National Shooting Sports Foundation, Inc. v. James

• Court: Court of Appeals for the Second Circuit
• Decided: July 10, 2025
• Docket: 22-1374
• Status: Published

Opinion

22-1374-cv National Shooting Sports Foundation, Inc. v. James

In the United States Court of Appeals For the Second Circuit

August Term, 2023 Argued: November 3, 2023 Decided: July 10, 2025

Docket No. 22-1374-cv

NATIONAL SHOOTING SPORTS FOUNDATION, INC., BERETTA U.S.A. CORP., DAVIDSON’S, INC., GLOCK INC., CENTRAL TEXAS GUN WORKS, HORNADY MANUFACTURING COMPANY, LIPSEY’S LLC, OSAGE COUNTY GUNS LLC, RSR GROUP, INC., SHEDHORN SPORTS, INC., SIG SAUER, INC., SMITH & WESSON INC., SPORTS SOUTH LLC, SPRAGUE’S SPORTS INC., STURM, RUGER & COMPANY, INC.,

Plaintiffs-Appellants,

—v.—

LETITIA JAMES, IN HER OFFICIAL CAPACITY AS NEW YORK ATTORNEY GENERAL,

Defendant-Appellee.

Before: JACOBS, LOHIER, LEE, Circuit Judges.

National Shooting Sports Foundation, a trade association of manufacturers and wholesalers of firearms, and fourteen of its members, appeal from an order and judgment entered in the United States District Court for the Northern District of New York (D’Agostino, J.) dismissing their complaint challenging New York’s gun-related public nuisance statute, N.Y. General Business Law § 898-a–e, which imposes liability for gun industry members who knowingly or recklessly

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endanger the safety or health of the public through their sale or marketing of firearms. The complaint alleges that Section 898 is unconstitutional because it is preempted by the federal Protection of Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. §§ 7901–7903, violates the dormant Commerce Clause, and is so vague as to violate the Due Process Clause of the Fourteenth Amendment. The district court granted judgment in favor of New York’s Attorney General, Letitia James, in her official capacity, because it determined that Section 898 was neither preempted by PLCAA nor constitutionally infirm. On appeal, we find that Plaintiffs-Appellants have not met their burden in this facial, preenforcement challenge to demonstrate that Section 898 is unenforceable in all its applications. We further conclude that, on its face, Section 898: (1) falls within PLCAA’s predicate exception clause and thus is not preempted, (2) does not violate the principles of interstate commerce, and (3) is not void for vagueness. Therefore, we AFFIRM the judgment of the district court.

Judge Jacobs concurs in a separate opinion.

MATTHEW D. ROWEN (Paul D. Clement, Erin E. Murphy, Trevor W. Ezell, Nicholas M. Gallagher, on the brief), Clement & Murphy, PLLC, Alexandria, VA, for Plaintiffs- Appellants.

DENNIS FAN, Senior Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Ester Murdukhayeva, Deputy Solicitor General, on the brief), for Letitia James, Attorney General, State of New York, New York, NY, for Defendant-Appellee.

Lawson E. Fite, Marten Law LLP, Portland, OR, for Professor Albert Lin, amicus curiae in support of Defendant- Appellee.

Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, Miriam Becker-Cohen, Constitutional Accountability Center, Washington, DC, for the Constitutional

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Accountability Center, amicus curiae in support of Defendant- Appellee.

Patrick Derocher, Cate Baskin, Steven Wickman, Arnold & Porter Kaye Scholer LLP, Chicago, IL; Michael D. Schissel, Lisa Cordara, W. Stewart Wallace, Arnold & Porter Kaye Scholer LLP, New York, NY; Arthur Luk, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Brooklyn and Buffalo Community Activists and Gun Violence Victim Families, amici curiae in support of Defendant- Appellee.

Steven C. Wu, Chief, Appeals Division, John T. Hughes, Assistant District Attorney, for Alvin L. Bragg, Jr., District Attorney, New York County, amicus curiae in support of Defendant-Appellee.

Caitlin Halligan, Adam K. Hersh, Ekaterina Stynes, Zachary Smith, Selendy Gay Elsberg PLLC, New York, NY, for Everytown for Gun Safety Support Fund, Giffords Law Center to Prevent Gun Violence, Brady, and New Yorkers Against Gun Violence, amici curiae in support of Defendant- Appellee.

Jennifer E. McDonald, Downs Rachlin Martin PLLC, Burlington, VT, for Ryan Busse, amicus curiae in support of Defendant-Appellee.

Sarah A. Hunger, Deputy Solicitor General, for Jane Elinor Notz, Solicitor General of the State of Illinois, Chicago, IL; Anna W. Gottlieb, Assistant Attorney General, for Kwame Raoul, Attorney General of the State of Illinois, Chicago, IL, et al., for Illinois, California, Connecticut, Delaware, District Of Columbia, Hawai’i, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont,

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Washington, and Wisconsin, amici curiae in support of Defendant-Appellee.

Ryan K. Quillian, Covington & Burling LLP, Washington, DC, for Doctor Daniel W. Webster, amicus curiae in support of Defendant-Appellee.

Richard Dearing, Claude S. Platton, Jonathan Schoepp- Wong, of Counsel, for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY, for the City of New York and the Cities of Buffalo, Rochester, and Syracuse, amici curiae in support of Defendant- Appellee.

James R. Saywell, Jones Day, Cleveland, OH; Noel J. Francisco, C. Kevin Marshall, Brett J. Wierenga, Jones Day, Washington, DC, for the National Rifle Association of America, Inc., amicus curiae in support of Plaintiffs- Appellants.

Austin Knudsen, Attorney General, David M.S. Dewhirst, Solicitor General, Kathleen L. Smithgall, Assistant Solicitor General, Montana Department of Justice, Helena, MT, for Montana and 19 Other States, amici curiae in support of Plaintiffs-Appellants.

EUNICE C. LEE, Circuit Judge:

National Shooting Sports Foundation (“NSSF”), a trade association of

manufacturers and wholesalers of firearms, and fourteen of its members

(collectively, “Appellants”), appeal from an order and judgment entered in the

United States District Court for the Northern District of New York (D’Agostino, J.)

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dismissing their complaint challenging New York’s gun-related public nuisance

statute, N.Y. General Business Law § 898-a–e, which imposes liability for gun

industry members who knowingly or recklessly endanger the safety or health of

the public through their sale or marketing of firearms. The complaint alleges that

Section 898 is unconstitutional because it is preempted by the federal Protection of

Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. §§ 7901–7903, violates the

dormant Commerce Clause, and is so vague as to violate the Due Process Clause

of the Fourteenth Amendment. The district court granted judgment in favor of

New York’s Attorney General, Letitia James, in her official capacity (the “State”),

because it determined that Section 898 is neither preempted by PLCCA nor

constitutionally infirm. On appeal, we find that Appellants have not met their

burden in this facial, preenforcement challenge to demonstrate that Section 898 is

unenforceable in all its applications. We further conclude that, on its face, Section

898: (1) falls within PLCAA’s predicate exception clause and thus is not

preempted, (2) does not violate the principles of interstate commerce, and (3) is

not void for vagueness. Therefore, we AFFIRM the judgment of the district court.

BACKGROUND

I. Statutory and Legal Landscape

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We begin with a brief overview of the relevant statutes and legal precedents

governing civil liability for gun manufacturers and distributors in New York.

PLCAA is a federal statute enacted in 2005 “to prohibit causes of action”

against gun industry members 1 “for the harm solely caused by the criminal or

unlawful misuse of firearm products or ammunition products by others when the

product functioned as designed and intended.” 15 U.S.C. § 7901(b)(1). More

specifically, it bars any “qualified civil liability action,” defined as:

a civil action . . . brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.

Id. §§ 7902(a), 7903(5)(A). In other words, PLCAA generally establishes that gun

manufacturers and distributors cannot be held civilly liable for harm caused by

their products when that harm stems from the criminal or unlawful actions of

others.

1While PLCAA does not use the term “gun industry member,” Section 898 does. For purposes of this opinion, “gun industry member” refers to entities “engaged in the sale, manufacturing, distribution, importing or marketing of firearms, ammunition, ammunition magazines, and firearms accessories,” N.Y. Gen. Bus. Law § 898-a(4), to which both PLCAA and Section 898 apply. See also 15 U.S.C. § 7901(b)(1).

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However, as relevant here, PLCAA provides that qualified civil liability

actions do not include actions in which a gun industry member “knowingly

violated a State or Federal statute applicable to the sale or marketing of” firearms,

and where “the violation was a proximate cause of the harm” alleged. Id.

