I. Introduction

We all know the sinking feeling. The news notification flashes across your smartphone screen. You hold your breath and hope it isn’t your hometown this time. You exhale as you read the headline and learn that nineteen children were gunned down in an elementary school in South Texas.[1] Oh wait, perhaps this time it was actually seven people at a parade in a suburb of Chicago, fifty-eight country fans at a concert in Las Vegas, or forty-nine LGBTQ community members at a nightclub in Orlando.[2] It almost feels routine now. Every few months or so, we get a new headline about a new mass shooting.[3] Just as routine are the headlines after the shootings describing the troubled past of the perpetrators: the clear warning signs, terrifying social media posts, and concerned family testimony.[4] The story is never, “Wow, I am really surprised he did that!” Instead, it is always, “Wow, I am really surprised he got a gun!”[5]

Prior to the shooting, the Uvalde gunman was given the nickname “school shooter” by classmates, had an obsession with school shootings, and made violent threats on social media.[6] Despite this, just days after he turned eighteen, he was able to legally purchase “two [assault] rifles, [sixty] magazines, and over [two thousand] rounds of ammunition.”[7] Shortly thereafter, he killed twenty-one people (nineteen of whom were elementary school-aged children).[8] The gunman at the Highland Park parade made threats against family members to “kill everyone.”[9] These threats were serious enough that the police were called to the gunman’s house.[10] However, he later legally purchased five weapons, including an AR-15-type assault rifle that he then used to kill seven people.[11] The Parkland High shooter posted pictures online of animals he had mutilated and killed, wrote threatening messages under pictures of knives, and displayed photos of weapon stockpiles.[12] Nonetheless, he had no problem purchasing an AR-15.[13] Less than one year later, he killed fourteen high school students and three members of the school’s staff.[14]

None of these individuals should have been able to purchase firearms. Yet all of these individuals passed federal background checks and purchased their firearms through legal, legitimate channels.[15] Ironically, these sales would likely not have occurred at common law; the gun stores likely would have denied the sales to avoid liability for negligence.[16] But, current federal legislation, the Protection of Lawful Commerce in Arms Act (PLCAA) (outside of six extremely narrow exceptions), immunizes both gun stores and manufacturers from civil suits.[17] This reduces the incentives for gun stores to conduct any investigation beyond the minimum federal requirements.[18] Because gun stores can be immune from civil suits, litigation of public safety issues has no direct effect on their profits.[19] Thus, firearms continue to fall into the hands of dangerous individuals, resulting in the needless deaths of thousands of Americans every year.

Gun control in its current form is ineffective.[20] Even conservatives agree that something needs to change.[21] Unfortunately, most gun control laws fail due to political division and an inability to “work across the aisle.”[22] Further, in the rare instance that gun control is passed, it is often struck down in the courts through Second Amendment challenges.[23] Combine these factors with the immense pressure that the gun lobby places on American politics,[24] and it is clear that the federal government is incapable of regulating the gun industry. To achieve meaningful, effective gun control, the gun industry must regulate itself.

The remainder of this Comment demonstrates how the flaws in our current gun control system are exacerbated by the unconstitutional PLCAA. Part II provides a brief history of gun control in the United States: the origins of the ineffective restrictions, an explanation for why the restrictions are nearly impossible to amend, the story behind the PLCAA, and why it matters that we can’t sue gun stores. Part III analyzes how litigation (or the threat thereof) resulted in self-regulation in other industries—noting that this will never occur with the current PLCAA. Finally, Part IV discusses the need to repeal the PLCAA and the future that is possible if this occurs.

II. Background

This Part provides a history of how the current state of gun control in the United States came to be. Section A demonstrates the reactionary nature of gun control and how, as a result, there is not any effective gun control intended to stop mass shootings. Section B explains why there is so little gun control at the federal level and highlights the forces that work against gun control. Finally, Section C illustrates the purpose of this Comment: Why the PLCAA matters, how it is a roadblock, and the “utopia” it is preventing.

