Public Nuisance Liability and the Irrelevance of the Second Amendment

Heidi Li Feldman, Public Nuisance Liability and the Irrelevance of the Second Amendment, Duke Ctr. for Firearms L., (Apr. 12, 2022) https://firearmslaw.duke.edu/2022/04/public-nuisance-liability-and-the-irrelevance-of-the-second-amendment/ archived at https://perma.cc/B8ZX-TNRM

1 Pages Posted: 17 Apr 2022

Date Written: April 12, 2022

Abstract

In 2005, the U.S. Congress bestowed on gun makers and sellers broad immunity from civil lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA). Congress explicitly based this immunity on the need to protect Second Amendment rights, pitting defenders of those rights against victims of criminal gun violence seeking to hold gun merchants accountable for their role in such violence. But a contest between civil liability for gun makers and sellers and respect for Second Amendment rights is neither inevitable nor necessary. As a new effort to ground civil liability in state legislation shows, the theory underlying the litigation that precipitated PLCAA has nothing to do with the rights secured by the Second Amendment. It may be politically expeditious or commercially advantageous for the gun industry to link the two, but the link is not legally sound.

States have begun to consider and pass statutes that codify the public nuisance theories of civil liability that animated a wave of litigation against gun industry actors in the late 1990s and early 2000s. New York has already enacted such legislation. A similar bill has been introduced in California. The New York law identifies precise ways in which the conduct of gun makers and sellers can, in combination with unlawful use of their products, constitute a public nuisance. It therefore invites renewed attention to the issue that Congress identified as the central basis for PLCAA: whether there is any threat to Second Amendment rights from litigation premised on the theory that manufacturers who create an overabundance of guns with excessive criminal appeal create a public nuisance. By codifying the precise elements of a cause of action based on this theory, New York’s statute makes it easy to show it does not.

Keywords: torts, public nuisance, guns, Second Amendment, law, statutes

Suggested Citation

Feldman, Heidi Li, Public Nuisance Liability and the Irrelevance of the Second Amendment (April 12, 2022). Heidi Li Feldman, Public Nuisance Liability and the Irrelevance of the Second Amendment, Duke Ctr. for Firearms L., (Apr. 12, 2022) https://firearmslaw.duke.edu/2022/04/public-nuisance-liability-and-the-irrelevance-of-the-second-amendment/ archived at https://perma.cc/B8ZX-TNRM, Available at SSRN: https://ssrn.com/abstract=4083277

Heidi Li Feldman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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