§ 7903(5)(A)(iii). This provision is referred to as PLCAA’s “predicate exception”

because it applies only where the manufacturer or seller has committed “an

underlying (or predicate) statutory violation.” Dist. of Columbia v. Beretta U.S.A.

Corp., 940 A.2d 163, 168 (D.C. 2008); see also City of New York v. Beretta U.S.A. Corp.,

524 F.3d 384, 390 (2d Cir. 2008) (adopting the appellation).

The parties here disagree as to the purposes of PLCAA and its predicate

exception. Appellants, relying on the statement of purposes provided in the

statute itself, argue that the statute was intended to end attenuated theories of

liability for gun manufacturers and distributors. See Appellants’ Br. at 6–7 (citing

15 U.S.C. § 7901(b)(1)). The State, pointing to the congressional findings recited in

the statute, suggests that the legislation was intended to prevent “a maverick

judicial officer or petit jury” from using courts to circumvent legislation by

imposing expansive common-law liability on gun manufacturers and distributors

through theories that have not been approved by Congress or state legislatures.

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See Appellee’s Br. at 6 (citing 15 U.S.C. § 7901(a)(7)–(8)); see also 15 U.S.C.

§ 7901(b)(6) (identifying as a purpose of PLCAA “[t]o preserve and protect the

Separation of Powers doctrine and important principles of federalism, State

sovereignty and comity between sister States”). Thus, while Appellants view

PLCAA’s purpose as primarily substantive—to insulate gun manufacturers and

distributors from excess liability—the State views it as structural and procedural—

to preserve the balance of power between legislatures and the judiciary and to

ensure that gun industry members are not exposed to liability without proper

notice via a legislative enactment. As demonstrated above, there is some support

for both views among PLCAA’s enumerated findings and purposes. See 15 U.S.C.

§ 7901(a)–(b).

We previously addressed the purpose and scope of PLCAA’s predicate

exception in the context of a nuisance action brought by New York City (“the

City”) against firearms manufacturers and sellers. See Beretta, 524 F.3d at 398–404.

In 2000, before PLCAA was enacted, the City sued manufacturers and wholesale

sellers of firearms under New York Penal Law § 240.45 (criminal nuisance in the

second degree), alleging that these firearms suppliers caused, contributed to, and

maintained a public nuisance by knowingly supplying the illegal firearms market.

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Id. at 389. On the day that PLCAA was enacted in 2005, the defendants in Beretta

moved to dismiss the case as barred by the statute. Id. In response, the City

claimed that the suit fell within PLCAA’s predicate exception since New York

Penal Law § 240.45 qualified as a predicate statute “applicable to the sale or

marketing of [firearms],” id. at 389–90 (quoting 15 U.S.C. § 7903(5)(A)(iii)), and the

defendants’ knowing violation of the statute was the proximate cause of the harm

alleged. The district court found that the suit fell within PLCAA’s predicate

exception, and we reversed. Id. at 390, 404.

Because both parties in Beretta agreed that New York’s general nuisance

statute was a statute of general applicability which had never been applied to

firearms suppliers for conduct akin to that complained of by the City, we found

that it was not a statute “applicable to the sale or marketing of [firearms].” 15

U.S.C. § 7903(5)(A)(iii). We further explained that the predicate exception was

intended “to apply only to statutes that actually regulate the firearms industry,”

namely those that: (a) “expressly regulate firearms,” (b) have been applied by

courts “to the sale and marketing of firearms,” or (c) “do not expressly regulate

firearms but . . . clearly can be said to implicate the purchase and sale of firearms.”

Beretta, 524 F.3d at 404. In other words, civil liability actions brought against

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firearms manufacturers under statutes of general applicability which do not fall

within any of the three enumerated categories are preempted by the claim-

restricting provisions of PLCAA. See 15 U.S.C. §§ 7902(a), 7903(3), 7903(5)(A).

In July 2021, New York enacted General Business Law Section 898—a gun-

specific public nuisance statute—that imposes liability for gun industry members

who knowingly or recklessly endanger the safety or health of the public through

their sale or marketing of firearms. Section 898-b states:

(1) No gun industry member, by conduct either unlawful in itself or unreasonable under all the circumstances shall knowingly or recklessly create, maintain or contribute to a condition in New York state that endangers the safety or health of the public through the sale, manufacturing, importing or marketing of a qualified product.

(2) All gun industry members who manufacture, market, import or offer for wholesale or retail sale any qualified product in New York state shall establish and utilize reasonable controls and procedures to prevent its qualified products from being possessed, used, marketed or sold unlawfully in New York state.

N.Y. Gen. Bus. Law § 898-b(1)–(2).

Section 898-b was designed to fall within PLCAA’s predicate exception by

serving as “a predicate statute that is applicable to the sale or marketing of

firearms.” Sponsor Mem., 2021 S.B. 7196, 244th Leg., 2021 Reg. Sess. (N.Y. 2021)

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(internal quotation marks omitted). Through Section 898, the State sought to create

a pathway to hold gun industry members civilly liable for their own illegal or

unreasonable conduct where that conduct contributed to a public health crisis of

gun violence.

In practical effect, 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.

N.Y. Gen. Bus. Law §§ 898-b, 898-e.

II. Procedural History

In December 2021, Appellants brought a preenforcement challenge to

Section 898 against the State. Each appellant is a gun industry member that ships

or transports firearms and ammunition directly into New York.

Appellants sought a preliminary injunction as well as declaratory and

injunctive relief barring enforcement of the statute. They asserted that Section 898

is preempted by PLCAA because it is an “undisguised state effort to reinstate what

federal law expressly forbids.” Appellants’ Br. at 2 (internal quotation marks

omitted). Specifically, Appellants contended that Section 898 is no different from

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the City’s prior attempt, rejected in Beretta, to hold gun industry members liable

under a generally applicable nuisance law. Moreover, Appellants contended that

Section 898 is unconstitutional because it regulates solely interstate commerce, in

violation of the dormant Commerce Clause, and is unconstitutionally vague, in

violation of the Due Process Clause. The State moved to dismiss.

In May 2022, the district court granted the State’s motion to dismiss and

denied Appellants’ motion for preliminary injunction, determining that Section

898 is not preempted by PLCAA, does not violate the dormant Commerce Clause,

and is not void for vagueness. See Nat'l Shooting Sports Found., Inc. v. James, 604 F.

Supp. 3d 48 (N.D.N.Y. 2022).

The district court explained that there was no express preemption because

Section 898 directly regulates firearms and therefore falls within the predicate

exception, unlike the general nuisance law at issue in Beretta. Id. at 57–60. The

district court additionally concluded that there was no implied conflict

preemption because Section 898 does not conflict with the overall purpose and

objective of PLCAA, which, it found, is to ensure that generally applicable laws

are not used to create novel and attenuated theories of liability for the gun industry

without notice. Id. at 60–61.

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As for the dormant Commerce Clause challenge, the district court

concluded that there was no discrimination against out-of-state commerce because

Section 898 treats interstate and intrastate commerce the same and because

plaintiffs did not allege the existence of any wholly in-state commerce that could

hypothetically receive an unfair advantage. Id. at 62–63. The district court also

determined that there was no undue burden on interstate commerce under the Pike

balancing test, which requires an element of favoritism towards intrastate

commerce. Id. at 63–64 (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

Finally, the district court found no impermissible regulation of wholly out-of-state

commercial activity or violation of extraterritoriality principles because it

concluded that Section 898 does not materially differ from most other state

statutes, which in some way have repercussions beyond state lines. Id. at 64–65.

Lastly, the district court found that Section 898 is not void for vagueness

because it gives sufficient notice to a reasonable person of what is prohibited. Id.

at 65–69. The district court noted that even if a vagueness issue existed, it was not

clear that Section 898 would be unconstitutional in all its applications, and a facial

challenge therefore could not succeed. Id. at 69.

This appeal followed.

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DISCUSSION

I. Standard of Review

We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss

for failure to state a claim, “accepting all factual allegations in the complaint as

true, and drawing all reasonable inferences in the plaintiff’s favor.” Shomo v. City

of New York, 579 F.3d 176, 183 (2d Cir. 2009) (quoting Chambers v. Time Warner, Inc.,

282 F.3d 147, 152 (2d Cir. 2002)).

II. Classifying Plaintiffs’ Challenge

As a preliminary matter, the parties disagree as to whether Appellants have

brought a facial or as-applied challenge to Section 898. In the complaint,

Appellants sought “declaratory and injunctive relief to have [Section 898] declared

unconstitutional and to prevent the State . . . from enforcing it.” App’x 15, ¶ 8.