A. The Current State of Gun Control (or Lack Thereof) in the United States

Have you ever wondered why current federal gun control does not stop mass shootings? The answer is likely (in part) because current federal gun control is not specifically designed to prevent mass shootings.[25]

The first attempt at gun control in the United States was the National Firearms Act (NFA), passed in 1934.[26] The early twentieth century is well known for three things: war, Prohibition, and the Great Depression.[27] Both Prohibition and the Great Depression created an environment where organized crime could thrive,[28] while ongoing wars ensured there were new technologically advanced firearms available.[29] This surge of organized crime led to out-of-control mob violence in American cities.[30] The favorite weapon of the American gangster was the Thompson sub-machine gun (Tommy gun).[31] The rapid-fire rate and high-capacity magazine placed whoever wielded the weapon on equal footing with law enforcement and rival gangs.[32] As a result, the Tommy gun became ubiquitous with the mob.[33] In the early 1930s, President Franklin D. Roosevelt and Congress sought to curtail organized crime’s usage of portable machine guns, such as the Tommy Gun.[34] In 1934, the NFA was passed and, through a creative taxation scheme, effectively banned the sale of machine guns like the Tommy Gun.[35] Today, the mob is merely a Hollywood spectacle, and machine guns are rarely, if ever, used in violent crime.[36]

The next major step in gun control was the Gun Control Act of 1968 (GCA).[37] By the 1960s, the mob shootouts of the '20s and '30s were a thing of the past. Instead, newspapers nationwide featured front-page stories of high-profile political assassinations. In 1963, President John F. Kennedy was shot and killed in Dallas, Texas.[38] Congress again debated gun control but the initial efforts failed for lack of interest.[39] Two years later, “Malcolm X was shot by Nation of Islam members.”[40] Two years after that, the leader of the American Nazi Party, George Lincoln Rockwell, was shot and killed.[41] Just a year later, in April of 1968, Dr. Martin Luther King, Jr. was shot and killed in Memphis.[42] Then two months after that, Robert F. Kennedy was assassinated.[43] Most of these killings were carried out using cheap, imported foreign weapons.[44] The second Kennedy assassination was the straw that broke the camel’s back; after five years of heated debate, the U.S. Senate finally passed the GCA of 1968.[45] Unlike the NFA, which regulated the sale of firearms, the GCA regulated possession.[46] These new regulations—like a ban on interstate shipments of firearms and a prohibition on the importation of certain foreign-made firearms—were intended to stop assassinations, not mass shootings.[47] But, the GCA is the governing framework for all modern federal firearms laws.[48]

Again, an assassination attempt would spur the next round of major gun control in the United States.[49] John Hinkley attempted to kill President Ronald Reagan in 1981, severely injuring press secretary James Brady.[50] After nearly a decade of debate, the Brady Handgun Act was passed in 1993.[51] The Act aimed to prevent would-be assassins from obtaining firearms, resulting in the National Instant Criminal Background Check System (NICS).[52] However, the NICS was only partially effective—states failed to provide complete records to the FBI, and dangerous individuals were still able to obtain firearms.[53]

Despite dozens of mass shootings throughout the '90s and early 2000s, Congress did not pass gun control intended to curtail mass shootings until 2007—the year of the iPhone release.[54] In 2007, thirty-two people were killed after being gunned down on Virginia Tech University’s campus.[55] The Virginia Tech shooter was permitted to purchase a rifle because his mental health records were not available through the NICS.[56] As a result, the NICS Improvement Amendments Act of 2007 (NIAA) was passed.[57] The NIAA asks “states to meet specific goals for completeness of the records . . . identifying individuals prohibited by federal law from possessing firearms.”[58] Unfortunately, the NIAA lacks consequences for states that fail to keep their records complete.[59] As a result, states often do not meet these goals, leaving the NICS in only slightly better shape than immediately after the Brady Handgun Act.[60]

The bleak reality is this: The only restriction enacted with the intent of curtailing mass shootings is essentially a toothless “suggestion” that has proven meaningless.

B. Why Are We Here? The Explanation for a Lack of Gun Control at the Federal Level

Our current gun-control scheme is clearly ineffective,[61] and history shows us the likelihood of this changing is slim to none.[62] But why? First, gun control seldom makes it out of the House due to immense pressure from the gun lobby—namely the National Rifle Association (NRA).[63] Second, if gun control does make it to the House floor, political division and an inability to reach across the aisle and compromise leads to most gun control stalling in Congress.[64] Further, on the rare occasion that Congress passes gun control, it is often almost immediately struck down by right-leaning courts.[65] As a result of these hurdles, gun control at the federal level is fairly static.

