On October 26, 2005, President George W. Bush signed the Protection of Lawful Commerce in Arms Act (PLCAA) into law. In an environment where those on the political left are more eager than ever to wage lawfare to achieve their policy goals, the PLCAA has proven invaluable to preserving the U.S. firearm industry and Americans’ ability to exercise their Second Amendment rights. Nevertheless, two decades after the PLCAA’s enactment, the gun industry, and therefore gun owners, still face immense challenges from those who seek to repeal it outright or otherwise evade its protections.
Gun-control supporters have long viewed financially ruinous litigation against the firearms industry as a tactic in their overarching strategy to disarm the American public.
In the 1990s, gun-control advocates, urban politicians and trial attorneys teamed up to use the courts to fleece the gun industry for millions and force them to agree to gun-control measures that the American public had rejected through their elected representatives. The lawsuits sought to hold members of the industry liable for the criminal misuse of their lawful products.
These suits posed an existential threat to U.S. gunmakers. In 1998, the executive director of the anti-gun U.S. Conference of Mayors was quoted by the New York Times as stating, “[t]he lawyers are seeing green on this issue … they think they can bring the gun industry to its knees.” One of those attorneys “seeing green,” John Coale, was quoted in a 2000 Washington Post article as remarking, “The legal fees alone are enough to bankrupt the industry.”
The PLCAA shouldn’t be necessary.
The law was enacted to codify a longstanding tort law principle that gun-control advocates sought to undermine. U.S. tort law has long held that a person or entity cannot be held responsible for a third party’s criminal acts. If a violent criminal acquires and misuses a firearm, motor vehicle or baseball bat to commit a crime, it is the criminal who is liable for the conduct, not the company that produced the lawful product.
Suits against the firearm industry for knowingly unlawful sales, negligent entrustment and those predicated on traditional product-liability grounds are still permitted under the PLCAA.
It’s difficult to imagine in our current political climate, but codifying this well-established legal principle, and the basic fairness it embodies, enjoyed broad, bipartisan support. In the House of Representatives, 59 Democrats and Independent Rep. Bernie Sanders (Vt.) voted for the PLCAA. The legislation enjoyed support from 15 members of the Senate Democratic caucus. In contrast, repealing the PLCAA was a priority for the Biden-Harris administration and a plank in the 2024 Democrat Party Platform.
In the immediate years following enactment, the PLCAA discouraged the type of nuisance lawsuits that gave rise to the measure. However, as time has gone on, gun-control advocates, anti-gun politicians and avaricious attorneys have worked to sidestep the law.
The most high-profile litigation on this matter was Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos (2025), which made it all the way to the U.S. Supreme Court. The suit was brought by domestic-gun-control advocates in collaboration with Mexico.
Counsel for Mexico included longtime Brady (formerly Handgun Control, Inc.) attorney Jonathan Lowy, now of Global Action on Gun Violence. An October 2022 Politico item reported, “Global Action on Gun Violence quietly filed paperwork with the DOJ under the Foreign Agents Registration Act, with [Jonathan] Lowy and Elizabeth Burke, who was also an attorney at Brady, registering as agents of Mexico.” Anti-gun attorneys general from 16 states filed an amicus brief at the Supreme Court siding with the foreign power over U.S. industry.
In their attempt to undo the PLCAA, Mexico and their collaborators advanced the bizarre theory, as NRA’s amicus brief in the case summarized, that members of the U.S. gun industry “intend to appeal to Mexican cartels by depicting their firearms in patriotic advertisements featuring the American military, law enforcement, and American flags.” Aside from being an attack on the Americans’ ability to access firearms to exercise their Second Amendment rights, the argument imperils the First Amendment right of companies to communicate with legitimate customers.
Mexico also contended that gun-industry members were liable for cartel violence because they may be aware that unknown bad actors could use the lawful stream of commerce to criminally divert their firearms. Never mind that the companies weren’t shown to have violated the voluminous federal regulations concerning firearm distribution.
The Supreme Court rejected Mexico’s arguments in a 9-0 decision. In their opinion, the Court explained that the gunmakers’ products are “are both widely legal and bought by many ordinary consumers,” and that “[t]he manufacturers cannot be charged with assisting in criminal acts just because Mexican cartel members like those guns too.”
In a concurring opinion, Justice Ketanji Brown Jackson wisely explained, “Activists had deployed litigation in an effort to compel firearms manufacturers and associated entities to adopt safety measures and practices that exceeded what state or federal statutes required,” adding that the “PLCAA embodies Congress’s express rejection of such efforts—stymying those who, as Congress put it, sought ‘to accomplish through litigation that which they have been unable to achieve by legislation.’”