Indeed, Appellants’ pleadings repeatedly characterized their challenge as “facial.”

See id. at 31 ¶ 84, 33 ¶ 98, 34 ¶ 106. On appeal, however, Appellants argue both

that Section 898 is entirely unconstitutional, see Appellants’ Br. at 20 (“§ 898 is a

compendium of constitutional problems that should not be permitted to stand”),

and that it should be invalidated “to the extent it is preempted by the PLCAA;

directly regulates out-of-state commerce; discriminates against and unduly

burdens interstate commerce; and is void for vagueness,” Appellants’ Reply Br. at

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4. Appellants suggest that their claims “have characteristics of both facial and as-

applied challenges” because they challenge “discrete and well-defined” potential

applications of Section 898 that are “likely to occur.” Id. at 4–5 (internal quotation

marks omitted and alterations adopted). Indeed, at oral argument, Appellants at

times conceded that they had brought a facial challenge, while also characterizing

it as a “hybrid” as-applied facial claim. See Oral Arg. Tr. 6, 21, 22.

“The line between facial and as-applied challenges can sometimes prove

amorphous[.]” Bucklew v. Precythe, 587 U.S. 119, 139 (2019) (internal quotation

marks omitted). Generally, however, a challenge to a statute before its

enforcement will presumptively constitute a facial challenge. See N.Y. State Rifle &

Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015) (“Because plaintiffs

pursue this ‘pre-enforcement’ appeal before they have been charged with any

violation of law, it constitutes a ‘facial,’ rather than ‘as-applied,’ challenge.”).

Prospective as-applied challenges are considered “comparatively

infrequently” and “seek[] to prove that a statute cannot constitutionally be applied

to a specific course of conduct that the challenger intends to follow.” Copeland v.

Vance, 893 F.3d 101, 112 (2d Cir. 2018). Such challenges generally must focus on

specific conduct that the plaintiff “would pursue but for fear of future

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enforcement.” Id. at 112–13 (concluding that a challenge to New York’s gravity

knife law more closely resembled a facial challenge than an as-applied challenge

because the plaintiffs sought a declaration that the statute could not be

constitutionally applied to anyone carrying a certain category of knife, rather than

a tailored declaration that the statute could not be applied to specific knives that

plaintiffs wished to carry). Challengers bringing preenforcement as-applied

challenges cannot rely on hypothetical situations. VIP of Berlin, LLC v. Town of

Berlin, 593 F.3d 179, 189 (2d Cir. 2010) (holding that in the context of an as-applied

challenge, “a court should not analyze whether a reasonable person would

understand that certain hypothetical conduct or situations violate the statute”).

Here, because Appellants have not identified a specific course of action they would

follow but for fear of Section 898’s enforcement, they have not brought an as-

applied challenge. 2 Accordingly, Appellants’ challenge is properly characterized

as facial, notwithstanding their new appellate suggestions to the contrary.

2In their complaint, Appellants alleged only the following: (1) “Defendant James has not disavowed future enforcement [of] the Act. To the contrary, Defendant James has stated that she ‘look[s] forward to enforcing the Public Nuisance law’”; and (2) “Given Defendant James’s stated intention to enforce the Act, each of the fourteen Firearm Industry Members named as Plaintiffs presently and reasonably fears imminent prosecution under the Act.” App’x 20 ¶¶ 31, 33.

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“[C]lassifying a lawsuit as facial or as-applied affects the extent to which the

invalidity of the challenged law must be demonstrated and the corresponding

‘breadth of the remedy,’ but it does not speak at all to the substantive rule of law

necessary to establish a constitutional violation.” Bucklew, 587 U.S. at 138 (quoting

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010)). Facial challenges

are disfavored. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,

450 (2008) (recognizing that courts should “[e]xercis[e] judicial restraint in a facial

challenge”). Such challenges “run contrary to the fundamental principle of

judicial restraint that courts should neither anticipate a question of constitutional

law in advance of the necessity of deciding it nor formulate a rule of constitutional

law broader than is required by the precise facts to which it is to be applied.”

Dickerson v. Napolitano, 604 F.3d 732, 741 (2d Cir. 2010) (quoting Wash. State Grange,

552 U.S. at 450).

Since Appellants have brought a facial constitutional challenge seeking a

declaration that Section 898 is unenforceable in all its applications, they must

establish that the law cannot be constitutionally applied against anyone in any

situation. “A facial challenge is ‘the most difficult challenge to mount successfully’

because, as a general matter, ‘the challenger must establish that no set of

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circumstances exists under which the Act would be valid.’” Copeland, 893 F.3d at

110 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)); accord United States

v. Rahimi, 602 U.S. 680, 693 (2024) (confirming the difficulty of sustaining a facial

challenge).

III. The Preemption Challenge

Appellants argue that Section 898 is preempted by PLCAA, and thus

violates the Supremacy Clause, because it aims to frustrate PLCAA’s purpose or

might otherwise permit civil actions barred by PLCAA.

The Supremacy Clause of the United States Constitution provides that

federal law “shall be the supreme Law of the Land.” U.S. Const. art. VI, cl. 2.

“Consistent with that command, . . . state laws that conflict with federal law are

without effect.” Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (internal quotation

marks omitted). “[T]he purpose of Congress is the ultimate touchstone in every

pre-emption case.” Id. (internal quotation marks omitted) (quoting Medtronic, Inc.

v. Lohr, 518 U.S. 470, 485 (1996)).

There are three types of preemption:

(1) express preemption, where Congress has expressly preempted local law; (2) field preemption, “where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law”; and (3) conflict preemption, where

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local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an obstacle to the achievement of federal objectives.

N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 2010) (quoting

Wachovia Bank, N.A. v. Burke, 414 F.3d 305, 313 (2d Cir. 2005)). Here, Appellants

allege that there is express preemption and implied conflict preemption.

Specifically, Appellants argue that Section 898 is expressly preempted by

PLCAA because it allows precisely the type of civil liability action proscribed by

PLCAA and does not fall within the scope of PLCAA’s predicate exception.

Alternatively, Appellants argue that even if Section 898 does fall within the scope

of the predicate exception, it is impliedly preempted because it may authorize

lawsuits that do not comply with the “knowing violation” and “proximate cause”

requirements of that exception, and thus irreconcilably conflicts with PLCAA. We

address each argument in turn.

A. Express Preemption

In Appellants’ view, Section 898 is expressly preempted by PLCAA because

its aim is to subvert Congress’s core mission in enacting the statute: ending liability

for gun manufacturers “under vague standards with no historical pedigree.”

Appellants’ Br. at 29. As noted above, a stated purpose of PLCAA is to

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significantly limit the liability of gun manufacturers and sellers by eliminating

suits stemming from the unlawful misuse of firearms by third parties. See 15

U.S.C. § 7901(b)(1). Appellants contend that state statutes enshrining such theories

of liability are “blatant end-run[s] around federal law” that cannot stand.

Appellants’ Br. at 19 (“The point of the PLCAA was most certainly not to prompt

states to codify the nuisance theories the PLCAA aimed to eradicate.”). 3

The State emphasizes that preemption “fundamentally is a question of

congressional intent,” Appellee’s Br. at 20 (quoting Geier v. Am. Honda Motor Co.,

529 U.S. 861, 884 (2000)), and asserts that PLCAA was not intended to offer the gun

industry blanket immunity for the misuse of firearms. Rather, in its view,

Congress intended to “vest the primary authority to regulate the gun industry in

federal and state legislatures acting in their representative capacities, rather than

federal or state judiciaries acting in their common law capacities.” Id. at 2; see also

3Appellants make much of the fact that various State officials have expressly stated that, in their view, the purpose of Section 898 is to override PLCAA. See, e.g., App’x 14–15 ¶ 6 (citing comments by Defendant James describing PLCAA as an example of “federal overreach” and characterizing Section 898 as an “important step to right [the] wrong” done by enacting PLCAA); Appellants’ Br. at 23 (citing comments by then-Governor Andrew Cuomo stating that Section 898 would reinstate civil liability for gun manufacturers and distributors, thus “right[ing] the wrong done” by PLCAA). But whatever the views of various State officials regarding the purpose of Section 898, the question before this Court is whether the statute as written and enforced is preempted by PLCAA. The State’s intent, ultimately, is irrelevant.

