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National Shooting Sports Foundation Challenges State Gun Law
Joe Whitcomb
:
October 08, 2024

The National Shooting Sports Foundation (NSSF) faced a legal setback when the Third Circuit Court of Appeals vacated a preliminary injunction and dismissed its challenge to a New Jersey statute, N.J. Stat. Ann. § 2C:58-35(a)(1). This law empowers the state to sue members of the gun industry who contribute to a public nuisance. The NSSF argued that the law violated its members' constitutional rights, claiming it was preempted by federal law and infringed upon due process, the First and Second Amendments, and the dormant Commerce Clause.
The NSSF claimed that its members were under threat from the New Jersey law, yet it provided minimal detail to substantiate this assertion. Initially, the District Court had granted the NSSF's motion for a preliminary injunction, but this decision was partially stayed by the Third Circuit Court of Appeals. The appellate court's key finding was that the NSSF did not meet the criteria for standing because it could not show an "injury in fact" or prove that the threat of enforcement was imminent.
Court's Analysis of Standing and Ripeness
The Third Circuit thoroughly examined the standing and ripeness requirements, emphasizing that pre-enforcement challenges are typically exceptions rather than the norm. The court applied a specialized test to assess whether the threat of enforcement against the NSSF was imminent. The court found both of the NSSF's theories of injury unpersuasive: the first theory pertained more to the merits of the case rather than standing, and the second was based on generalized allegations without sufficient specificity. The NSSF failed to provide detailed plans or actions that would indicate a real and immediate threat of harm.
The court also addressed the NSSF's lack of a specific claim related to Second Amendment rights. Drawing on the precedent set in Sherwin-Williams v. Attorney General of New Jersey, the court rejected the NSSF's vague allegations, noting the absence of any substantial threat of enforcement. The NSSF had not provided concrete examples of New Jersey's intent to enforce the law against them, further weakening their case.
The Attorney General's Position and Precedent Cases
The court highlighted the importance of predicting future injury and referenced the case Trump v. New York, which underlined the significance of concrete evidence in pre-enforcement challenges. In the NSSF case, the New Jersey Attorney General had explicitly disavowed any intention to prosecute the NSSF or its members for participating in lawful commerce. The court suggested that the NSSF could have sought clarification from the Attorney General on what would trigger enforcement, but it did not.
Moreover, the court argued that the NSSF had not demonstrated how typical gun industry activities, such as manufacturing, marketing, or selling firearms, would inevitably lead to enforcement under the new law. The proposed remedy by the NSSF, according to the court, suggested that the specifics of individual enforcement actions were more critical than the law itself.
In discussing Watson v. Buck, the court dismissed the idea that the Attorney General's office posed a credible threat to the NSSF. The court also rejected the argument that a similar law in New York served as evidence of a threat in New Jersey, pointing out that the law's preamble did not indicate any immediate danger to the NSSF.
Conclusion and Dismissal
The Third Circuit concluded that the NSSF's case was not fully developed, leading to the vacating of the preliminary injunction. The case was remanded with instructions to dismiss due to a lack of jurisdiction. The court determined that the NSSF had not shown a substantial likelihood of the law being enforced against it. Additionally, the civil nature of the law, as opposed to criminal, further reduced any potential risk to the NSSF. Consequently, the trial court's decision to grant a preliminary injunction was deemed erroneous, as the NSSF lacked the necessary standing under Article III. The case was vacated and remanded, with the challenge dismissed for failing to demonstrate imminent enforcement.