory challenge comes from the Protection of Lawful Commerce in Arms Act (“PLCAA”), which shields gun industry members from most “general” tort claims. However, the PLCAA expressly provides an exception for “predicate statutes”—that is, state statutes creating a cause of action that specifically targets gun industry members for the purpose of reducing gun violence. I argue that PNFLs count as predicate statutes under this exception, and thus they avoid the statutory challenge.
The second challenge is the Second Amendment, which, under the most recent Supreme Court decision in Bruen, requires states attempting to regulate firearms to show an analogue for their regulation in the historical tradition of American gun regulation. I make two arguments that PNFLs can withstand Second Amendment scrutiny. First and most importantly, the Supreme Court has unequivocally held that the Second Amendment protects an individual’s right to keep and bear arms for purposes of self-defense, not any rights of gun industry members. Thus, at least under the current jurisprudence, the Second Amendment does not directly apply to PNFLs. My second argument is that, regardless of whether the Second Amendment applies, PNFLs can pass the historical analogue test because there is a long tradition of using public nuisance against the use, sale, and storage of firearms and firearm-related materials.