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id. at 31 (observing that PLCAA was enacted in part to preclude the creation of

new forms of civil liability by the judiciary, without the approval of Congress or

state legislatures, through unauthorized “expansion of the common law” (quoting

18 U.S.C. § 7901(a)(7)). The State maintains that it is perfectly proper for a state

legislature, as opposed to “a maverick judicial officer or petit jury,” to “expand

civil liability” for gun manufacturers, in accordance with important principles of

federalism and state sovereignty. Appellee’s Br. at 6 (quoting 15 U.S.C.

§ 7901(a)(6), (7)).

Neither the parties nor this Court can divine Congress’s purpose in passing

PLCAA beyond those aims expressly stated. See Va. Uranium, Inc. v. Warren, 587

U.S. 761, 778–79 (2019) (explaining that “[e]fforts to ascribe unenacted purposes

and objectives” to a statute “invites speculation” and “risk[s] displacing the

legislative compromises actually reflected in the statutory text,” and emphasizing

that “[t]he only thing a court can be sure of is what can be found in the law itself”).

Here, PLCAA’s text identifies as a legislative aim ending the use of “theories

without foundation [that] do not represent a bona fide expansion of the common

law” to “impos[e] liability on an entire industry for harm that is solely caused by

others,” as well as “attempt[s] to use the judicial branch to circumvent the

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Legislative branch of government.” 15 U.S.C. § 7901(a)(6)–(8). And, as we have

noted before, the statute’s legislative history reinforces our understanding of this

aim by indicating that Congress intended PLCAA to end the use of generally

applicable laws to create new and attenuated theories of civil liability for the gun

industry, but not to protect those manufacturers who violate state or federal laws.

See Beretta, 524 F.3d at 402–04 (explaining that “Congress clearly intended to

protect from vicarious liability members of the firearms industry who engage in

the lawful design, manufacture, marketing, distribution, importation, or sale of

firearms,” in compliance with existing federal, state, and local laws (emphasis

added) (internal quotation marks omitted)). Taken together, PLCAA’s text and

history therefore do not clearly establish that the statute’s aim was to prevent state

legislatures from creating avenues to hold gun manufacturers liable for

downstream harms caused by their products.

In fact, as noted by the State, the existence of the predicate exception

evidences Congress’s intent to preserve at least some causes of action flowing from

knowing violations of state and federal laws applicable to the sale or marketing of

firearms. See Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 145 S. Ct.

1556, 1562 (2025) (noting that “the predicate violation opens a path to making a

22 22-1374-cv National Shooting Sports Foundation, Inc. v. James

gun manufacturer civilly liable for the way a third party has used the weapon it

made,” where that manufacturer has knowingly committed a predicate offense).

In Beretta, we concluded that PLCAA’s predicate exception encompassed statutes

that expressly regulated firearms, statutes that courts have applied to the sale and

marketing of firearms, and statutes that do not expressly regulate firearms but that

clearly can be said to implicate the sale and purchase of firearms. 524 F.3d at 404. 4

Because Section 898 expressly regulates firearms, it falls within those bounds.

Appellants, however, suggest that in order to qualify as a predicate statute,

a given law must expressly regulate firearms with the same specificity as the two

examples of qualifying statutes provided in PLCAA’s text. Those examples

include statutes authorizing: (1) suits against manufacturers who knowingly

falsify or fail to keep records related to the sale of firearms, and (2) suits against

manufacturers who aid, abet, or conspire to sell firearms to individuals prohibited

from receiving them under 18 U.S.C. § 922(g) or (n). 5 Appellants argue that neither

4 A year after Beretta, the Ninth Circuit also considered the scope of the predicate exception. See Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009). Citing Beretta, the court held that predicate statutes generally must pertain specifically to sales and manufacturing activities and often will target the firearm industry specifically, although they need not pertain exclusively to the firearms industry. Id. at 1134–35.

5The specific examples given are: (1) “any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record

23 22-1374-cv National Shooting Sports Foundation, Inc. v. James

of these provisions is similar in kind to Section 898’s general requirement that

firearm manufacturers and sellers maintain reasonable operations. See N.Y. Gen.

Bus. Law § 898-b(2) (requiring gun industry members to “establish and utilize

reasonable controls and procedures to prevent its qualified products from being

possessed, used, marketed or sold unlawfully in New York state”). They further

suggest that the predicate exception should apply only to statutes that impose

concrete obligations or prohibitions on gun industry members’ conduct, rather

than general duties of care. Any alternative interpretation, they argue, would

“effectively gut the PLCAA” by allowing the exception to swallow the rule.

Appellants’ Br. at 24, 28.

But in Beretta, we repeatedly refuted this reasoning and rejected the idea that

the predicate exception’s enumerated examples are exhaustive. In determining

how to construe the phrase “statute applicable to the sale or marketing of

required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product”; and (2) “any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of Title 18.” See 15 U.S.C. § 7903(5)(A)(iii)(I)–(II).

24 22-1374-cv National Shooting Sports Foundation, Inc. v. James

[firearms],” this Court noted that “the examples of state and federal statutory

violations in the predicate exception itself refer to state and federal laws that

specifically and expressly govern firearms” but then rejected the argument that

“the predicate exception is [therefore] necessarily limited to statutes that expressly

regulate the firearms industry.” Beretta, 524 F.3d at 400; see also id. at 401, 404.

Thus, we have already determined that the predicate exception’s scope is not

limited to causes of action brought under statutes similar to the enumerated

examples in 15 U.S.C. § 7903(5)(A)(iii)(I)–(II). Rather, we have found that limiting

the predicate exception to statutes (1) that expressly regulate firearms, (2) that

courts have applied to the sale and marketing of firearms, and (3) that clearly can

be said to implicate the sale and purchase of firearms, is sufficient to avoid

“allow[ing] the predicate exception to swallow the statute.” Id. at 403.

And, even if Beretta had not already adopted a construction of the statute

that implicitly rejects Appellants’ position, PLCAA’s text does not support

Appellants’ argument. See Buono v. Tyco Fire Prods., LP, 78 F.4th 490, 495 (2d Cir.

2023) (explaining that, in the context of express preemption, “the plain wording of

the [statute] . . . necessarily contains the best evidence of Congress’ preemptive

intent”); see also United States v. Kozeny, 541 F.3d 166, 171 (2d Cir. 2008) (explaining

25 22-1374-cv National Shooting Sports Foundation, Inc. v. James

that statutory construction “must begin with the language employed by Congress

and the assumption that the ordinary meaning of that language accurately

expresses the legislative purpose” (quoting United States v. Albertini, 472 U.S. 675,

680 (1985)).

PLCAA excepts from the definition of a qualified civil liability action any

“action in which a manufacturer or seller of a qualified product knowingly

violated a State or Federal statute applicable to the sale or marketing of the

product, and the violation was a proximate cause of the harm for which relief is

sought, including” the enumerated exceptions. 15 U.S.C. § 7903(5)(A)(iii)

(emphasis added). The term “includes” is typically interpreted as “a term of

enlargement, and not of limitation.” Burgess v. United States, 553 U.S. 124, 131 n.3

(2008) (internal quotation marks omitted). Where “including” is used to introduce

a list of examples, such examples are to be viewed as “illustrative, not exhaustive.”

Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 162 (2012); see also Pfizer, Inc.

v. U.S. Dep’t of Health & Human Servs., 42 F.4th 67, 76 (2d Cir. 2022) (concluding

that, because the listed examples were preceded by the term “including,” they

were “merely non-exhaustive examples” that did not limit the scope of the

statutory provision).

26 22-1374-cv National Shooting Sports Foundation, Inc. v. James

Therefore, because Section 898 falls within the bounds of PLCAA’s

predicate exception as written, it is not expressly preempted.

B. Implied Conflict Preemption

Appellants also contend that, even if Section 898 falls within the predicate

exception, it is nevertheless impliedly preempted because it imposes liability

without the exception’s explicit “knowing violation” or “proximate cause”

requirements, thereby potentially permitting PLCAA-barred civil liability

actions. 6 Compare 15 U.S.C. § 7903(5)(A)(iii) (allowing suits in which

“a manufacturer or seller of a qualified product knowingly violated a State or

Federal statute applicable to the sale or marketing of the product, and the violation

was a proximate cause of the harm for which relief is sought”) with N.Y. Gen. Bus.