The NRA was originally founded in 1871 “to train hunters and marksmen on [better] gun use and safety.”[66] However, today, the NRA is one of the most successful lobbying groups and maintains a stranglehold on gun-adjacent politics.[67] The NRA wields significant influence by financially supporting preferred candidates in elections.[68] This financial support is effective. In a recent Senate vote on the Bipartisan Safer Communities Act (a gun control measure introduced in response to the Uvalde shooting), of the forty-eight senators who receive a significant donation from the NRA, thirty-three voted no.[69] Although the Safer Communities Act passed, this is the exception, not the rule.[70] The NRA’s opposition to gun control is effective and drastically reduces the federal government’s ability to regulate guns through legislation.[71]

Even when we remove the NRA from the equation, passing gun control laws is a tall task. America is notorious for its political division.[72] Even in the golden age of political cooperation—where senators like John McCain supported legislation from the “other” party—enacting gun control was difficult.[73] This political divide resulted in the “sunsett[ing]” of the assault weapons ban and essentially guaranteed there would not be any new legislation replacing it.[74] As America becomes increasingly divided, passing meaningful gun control only becomes more difficult.[75]

Even when gun control survives the pressures of the NRA and increasingly bipartisan politics, there is one final hurdle to clear: the courts. Unlike many other areas the government tries to regulate (healthcare, transportation, agriculture), the Constitution provides an explicit right to bear arms.[76] When assessing other (non-firearm) regulations, courts often engage in complex Commerce Clause or substantive due process analyses; as a result, courts are reluctant to strike down regulations to uphold stare decisis.[77] When assessing gun regulations, courts do not need to engage in any complex analysis—instead, they turn to the Second Amendment.[78] Thus, firearms regulations are more susceptible to being struck down.[79] Further, when assessing firearms regulations, courts will sometimes expand gun rights beyond just repealing the regulation.[80] In New York State Rifle & Pistol Ass’n v. Bruen, the Court was tasked with deciding whether a concealed carry law was constitutional.[81] Instead of deciding this limited issue, the Court issued a broad holding stating that there is a constitutional right to carry firearms in public.[82] An even more absurd result occurred just a few months later when Judge Counts, of the Western District of Texas, relied upon Bruen to strike down a 1994 law that restricted domestic abusers from owning firearms.[83] These instances are only the most recent developments in a long history of the Court limiting gun control.[84]

Pressure from gun rights lobbyists (mainly the NRA) and political division contribute to a lack of gun control at the federal level.[85] However, courts’ tendencies to scale back gun control presents double the danger, as they place limitations on gun control at both the federal and state levels.[86] As a result, even states lacking political division and NRA pressure find it difficult to keep gun-control measures on the books.[87] The end product of these forces is the lack of meaningful gun control at any level.

C. Why Should You Care About the PLCAA?

Thus far, this Comment has demonstrated the ineffectiveness of current gun control and the difficulties that the government faces when trying to regulate firearms—including pressures from the powerful gun lobby. But this is not the first time that a powerful lobby has presented an uphill battle for regulators. There are striking similarities between the tobacco lobby of the '90s and the gun lobby today.[88] During this period, the tobacco lobby successfully created a regulatory environment that allowed them to thrive.[89] A combination of careful donations at the state and federal levels resulted in a lack of restrictions on an industry that the American public recognized as harmful.[90] But despite this initial reluctance to regulate, the tobacco industry is now one of the most heavily regulated industries.[91] Everything about how the tobacco companies market, package, sell, or produce their product is under stringent federal regulation.[92]

So how did this happen? The tobacco industry went from one of the least regulated to one of the most regulated nearly overnight as a result of lawsuits.[93] Big Tobacco was staring down the barrel of the metaphorical bankruptcy shotgun after paying out massive judgment after massive judgment.[94] This plethora of civil litigation transformed Big Tobacco’s outlook on regulation; previously, regulation was a death knell—now, regulation was a life raft: the only thing preventing the industry from drowning in limitless liability.[95] The industry worked with Congress to create special restrictions that, so long as followed, exempted tobacco companies from liability.[96] It is important to note that even with these regulations, every American citizen still has an unimpeded right to purchase, keep, and bear cigarettes.[97]