Still, several states have enacted laws attempting to undo the federal PLCAA. For instance, in 2022, New Jersey enacted, on top of their existing mountain of gun regulations, new requirements for each “gun industry member” to “establish, implement, and enforce reasonable controls regarding its manufacture, sale, distribution, importing, and marketing of gun-related products.” The term “reasonable controls” isn’t adequately defined. These statutes seek to open firearm industry members to liability for failing to institute an unknowable litany of unstated gun controls.
As noted, suits based on traditional product-liability grounds are allowed under the PLCAA. However, given the politics around firearm ownership and the firearm industry, and gun-control advocates’ observed willingness to use the courts to secure otherwise unobtainable policy outcomes, gun owners should approach product-liability suits against the gun industry with a discerning eye and the full political context in mind.
Consider the case Gustafson v. Springfield. In 2018, attorneys for the plaintiffs, including counsel for Brady Center to Prevent Gun Violence, filed suit in Pennsylvania against gunmaker Springfield Armory. The suit alleged that Springfield’s XD-9 semi-automatic handgun had a defective design because the firearm did not incorporate a magazine disconnect, which would not allow the firearm to be fired if the magazine was removed.
Not having a magazine disconnect is not a “design defect,” as the suit alleged. Some semi-automatic firearms have them, and some do not. For those who desire this feature, they can purchase a firearm with it. Many gun owners don’t want the added complexity and do want a firearm that’s capable of firing if the magazine is dislodged during the tense moments of a defensive gun use.
After seven years of litigation, the case made it all the way up to the Supreme Court of Pennsylvania, which ruled for Springfield in 2025.
Brady’s early involvement in the case demonstrates that gun-control advocates view product-liability litigation as just another means to pursue their political ends. Of note is that counsel for Brady listed in the initial suit included Lowy, who later helped bring the doomed Mexico case.
More recently, multiple anti-gun jurisdictions have attempted to hold Glock responsible for criminals unlawfully converting its popular pistols into machineguns using illegal devices. Gun-control advocates contend that Glock is at fault for not altering the design of its celebrated, particularly among law enforcement, pistols to account for this criminal misuse. Of note is that in the Mexico case, the Court addressed the country’s claim that the firearm manufacturers had not altered their product to adequately address criminal misuse by stating, “the failure to improve gun design in that way (which federal law does not require) cannot in the end show that the manufacturers have ‘join[ed] both mind and hand’ with lawbreakers… .”
Another item to consider is an August 2023 report from the University of California Berkeley School of Law Civil Justice Research Initiative titled, “Civil Litigation as a Tool in a Public Health Approach to Gun Violence.” The title alone demonstrates a post-PLCAA campaign to continue to use litigation to impact the gun industry for political ends.
The document is something of a roadmap for getting around the PLCAA to continue the anti-gun-litigation campaign. The goal, in part, is to “circumvent” the PLCAA, with “defective design” litigation as one option. As the document points out: “Claims based on negligent marketing (as opposed to strict liability or defective design, for example) have historically been the most successful at circumventing PLCAA and proceeding in court.”
How far do the authors admit they want to go? The item states,
“Civil litigation against the gun industry might help overcome the limited capacity of lawmakers and administrative agencies to regulate guns … The threat of liability can hold the gun industry accountable by providing a powerful incentive to ensure that its products are manufactured and distributed safely. For example, gun manufacturers could adopt design changes, such as self-locking mechanisms or face and fingerprint recognition technology… .”
A law firm that has sued SIG Sauer in relation to its P320 pistol is Saltz Mongeluzzi Bendesky. Firm partner Robert Zimmerman is the chair of the American Association for Justice’s (AAJ; formerly Association of Trial Lawyers of America) Firearms Litigation Group.
One of the authors of the UC Berkeley report cited above is Robert S. Peck, whom the report noted is “a Leaders Forum member of the American Association for Justice.” Moreover, AAJ Chief Executive Officer Linda Lipsen has expressed support for federal legislation to repeal the PLCAA.
Astute gun-right supporters will know of the Giffords gun-control organization (formerly Americans for Responsibly Solutions and the Second Amendment-denying Legal Community Against Violence). There is an employee listed on their website as a “State and Local Policy Attorney,” who “drafts and analyzes state-level legislation and works with lawmakers and advocates across the country to enact policies preventing all forms of gun violence.” According to the Giffords website, this individual was previously “counsel for the American Association for Justice, where he worked on legislative efforts to ensure accountability within the firearm industry.”
Much like in 2005, the U.S. firearms industry and American gun owners still face a constellation of gun-control advocates, anti-gun politicians, and trial lawyers. As seen in the Mexico case, the PLCAA arms the gun industry and gun- rights supporters with a powerful tool to prevent the worst abuses of the legal system. Even so, gun owners must work to support those seeking to uphold and strengthen the PLCAA’s vital protections.