Law § 898-b(1)–(2) ((1) prohibiting gun industry members from knowingly or

recklessly creating, maintaining, or contributing to a public nuisance through the

sale or marketing of firearms, and (2) requiring gun industry members to establish

6 The State argues that this argument has been forfeited because Appellants did not raise it below, while Appellants contend that the argument “is subsumed within the broader preemption claim” they raised before the district court, Reply Brief at 12 n.3. Because the argument is arguably part of the general preemption claim consistently raised by Appellants throughout the course of this litigation, we address its merits here.

27 22-1374-cv National Shooting Sports Foundation, Inc. v. James

and utilize reasonable controls and procedures to prevent unlawful possession,

use, marketing, or sale of their products).

We understand this to be a conflict preemption argument. Conflict

preemption arises in two scenarios: (1) “where it is impossible for a private party

to comply with both state and federal requirements”; or (2) “where state law

stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of Congress.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)

(internal quotation marks omitted). Conflict preemption is a “form[] of implied

preemption.” Figueroa v. Foster, 864 F.3d 222, 228 (2d Cir. 2017).

We find that the alleged incongruence between Section 898 and PLCAA’s

predicate exception—specifically, the lack of an express knowing or proximate

cause requirement in Section 898—is insufficient to sustain Appellants’ claim of

conflict preemption in this facial challenge. “[W]hen plaintiffs bring a facial

preemption challenge to a state law, they must demonstrate that there is no

possible set of conditions under which the challenged state regime could be

constitutional.” Rest. L. Ctr. v. City of New York, 90 F.4th 101, 117–18 (2d Cir. 2024)

(alterations adopted and internal quotation marks omitted) (declining to find facial

preemption based on a speculative application of the challenged law and noting

28 22-1374-cv National Shooting Sports Foundation, Inc. v. James

that “nothing would prohibit a successor from raising the preemption issue in a

future as-applied challenge”). In other words, a facial challenge to a state statute

involves a claim that the law “is invalid in toto—and therefore incapable of any

valid application.” Steffel v. Thompson, 415 U.S. 452, 474 (1974) (internal quotation

marks omitted). Such a challenge fails where, as here, a statute has “a plainly

legitimate sweep.” Wash. State Grange, 552 U.S. at 449 (internal quotation marks

omitted). 7

The Supreme Court has cautioned against speculating about hypothetical or

imaginary cases in which a law might be invalid, especially when state courts

“have had no occasion to construe the law” or “to accord the law a limiting

construction to avoid constitutional questions.” Wash. State Grange, 552 U.S. at

450. So, while Appellants are correct that Section 898 does not expressly

incorporate the predicate exception’s mens rea and causation requirements, the

pertinent consideration, for present purposes, is that it does not contravene them.

7 It is plainly possible to bring an action under Section 898 that would fulfill the “knowing” and “proximate cause” requirements of the predicate exception. For example, both Section 898 and the predicate exception would allow a civil suit brought by a victim of a shooting against a gun manufacturer, if that shooting were proximately caused by a gun manufacturer’s knowing failure to conduct background checks on potential customers and its unlawful sale of a firearm to the perpetrator of the shooting, who could not lawfully procure a firearm. See 15 U.S.C. § 7903(5)(A)(iii)(II); N.Y. Gen. Bus. Law § 898-b(2).

29 22-1374-cv National Shooting Sports Foundation, Inc. v. James

Without the benefit of particular instances of enforcement, we decline to

make any pronouncement about future cases in which litigants might invoke

Section 898 without proving knowledge or proximate cause. At this stage, we find

only that Section 898 is not impliedly preempted by PLCAA simply because it

lacks express knowledge and proximate cause requirements.

IV. The Dormant Commerce Clause Challenge

Next, Appellants claim that Section 898 violates the dormant Commerce

Clause because it impermissibly regulates interstate commerce in a variety of

ways.

The Commerce Clause grants Congress the power “[t]o regulate Commerce

. . . among the several States.” U.S. Const., art. I, § 8, cl. 3. The dormant Commerce

Clause is “a doctrine inferred from the Commerce Clause” and serves as “a

‘restriction on permissible state regulation,’” Entergy Nuclear Vt. Yankee, LLC v.

Shumlin, 733 F.3d 393, 429 (2d Cir. 2013) (quoting Hughes v. Oklahoma, 441 U.S. 322,

326 (1979)), which has been understood to “limit[] the power of local governments

to enact laws affecting interstate commerce,“ Town of Southold v. Town of E.

Hampton, 477 F.3d 38, 47 (2d Cir. 2007). “The negative or dormant implication of

the Commerce Clause prohibits state . . . regulation . . . that discriminates against

or unduly burdens interstate commerce and thereby impedes free private trade in

30 22-1374-cv National Shooting Sports Foundation, Inc. v. James

the national marketplace.” Gen. Motors Corp. v. Tracy, 519 U.S. 278, 287 (1997)

(internal quotation marks and citations omitted). It also “precludes the application

of a state statute to commerce that takes place wholly outside of the State’s borders,

whether or not the commerce has effects within the State.” Healy v. Beer Inst., Inc.,

491 U.S. 324, 336 (1989) (quoting Edgar v. MITE Corp., 457 U.S. 624, 642–43 (1982)).

Importantly, the dormant Commerce Clause’s scope is not

“absolute.” Maine v. Taylor, 477 U.S. 131, 138 (1986). Rather, states retain “broad

power” to legislate and regulate, even in ways that may “bear adversely upon

interstate commerce.” H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 531–32

(1949). “And courts are not to wield the dormant Commerce Clause as ‘a roving

license . . . to decide what activities are appropriate for state and local government

to undertake.’” Rest. L. Ctr., 90 F.4th at 118 (quoting Nat'l Pork Producers Council v.

Ross, 598 U.S. 356, 380 (2023) (Gorsuch, J., plurality opinion)).

A state statute violates the dormant Commerce Clause if it: (1) “clearly

discriminates against interstate commerce in favor of intrastate commerce”; (2)

“imposes a burden on interstate commerce incommensurate with the local benefits

secured”; or (3) “has the practical effect of extraterritorial control of commerce

occurring entirely outside the boundaries of the state in question.” Grand River

31 22-1374-cv National Shooting Sports Foundation, Inc. v. James

Enters. Six Nations, Ltd. v. Boughton, 988 F.3d 114, 123 (2d Cir. 2021) (internal

quotation marks omitted); see also Healy, 491 U.S. at 336; Pike, 397 U.S. at 142.

In a facial challenge, a plaintiff must show that there is no set of

circumstances under which the challenged statute would be valid under the

dormant Commerce Clause. See United States v. Decastro, 682 F.3d 160, 168 (2d Cir.

2012). Appellants allege that Section 898 violates the dormant Commerce Clause

in each of the three ways outlined above. We address each argument in turn.

A. Facial Discrimination

If a state law “clearly discriminates against interstate commerce in favor of

intrastate commerce,” it “is virtually invalid per se and will survive only if it is

‘demonstrably justified by a valid factor unrelated to economic protectionism.’”

Town of Southold, 477 F.3d at 47 (quoting Wyoming v. Oklahoma, 502 U.S. 437, 454

(1992)).

Appellants argue that Section 898 facially discriminates against interstate

commerce because it applies only to products that pass through interstate

commerce, and therefore impermissibly privileges intrastate commerce. They

initially noted that Section 898 defined “qualified product” using PLCAA’s

definition: “a firearm, . . . ammunition . . . , or a component part [thereof] that has

32 22-1374-cv National Shooting Sports Foundation, Inc. v. James

been shipped or transported in interstate or foreign commerce.” 15 U.S.C.

§ 7903(4); see also A.B. 7555-A, 2024 Sess. Law News of N.Y. Ch. 123 (N.Y. 2024)

(noting that prior to June 28, 2024, the term “[q]ualified product” had “the same

meaning as defined in 15 U.S.C. section 7903(4)”).

This issue need not detain us for long. The State submitted a letter after oral

argument informing us that the New York State Legislature had amended the

definition of “qualified product” to omit any cross-reference to the definition of

“qualified product” in PLCAA. See Appellee’s 28(j) Letter ¶¶ 1–2, July 8, 2024, ECF

No. 220. The technical amendment therefore removed any reference to interstate

commerce and eliminates the basis of Appellants’ facial dormant Commerce

Clause challenge. Appellants have not responded to the State’s letter claiming

otherwise. Accordingly, the facial discrimination issue is moot.