So how does this relate to firearms and the PLCAA? Frustrated with the increasing rates of crime and gun violence, various American cities noticed the success that civil litigation had in curbing the smoking epidemic and had a bright idea.[98] Near the turn of the millennium, nearly forty cities filed suit against the gun industry, alleging that the industry’s unethical practices were to blame for thousands of gun deaths each year.[99] The gun lobby, determined to avoid the fate of Big Tobacco, acted fast. Instead of waiting for the courts to enter massive judgments against them, the gun lobby sought relief from Congress while most of these lawsuits were still pending.[100] Congress graciously provided relief in the form of the PLCAA, a law that barred all civil litigation against gun manufacturers and dealers.[101] Immediately after the PLCAA was signed, nearly all of the pending litigation against the gun industry disappeared.[102]

Congress passed the PLCAA through its Commerce Clause power under the theory that it was necessary and proper to protect Americans’ Second Amendment right to bear arms.[103] But the PLCAA does not protect the Second Amendment—it protects gun stores.[104] The lack of a civil litigation threat results in gun stores prioritizing the sale of firearms over public safety, allowing dealers to ignore obvious warning signs that would establish liability under a negligence theory of recovery.[105] This deprives Americans of their due process rights to confront those who wronged them in a court of law. Further, the PLCAA is outside the scope of the Commerce Clause’s modern interpretation. Not only is the PLCAA adverse to the standards of a progressive democratic society, but it is unconstitutional and must be overturned.[106]

III. Analysis

Part III discusses the unconstitutionality of the PLCAA. Specifically, Section A establishes that suing industries is a constitutional right. Section B demonstrates how the PLCAA violates these rights under Substantive Due Process. Then, Section C establishes that the PLCAA is outside the scope of the Commerce Clause following NFIB v. Sebelius. Section D discusses courts’ previous interpretations of the arguments in Sections A, B, and C, and demonstrates the horrific effect the abridgment of this right has on the American public.

A. Suing the Gun Industry Is a Constitutional Right

The Due Process clauses of the Fifth and Fourteenth Amendments expand constitutional rights beyond the original text.[107] Recent jurisprudence has provided clarification as to what rights are included and excluded from due process protection.[108] A right is protected by due process when it is “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty.”[109] Thus, a law that abridges a right that is “deeply rooted in this Nation’s history and tradition” is unconstitutional because it violates due process under the Fifth and Fourteenth Amendments.[110] The right to sue manufacturers and sellers of dangerous products is both deeply rooted in our nation’s history and implicit in a scheme of ordered liberty.[111]

The history of the United States is shaped by powerful industries, so much so that industry defines the essence of each era in our history. The mid-nineteenth century was dominated by the railroad industry.[112] The railroad lobby wielded relatively similar power as the gun lobby does today.[113] As the railroads grew, so did their collateral damage.[114] Americans suffered significant injuries to themselves and their property at the expense of the railroad industry.[115] As a result, numerous lawsuits were filed,[116] but to avoid costly litigation, railroad companies began adopting internal safety standards and operating with greater care.[117]

Similarly, the early days of the automotive industry lacked the safety regulations we have today.[118] Cars with dangerous design flaws peppered the market.[119] For example, the Ford Pinto had a propensity to explode when in rear-end collisions due to a poorly placed gas tank.[120] Ford was forced to pay $137.5 million in damages,[121] and now most cars can withstand collisions up to fifty miles per hour.[122] The fact that lawsuits were allowed to proceed against the automotive industry did not prevent Americans from owning cars, but instead made the roads safer for everyone.