B. Undue Burden

Even laws that do not explicitly discriminate against interstate commerce

may incidentally, and impermissibly, burden interstate commerce. See Nat’l Pork

Producers Council, 598 U.S. at 377 (explaining that “a law’s practical effects may

also disclose the presence of a discriminatory purpose”). To determine whether a

given statute imposes such a burden, we apply “the more permissive [Pike]

33 22-1374-cv National Shooting Sports Foundation, Inc. v. James

balancing test.” Town of Southold, 477 F.3d at 47. “[U]nder the Pike balancing test,

appellants must show that a statute enacted for a legitimate public purpose,

although apparently evenhanded, actually imposes [1] ‘burdens on interstate

commerce that exceed the burdens on intrastate commerce,’ . . . and that [2] those

excess burdens on interstate commerce are ‘clearly excessive in relation to the

putative local benefits.’” Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 217 (2d Cir.

2004) (first quoting Automated Salvage Transp., Inc. v. Wheelabrator Env’t Sys., Inc.,

155 F.3d 59, 75 (2d Cir. 1998), and then quoting Pike, 397 U.S. at 142).

Appellants contend that “the burdens § 898 imposes fall disproportionately

. . . on interstate (and mostly out-of-state) commerce” because, as described above,

the statute initially applied only to “qualified products,” which had been shipped

or transported in interstate or foreign commerce. Appellants’ Br. at 49–50. In their

view, the “real-world impact” of the statute is to “incentivize[] wholly in-state

commerce and disincentivize[] out-of-state commerce, which is classic

discrimination regardless of how much wholly intrastate commerce presently

exists.” Appellants’ Reply Br. at 18–19. Appellants further contend that any

putative benefits to New York do not outweigh the costs of qualified civil liability

actions prohibited by PLCAA. Finally, they argue that because a Pike inquiry is

34 22-1374-cv National Shooting Sports Foundation, Inc. v. James

necessarily fact-intensive, the district court’s dismissal of this claim at the motion-

to-dismiss stage was premature.

The State argues that Appellants’ undue burden claim was rightly dismissed

because they “identified no in-state business that [was] favored” by Section 898

and have not demonstrated that any burden imposed on interstate commerce is

clearly excessive in relation to the putative local benefits. Appellee’s Br. at 44. We

agree.

As a preliminary matter, Appellants’ argument regarding the definition of

“qualified product” has been rendered moot by the above-noted amendment to

Section 898. Moreover, Appellants’ argument that the law’s regulation of

interstate commerce, in the absence of a wholly intrastate market, is sufficient to

show discrimination against interstate commerce, see Appellants’ Br. at 41–42, is

barred by precedent. It is well established that “[t]he fact that the burden of a state

regulation falls on some interstate companies does not, by itself, establish a claim

of discrimination against interstate commerce.” Rest. L. Ctr., 90 F.4th at 120

(quoting Exxon Corp. v. Governor of Md., 437 U.S. 117, 126 (1978)); see also N.Y. Pet

Welfare Ass'n, Inc. v. City of New York, 850 F.3d 79, 91 (2d Cir. 2017) (“The Supreme

Court has considered and rejected the argument that a statute is discriminatory

35 22-1374-cv National Shooting Sports Foundation, Inc. v. James

because it will apply most often to out-of-state entities in a market that has more

out-of-state than in-state participants.” (internal quotation marks omitted)

(citing CTS Corp. v. Dynamics Corp. Of Am., 481 U.S. 69, 88 (1987))). As we have

previously explained, the dormant Commerce Clause “doctrine is animated by

‘concern about economic protectionism’ or those measures ‘designed to benefit in-

state economic interests by burdening out-of-state competitors’—not laws that

primarily regulate firms operating across state lines.” Rest. L. Ctr., 90 F.4th at 120

(quoting Dep't of Revenue of Ky. v. Davis, 553 U.S. 328, 337–38 (2008)). Here, the

mere fact that Section 898 may, in practice, apply only to gun industry members

engaged in interstate commerce because there exist no wholly intrastate gun

industry members is not sufficient to establish discrimination.

Because Section 898 does not discriminate against interstate commerce, it

will be upheld under the Pike balancing test unless the burdens it imposes on

interstate commerce are “clearly excessive in relation to the putative local

benefits.” Freedom Holdings, Inc., 357 F.3d at 217 (quoting Pike, 397 U.S. at 142).

Here, Appellants suggest that Section 898 would cause a number of generalized

harms, such as eroding public confidence in our nation’s laws, threatening

diminution of a basic constitutional right and civil liberty, inviting the disassembly

36 22-1374-cv National Shooting Sports Foundation, Inc. v. James

and destabilization of industries and economic sectors lawfully competing in the

economy, and burdening interstate and foreign commerce. Appellants’ Br. at 49–

50 (citing 15 U.S.C. § 7901(a)(6)). They further argue that these harms are clearly

excessive when weighed against the public health and safety aims underlying

Section 898. See Reply Br. at 19. These arguments fall well short of what is required

to demonstrate an undue burden under Pike. Courts are generally “ill qualified to

develop Commerce Clause doctrine dependent on . . . predictive judgments” and

should not “project[] the effect of applying the Commerce Clause” where the

economic benefits and burdens of a regulation are not clear. Gen. Motors Corp., 519

U.S. at 309. Here, in the absence of any evidence or specific findings regarding the

economic benefits and burdens of Section 898, we find no undue burden under

Pike.

C. Extraterritoriality

Finding no express discrimination against, and no undue burden on,

interstate commerce, we now consider whether Section 898 regulates “commerce

that takes place wholly outside of the State’s borders,” Healy, 491 U.S. at 336—in

other words, if it operates extraterritorially. Pivotal to Appellants’

extraterritoriality argument is the fact that exposure to Section 898 liability does

37 22-1374-cv National Shooting Sports Foundation, Inc. v. James

not require that an entity does business in New York. Accordingly, Appellants

contend that Section 898 impermissibly allows for the imposition of state-law

liability on out-of-state actors for actions taken entirely out of state. This, they

argue, is “the definition of unconstitutional extraterritorial state regulation,”

which, if allowed, will give states “carte blanche to impose their regulatory

preferences on other states.” Appellants’ Br. at 44, 50.

However, each of Section 898(b)’s subsections has a New York state nexus

requirement, notwithstanding the absence of a requirement that the subject gun

industry member does business in New York. The first subsection requires that

the business “maintain or contribute to a condition in New York state,” and the

second subsection applies to “[a]ll gun industry members who manufacture,

market, import or offer for wholesale or retail sale any qualified product in New

York state.” N.Y. Gen. Bus. Law § 898(b)(1)–(2) (emphases added). Section 898 is

therefore plainly focused on regulating conduct that occurs in or has a connection

to New York.

Appellants posit a number of hypothetical scenarios in which Section 898

could be used to regulate conduct occurring entirely in another state, or to impose

liability on manufacturers and sellers that conduct no commerce in New York. But

38 22-1374-cv National Shooting Sports Foundation, Inc. v. James

“[w]hen assessing a plaintiff’s extraterritoriality theory, we focus squarely on

whether the state law has ‘the practical effect of requiring [wholly] out-of-state

commerce to be conducted at the regulating state’s direction.’” VIZIO, Inc. v. Klee,

886 F.3d 249, 255 (2d Cir. 2018) (quoting SPGGC, LLC v. Blumenthal, 505 F.3d 183,

193 (2d Cir. 2007)); see also Healy, 491 U.S. at 336 (“The critical inquiry is whether

the practical effect of the regulation is to control conduct beyond the boundaries

of the State.” (citing Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S.

573, 579 (1986)).

Because a facial constitutional challenge seeks to strike down a statute in its

entirety, Appellants must show that Section 898 regulates wholly extraterritorial

conduct in every application of the statute in order to succeed on their

extraterritoriality claim. See Wash. State Grange, 552 U.S. at 449–50 (“In determining

whether a law is facially invalid, [courts] must be careful not to go beyond the

statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’

cases.”). Appellants have not made—and cannot make—such a showing. Each

Appellant, as the State notes, ships or transports firearms and ammunition directly

into New York. Application of Section 898 to their own conduct would therefore

not raise extraterritoriality concerns, and they have not alleged any facts that

39 22-1374-cv National Shooting Sports Foundation, Inc. v. James

would support any other inference of extraterritoriality. If Section 898, in practice,

has an impermissible extraterritorial effect, gun industry members may raise such

claims as part of an as-applied challenge. Cf. Arizona v. United States, 567 U.S. 387,

415 (2012) (explaining that when a party brings suit to challenge a law before it has

gone into effect, “[t]here is a basic uncertainty about what the law means and how

it will be enforced,” and “without the benefit of a definitive interpretation from

the state courts, it would be inappropriate to assume [the law] will be construed”

unconstitutionally).