A third example of this phenomenon is the pharmaceutical industry. In 1937, the so-called “miracle drug,” “Elixir of Sulfanilamide, containing the poisonous solvent diethylene glycol, kill[ed] 107 [people], many of whom were children.”[123] Public outcry and a flurry of civil litigation ensued, culminating in the expansion of the Food and Drug Administration’s (FDA) power.[124] Although the FDA has strict regulations for drug manufacturers, the threat of civil litigation could have also encouraged drug manufacturers to place tighter restrictions on themselves.[125] Additionally, Congress often responds to issues introduced through civil litigation by expanding the FDA’s authority.[126] The ability to confront drug manufacturers in court has resulted in safer pharmaceuticals for all.[127]

The above examples demonstrate that civil litigation provides citizens with a method to hold industry accountable. This litigation ensures that large corporations account for public safety concerns when making business decisions. The PLCAA ensures that gun stores do not account for public safety in their actuarial processes. These anecdotes are just a select few of the hundreds of examples “in this Nation’s history and tradition” where industry power was curbed with civil litigation.[128]

To be constitutionally protected, a right must also be essential to a scheme of ordered liberty.[129] That is, the right must have been fundamental at the signing of the Constitution.[130] To determine whether the right to recover against industry was “fundamental” at the time of the signing of the Constitution, one need not look further than the Declaration of Independence.[131] A decade before the Constitution was signed, Thomas Jefferson listed, “refusing . . . [to] establish[] Judiciary powers,” and “depriving us in many cases, of the benefits of Trial by Jury,” as justification for the creation of our new nation.[132] The ability to confront trespassers in court was not only a fundamental right at the signing of the Constitution but a founding principle of this nation.[133] Thus, the ability to confront industry is essential to a scheme of ordered liberty.

As established, filing suit against industry is both “deeply rooted in [the] Nation’s history and tradition” and fundamental to “[a] scheme of ordered liberty,” and is, therefore, constitutionally protected under due process.[134]

B. The PLCAA Is Unconstitutional for Violating Substantive Due Process Rights

When passing a law that affects a fundamental right, Congress must operate within a certain framework.[135] The law must be narrowly tailored to achieve a compelling governmental interest and utilize the least restrictive means.[136] The PLCAA does not meet these requirements.

First, the PLCAA must try to achieve a compelling governmental interest. On its face, protecting the firearms industry is not a compelling governmental interest. Congress could assert that the purpose of the PLCAA is to protect the Second Amendment. Protecting the constitutional rights of Americans is certainly a compelling governmental interest; however, this interest must be accomplished through a narrowly tailored law utilizing the least restrictive means.

Generally, a law is “narrowly tailored” when its enforcement is enumerated rather than its exceptions.[137] The PLCAA bars all causes of action against firearms manufacturers and dealers except for six exceptions.[138] These exceptions are precise in scope and limited in definition. The exceptions allow for: (1) breach of warranty claims; (2) defective product claims; (3) actions brought for violations of specific federal or state laws; (4) actions commenced by the Attorney General of the United States; (5) actions against sellers who knowingly transferred a firearm to be used in a crime of violence; and (6) actions for negligent entrustment. Although exceptions five and six appear to allow suits against gun manufacturers in the instances for which this Comment advocates, the precise language has resulted in judicial interpretation that does not.[139] For example, when it was determined that a shooting was not the result of a negligent sale of a firearm, a Texas court dismissed the suit against the dealer because Texas does not allow recovery for negligent entrustment based on the sale of a chattel.[140] In a similar vein of cases, courts have limited the requisite “knowledge” to actual knowledge. Constructive knowledge—a showing that a reasonable person would have known the weapon was going to be used in a crime of violence—is not enough to overcome the PLCAA. The PLCAA completely abridges the fundamental right to confront the industry except in six extremely narrow instances. The PLCAA’s enforcement is blanketed, and its exceptions are enumerated. The PLCAA is, therefore, not narrowly tailored.[141]

Further, the PLCAA must utilize the least restrictive means. This requires that there be no other method of achieving the government’s interest other than the specific restrictions.[142] If the government’s interest in the PLCAA is protecting the Second Amendment, there are a plethora of methods in which the government could protect individuals’ right to bear arms without prohibiting nearly all causes of action against the firearm industry. Therefore, the PLCAA does not utilize the least restrictive means.

Because the PLCAA affects a fundamental right,[143] it is not narrowly tailored[144] and does not utilize the least restrictive means—the law is unconstitutional regardless of a compelling governmental interest.

C. Regardless of Substantive Due Process, the PLCAA Is Outside the Scope of the Current Interpretation of the Commerce Clause.

The PLCAA was passed before the modern interpretation of the Commerce Clause was articulated in NFIB v. Sebelius.[145] Although the PLCAA may have been constitutional when it was passed, it fails under a post-NFIB Commerce Clause interpretation.

In a dispute over the constitutionality of the Affordable Care Act, NFIB contemplated whether Congress could, through fines, force individuals to purchase health insurance.[146] The conservative majority held that Congress could not tell someone without insurance which insurance to buy, nor could Congress force someone to purchase any insurance at all.[147] NFIB thereby added two rules to the Commerce Clause: (1) Congress cannot (through the Commerce Clause) regulate individuals who have not engaged in commercial activity; and (2) Congress cannot force individuals into commercial activity through regulations.[148] The PLCAA violates these new rules.

The PLCAA regulates individuals who have not engaged in any relevant interstate commercial activity. The PLCAA could prevent individuals from bringing suit against the firearm industry, not just individuals who have purchased firearms.[149] The PLCAA, interpreted in a Commerce Clause context, is not qualified immunity for the firearms industry, but rather a penalty/fine equal to the amount of damages an individual is precluded from recovering. Again, this penalty is applied to everyone—not just individuals who have engaged in interstate commerce with firearms companies.

Further, the PLCAA forces Americans to engage in commercial activity. Generally, when an industry’s commercial activity causes injury, the industry bears the burden of that injury via lawsuits. For example, Exxon paid for oil cleanups,[150] Monsanto compensated states for environmental damage,[151] and Equifax paid out millions to customers whose data security was breached.[152] Individuals are not forced to engage in any additional commercial activity to remedy the wrongs of these industries. But, because the PLCAA bars claims against the firearms industry, the same is not the case with firearms. It is estimated that firearms cost Americans nearly $229 billion a year. These losses are not recouped from gun industry profits; instead, the PLCAA forces Americans to engage in additional commercial activity to remediate these damages. This includes, but is not limited to, higher health insurance premiums, more intense private security, a slowing of business development, and many other costly factors.[153]

Because the PLCAA both regulates individuals who are not engaged in interstate commerce, and forces individuals to engage in interstate commerce, it falls outside the scope of the post-NFIB Commerce Clause, and is thus unconstitutional.

D. Whether These Arguments Have (or Will) Hold Up in Court.

Gun control advocates have vehemently opposed the PLCAA since it was signed.[154] As a result, there have been a variety of challenges to the law’s constitutionality.[155] Many challenges are dismissed, citing a Second Circuit decision that addressed First and Tenth Amendment challenges to the PLCAA.[156] Further, due to recent changes in constitutional interpretation, the current constitutionality of the PLCAA is a hard “maybe” at best.

Until Dobbs v. Whole Women’s Health, the limits of substantive due process were unclear.[157] With Dobbs, there is now a clear, albeit confusing, test. However, a lack of clarity on which test to employ did not prevent the PLCAA from being challenged under substantive due process.[158] In a 2013 case in Alaska, respondents argued the PLCAA was unconstitutional under the Due Process Clause of the Fifth Amendment.[159] In holding that the PLCAA did not violate substantive due process rights, the Alaskan Supreme Court cited the Second Circuit case that upheld the constitutionality of the PLCAA under the First and Tenth Amendments.[160] However, the Second Circuit did not discuss due process rights.[161] To be constitutional, a law must comply with the entire Constitution. The Alaska Supreme Court thereby erred in determining that because the PLCAA complied with the Tenth Amendment, it satisfied the substantive Due Process Clause. Although the case was not appealed further,[162] the recent clarification on the boundaries of substantive due process weighs in favor of a finding for the respondents.