For the foregoing reasons, we conclude that Section 898 does not violate the

dormant Commerce Clause.

V. The Vagueness Challenge

Last, Appellants argue that Section 898 is void for vagueness because it

provides insufficient notice as to what conduct is forbidden or required, effectively

requiring gun industry members to leave the industry in order to avoid liability.

The Fourteenth Amendment guarantees that no state shall “deprive any

person of life, liberty, or property, without due process of law,” U.S. Const. amend.

XIV, § 1, and entitles a person to “be informed as to what [a law] commands or

forbids.” Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007) (quoting Lanzetta v.

New Jersey, 306 U.S. 451, 453 (1939)). We “generally disfavor[]” facial vagueness

40 22-1374-cv National Shooting Sports Foundation, Inc. v. James

challenges, Dickerson, 604 F.3d at 741, because “the challenger must establish that

no set of circumstances exists under which the Act would be valid,” N.Y. State Rifle

& Pistol Ass'n., 804 F.3d at 265. “The claim in a facial challenge is that a statute is

so fatally indefinite that it cannot constitutionally be applied to anyone.” Copeland,

893 F.3d at 110.

Section 898 requires gun industry members to establish and utilize

reasonable controls to prevent unlawful possession, use, marketing, or sale of their

products in New York. It further subjects them to liability for any unreasonable or

unlawful conduct related to the sale or marketing of firearms that creates,

maintains, or contributes to a condition that endangers public health or safety.

N.Y. Gen. Bus. Law § 898-b(1)–(2). Appellants argue that Section 898’s

“reasonableness” standard is unconstitutionally vague because it does not clearly

delineate what specific reasonable controls a gun industry seller or manufacturer

must deploy in order to avoid liability. They emphasize that New York courts

have recognized that gun manufacturers “do not owe a duty to control the conduct

of third persons so as to prevent them from harming others,” People v. Sturm, Ruger

& Co., Inc., 761 N.Y.S.2d 192, 196 (N.Y. App. Div. 2003) (emphasis added) (internal

quotation marks omitted), and that Section 898 is therefore not rooted in a codified

41 22-1374-cv National Shooting Sports Foundation, Inc. v. James

or knowable body of law. Appellants also contend that Section 898 is broader and

less clear than preexisting public nuisance law because it imposes liability for

“contribut[ing] to a condition in New York state that endangers the safety or health

of the public,” Appellants’ Br. at 53 (quoting N.Y. Gen. Bus. Law § 898-b(1)), and

that such “freewheeling liability” “violate[s] basic notions of fairness,” id. at 53–

54.

The State argues that Section 898 resembles many other New York public

nuisance laws and therefore accords with common understanding and practices.

It notes that the statute specifically proscribes certain categories of conduct and

further provides illustrative examples of “reasonable controls and procedures.”

Appellee’s Br. at 53. Finally, the State notes that “reasonable” is a term used in

“countless statutes and standards,” id. at 54, and that there exist judicial

precedents regarding the meaning of the terms “reasonable” and “contribute” in

the context of public nuisance statutes, id. at 54–55.

We conclude that Appellants have not met their burden of demonstrating

that Section 898 is so “fatally indefinite” that it cannot be constitutionally applied

under any circumstances. See Copeland, 893 F.3d at 110. We agree with the State

that reasonableness is a well-established legal standard that is employed in a wide

42 22-1374-cv National Shooting Sports Foundation, Inc. v. James

range of statutes consistent with the requirements of the Due Process Clause.

Moreover, Section 898 provides examples of the types of “reasonable controls and

procedures” that gun industry members are instructed to employ:

“Reasonable controls and procedures” shall mean policies that include, but are not limited to: (a) instituting screening, security, inventory and other business practices to prevent thefts of qualified products as well as sales of qualified products to straw purchasers, traffickers, persons prohibited from possessing firearms under state or federal law, or persons at risk of injuring themselves or others; [and] (b) preventing deceptive acts and practices and false advertising and otherwise ensuring compliance with all provisions of article twenty-two-A of this chapter . . . .

N.Y. Gen. Bus. Law § 898-a(2). Though Appellants characterize these examples as

“singularly unhelpful guidance,” Appellants’ Br. at 13, we will not “strain[] to

inject doubt as to the meaning of words where no doubt would be felt by the

normal reader,” United States v. Powell, 423 U.S. 87, 93 (1975). Where the language

of a given statute is “sufficiently clear,” “the speculative danger of arbitrary

enforcement does not render the ordinance void for vagueness.” Vill. of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503 (1982).

Accordingly, Section 898 is not facially void for vagueness.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

43 DENNIS JACOBS, Circuit Judge, concurring:

With the Protection of Lawful Commerce in Arms Act (“PLCAA”), Pub. L.

No. 109-92, 119 Stat. 2095 (2005) (codified at 15 U.S.C. §§ 7901–03), Congress shut

the door on litigation that would destroy the nation’s firearms industry. New

York has now contrived a broad public nuisance statute that applies solely to

“gun industry members” and is enforceable by a mob of public and private

actors. The intent of Congress when it closes a door is not for States to thus

jimmy a window. However, I am constrained to agree with my colleagues that,

depending on the pleading, this statute could be applied consistent with PLCAA

and the Constitution; and under Circuit precedent, that suffices to defeat

Appellants’ facial challenge. I write separately to emphasize the vulnerability of

New York’s statute to as-applied preemption challenges and the narrow aperture

of the law’s legitimate reach.

As the Court recounts, “a stated purpose of PLCAA is to significantly limit

the liability of gun manufacturers and sellers by eliminating suits stemming from

the unlawful misuse of firearms by third parties.” Ante at 19-20; see also Smith &

Wesson Brands, Inc. v. Estados Unidos Mexicanos, 145 S. Ct. 1556, 1569 (2025)

(“Congress enacted the statute to halt a flurry of lawsuits attempting to make gun manufacturers pay for the downstream harms resulting from misuse of their

products.”); § 7901(b)(1). This purpose aligns with Congress’s finding that

“[b]usinesses in the United States that are engaged in interstate and foreign

commerce through the lawful design, manufacture, marketing, distribution,

importation, or sale to the public of firearms or ammunition products . . . are not,

and should not, be liable for the harm caused by those who criminally or

unlawfully misuse firearm products or ammunition products that function as

designed and intended.” § 7901(a)(5). Congress expressly found that the

“possibility of imposing liability on an entire industry for harm that is solely

caused by others is an abuse of the legal system.” § 7901(a)(6). Congress

worried that the possibility that a “maverick judicial officer or petit jury” might

sustain liability actions “based on theories without foundation in hundreds of

years of the common law . . . in a manner never contemplated by the framers of

the Constitution, by Congress, or by the legislatures of the several States,” and

warned that such an abuse “would constitute a deprivation of the rights”

guaranteed by the Fourteenth Amendment. § 7901(a)(7).

PLCAA achieves its liability-limiting purpose by barring any “qualified

civil liability action” from proceeding in federal or state court. § 7902(a).

2 “Qualified civil liability action” is broadly defined to encompass any “civil action

or proceeding or an administrative proceeding” against industry members or

their trade groups for harm “resulting from the criminal or unlawful misuse” of

firearms or ammunition by third parties. § 7903(5)(A).

Several exceptions qualify this definition, including one “usually called the

predicate exception” that is relevant here. See Smith & Wesson, 145 S. Ct. at 1562.

As the Supreme Court recently explained, the predicate exception “applies to

suits in which the defendant manufacturer or seller ‘knowingly violated a State

or Federal statute applicable to the sale or marketing’ of firearms, and that

‘violation was a proximate cause of the harm for which relief is sought.’” Id.

(quoting § 7903(5)(A)(iii)). Congress provided two example predicate

violations:

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving

3 a firearm or ammunition under subsection (g) or (n) of section 922 of title 18[.] § 7903(5)(A)(iii). “If a plaintiff can show that [the predicate exception] is

satisfied . . . then a suit can proceed, even though it arises from a third party’s later

misuse of a gun.” Smith & Wesson, 145 S. Ct. at 1562 (emphasis added).

Importantly, the predicate exception is just that: an exception. The rule remains

that suits against firearms manufacturers and sellers over third-party misuse of

firearms are otherwise barred.

In City of New York v. Beretta U.S.A. Corp., we considered which laws are

deemed by Congress to be “applicable to the sale or marketing” of firearms for

purposes of the predicate exception. See 524 F.3d 384 (2d Cir. 2008). We

observed that “the examples of state and federal statutory violations in the

predicate exception itself refer to state and federal laws that specifically and

expressly govern firearms.” Id. at 400. Reasoning by analogy to these

examples, we held that the predicate exception “encompass[es] statutes (a) that

expressly regulate firearms, or (b) that courts have applied to the sale and

marketing of firearms[, or (c)] that do not expressly regulate firearms but that

clearly can be said to implicate the purchase and sale of firearms.” Id. at 404.

4 At issue in Beretta was New York’s criminal nuisance law, N.Y. Penal

Law § 240.45. We concluded that this law of general applicability was

insufficiently specific to firearms. Beretta, 524 F.3d at 404.

New York State later enacted the modified nuisance law at issue in this

case, which adds the words “gun industry member” to the not-a-predicate

statute at issue in Beretta. This new law, Section 898, provides that “[n]o gun

industry member . . . shall knowingly or recklessly create, maintain or contribute

to a condition in New York state that endangers the safety or health of the public

through the sale, manufacturing, importing or marketing of a qualified product”

and that any gun industry member that operates in New York “shall establish

and utilize reasonable controls and procedures to prevent its qualified products

from being possessed, used, marketed or sold unlawfully in New York state.”

N.Y. Gen. Bus. Law § 898-b. Violation of these prohibitions is declared a public

nuisance, enforceable by various public officials as well as private parties. See

id. § 898-c-e.

This law is nothing short of an attempt to end-run PLCAA. I know that

because then-Governor Cuomo used his signing statement to tell the public that

Section 898 would “right the wrong” done by PLCAA. See Governor Andrew

5 M. Cuomo, Governor Cuomo Signs First-in-the-Nation Gun Violence Disaster

Emergency to Build a Safer New York at 35:11-36:50. 1

I cannot very well deny that what New York has done, perfunctory as it is,

and deadly in its aim at the firearms industry, comports with Beretta. See ante at

23-25. Were I deciding Beretta afresh, I would have concluded that the predicate

exception is strictly defined by the examples that Congress provided, and that

the exception permits only those measures that are particular to firearms as a

product and an industry--not general-purpose nuisance statutes onto which

reference to the firearms industry is grafted. Cf. Beretta, 524 F.3d at 402 (“the

general term--‘applicable to’--is to be construed to embrace only objects similar to

those enumerated by” § 7903(5)(A)(iii)(I)-(II) (internal quotation omitted)). A

predicate statute, in my view, must bear upon firearms more specifically than by

mere reference, must give notice of its requirements sufficient to allow

compliance with confidence, and must require proximate cause. See

§ 7903(5)(A)(iii) (requiring knowledge and proximate cause). Otherwise, the

firearms industry is in jeopardy of enforcement so abusive and arbitrary that it

1 YouTube (July 6, 2021), https://www.youtube.com/watch?v=-tKj0FZueFM.

6 can be destroyed by litigation expense, damages, and impediments to insurance

and the raising of capital.

New York’s repurposed nuisance law is infirm for many of the same

reasons as New York’s original nuisance law, on which it was modeled.

PLCAA apprises the members of the firearms industry about specific obligations

(record-keeping requirements) and proscriptions (straw purchases, specified

false statements). Unlike PLCAA, Section 898 imposes liability for diffuse and

generalized conduct: “creat[ing], maintain[ing] or contribut[ing] to a condition in

New York state that endangers the safety or health of the public.” § 898-b(1).

Such a “condition” could be “created, maintained, or contributed to” in myriad

ways. Yet, since Section 898 undoubtedly “expressly regulate[s] firearms,” it

satisfies Beretta. A violation of Section 898 might--on the right set of facts--

qualify as a predicate violation.

I therefore agree with my colleagues that Appellants’ facial PLCAA

challenge fails. 2 But even so, PLCAA invites as-applied challenges to Section 898.

2 I also agree that Appellants’ facial dormant Commerce Clause and vagueness challenges fail, for the reasons provided by the Court. Because Section 898 is likely to have a limited reach in practice, its benefits and interstate burdens are

7 PLCAA’s operative language bars specific “qualified civil liability actions,” a

term defined by reference to specific facts characterizing specific cases. Though

Congress articulated a purpose concerning “causes of action,” Congress drafted

PLCAA to bar only individual “qualified civil liability actions.” Compare

§ 7901(b)(1), with § 7902(a). We must assume this difference in terms is material.

See Yale New Haven Hospital v. Becerra, 56 F.4th 9, 21 (2d Cir. 2022) (quoting Sw.

Airlines Co. v. Saxon, 596 U.S. 450, 458 (2022)). Therefore, unless a cause of action

cannot be pleaded consistently with PLCAA, preemption is best considered as

applied to individual cases.

Indicative is the Supreme Court’s Smith & Wesson opinion, which held that

the Government of Mexico had failed to “plausibly plead[]” conduct consistent

with the predicate exception. 145 S. Ct. at 1562; see also id. at 1570 (Thomas, J.,

concurring) (the Court’s opinion “concludes only that Mexico has not adequately

pleaded its theory of the case--that, as a factual matter, the defendant gun

manufacturers committed criminal aiding and abetting” (emphasis added)).

Thus, the Supreme Court made clear that, despite PLCAA’s announced purpose

as-yet unclear. See ante at 37. Moreover, at least some applications of Section 898 would accord with due process. See ante at 42-43.

8 to the contrary, “the predicate violation opens a path to making a gun

manufacturer civilly liable for the way a third party has used the weapon it

made.” Smith & Wesson, 145 S. Ct. at 1562. But as the Supreme Court did in

Smith & Wesson, we must consider whether the predicate exception bars a

particular lawsuit with reference to particular facts, not in the abstract on a facial

challenge.

It is possible to plead a Section 898 action that threads the eyelet of the

predicate exception. The Court concludes that Section 898’s lack of express

knowledge and causation requirements “does not contravene” the predicate

exception’s requirement of them. Ante at 29. Though I cannot see how a

Section 898 action could proceed without pleading these federally mandated

elements, this is a question that can be easily saved for (inevitable) as-applied

preemption challenges to Section 898, and easily answered then. 3 The Court

rightly declines Appellants’ invitation to declare that Section 898 is preempted

3 Because federal law appears to supply essential (albeit implied) elements of a Section 898 cause of action, Section 898 cases filed in state court may also be removable. See NASDAQ OMX Grp. v. UBS Secs., LLC, 770 F.3d 1010, 1019-20 (2d Cir. 2014). Removal to federal court should allay concern over a “maverick judicial officer or petit jury” reading Section 898 inconsistently with federal law.

9 “to the extent” that its application will exceed the predicate exception’s scope. 4

And “to the extent” that Appellants wish us to declare federal law’s supremacy

over state law, the Constitution already offers this rule of decision without any

underlining by us. See U.S. CONST. art. VI, cl. 2.

PLCAA constrains application and interpretation of Section 898. For

example, Section 898 authorizes actions based on a showing of (criminal)

recklessness, whereas only knowing violations of federal or state law fall within

the predicate exception. Compare § 898-b(1) (prohibiting certain acts done

“knowingly or recklessly”), with § 7903(5)(A)(iii) (requiring violations occur

“knowingly” to fit into predicate exception); see also N.Y. Penal Law § 15.05

(knowledge is more rigorous than recklessness under New York law). An as-

applied challenge may decide whether recklessness under New York criminal

law is tantamount to knowledge under federal law; if not, suits based on reckless

conduct will be dismissible. Section 898 also lacks an express proximate cause

4Appellants appear to have raised whether Section 898 is preempted to some extent for the first time on appeal; below, they argued it was preempted entirely. Failure of preservation is further reason to defer answering the question of to what extent Section 898 is preempted. See United States v. Mendonca, 88 F.4th 144, 165 (2d Cir. 2023); see also ante at 30 (reserving question).

10 requirement. But PLCAA is sufficiently emphatic that we can rely on trial

courts to dismiss Section 898 actions expeditiously where federally sufficient

knowledge or proximate cause are missing--lest application of Section 898 prove

an obstacle to Congress’s intention. Cf. § 7902(b) (requiring that any “qualified

civil liability action that is pending on October 26, 2005 shall be immediately

dismissed” (emphasis added)).

Speedy dismissal of attenuated Section 898 claims accords with PLCAA’s

goal of preventing litigation from eating up the firearms industry whole. There

is every indication that New York intends Section 898 to contravene federal law;

but there is some legitimate reach to the law, which suffices for us to affirm the

dismissal of this facial challenge. Just how limited that reach is must await

future cases.