The Pennsylvania Superior Court recently became the first court to hold the PLCAA unconstitutional.[163] In that case, a teenager was a victim of an accidental shooting.[164] When his parents sued the firearms seller, the case was initially dismissed under the PLCAA.[165] On appeal, the teen’s parents argued that the PLCAA’s regulation of individuals who had never engaged in commercial activity related to firearms was unconstitutional under NFIB.[166] The Pennsylvania Superior Court agreed.[167]

It is more than probable this case will reach the Supreme Court, where a likely conservative majority will have to decide whether to continue their retrenchment of federal authority or throw everything they have been building since NFIB out the window for the gun industry. However, these things move slowly (the majority could be progressive by the time it reaches the Court) and the Court is unpredictable (as seen from the Supreme Court’s 2022 term). Thus, nobody can accurately predict whether the Court will strike down the PLCAA. However, it is an accurate statement to say that the Court absolutely should. Doing so is consistent with constitutional jurisprudence and will almost immediately solve one of the most pressing problems in America today.

IV. Conclusion

Imagine a world without the PLCAA. Just like how Exxon now takes extra precautions because they know they will be on the hook for billions if they “screw up,”[168] gun stores and manufacturers would take extra precautions in sales because a “screw up” would cost billions. Without the PLCAA, negligent sales to dangerous individuals would drastically reduce profit margins, and therefore, the extra costs required to prevent these sales would be justified. It is foreseeable that the gun industry itself, not the government, would impose more stringent background checks, waiting periods, and conduct a thorough investigation of social media accounts. After all, lives be damned, billions of dollars are on the line.

The best news is this is all realistically possible. This reality doesn’t require the government to spend a single taxpayer dollar, nor does it depend on increasingly pugnacious lawmakers to agree, nor can it be buried or struck down by NRA-influenced courts on Second Amendment grounds. All that is required is that five of the nine most brilliant legal minds in the world follow the set of rules that they have created for themselves.

In fact, this theory of liability is already being used to impose liability on individual citizens who negligently provide access to firearms.[169] Jennifer Crumbley, a mother in Michigan, was recently convicted of four counts of involuntary manslaughter.[170] Crumbley ignored clear warning signs that her son was on a downward spiral and still allowed him to access firearms.[171] Her son then went to school and killed four of his classmates.[172] The conviction was appealed to the Michigan Court of Appeals, which affirmed the findings of the lower court and held that, due to her actions, Crumbley will spend up to fifteen years in jail.[173] The only difference between this instance and what this Comment advocates is that the liability is imposed on an individual rather than a dealer or manufacturer of firearms and that the liability is criminal. These differences mean that the PLCAA is not at issue here. Although this case was the first of its kind, this suggests that without the PLCAA, negligence liability for firearms dealers could be a reality.[174]

The idea that individuals should be able to sue gun stores is not a unique innovation, but rather it is espoused by Americans everywhere. Laypeople understand that gun stores should be held liable for damages resulting from their negligence. Thus, a multitude of suits have been brought against firearms manufacturers and dealers.[175] The historic $73 million settlement received by the Sandy Hook families demonstrates that the needle is moving in the right direction, and the gun industry is seeing the cracks.[176] Additionally, there is currently pending litigation regarding the sale of firearms to the Uvalde and Highland Park shooters.[177] The outcomes of these (and similar) cases will determine the constitutionality of the PLCAA going forward. Unfortunately, I am not able to represent the plaintiffs in these cases, nor do I have the time or resources to act as amici in the cases. I, therefore, hope the ideas in this Comment are discovered, understood, and incorporated by whoever has that privilege. These arguments, if taken seriously and given the credence they deserve, will be the end of an era of violence protected by the PLCAA. The law is an unconstitutional, unconscionable roadblock to preventing mass shootings and must be overturned.

Matthew Frost

  1. Carla Astudillo et al., What We Know, Minute by Minute, About How the Uvalde Shooting and Police Response Unfolded, Tex. Trib., https://www.texastribune.org/2022/05/27/uvalde-texas-school-shooting-timeline/ [https://perma.cc/A69D-PTSV] (last updated July 28, 2022).

  2. Adrienne Vogt et al., July 6, 2022 Highland Park Illinois Parade Shooting News, CNN, https://www.cnn.com/us/live-news/highland-park-parade-shooting-illinois-07-06-22/index.html [https://perma.cc/RU4S-MV8L] (last updated July 6, 2022, 8:55 PM); Taylor Romine & Eddie Sun, Before Las Vegas Mass Shooting, a Friend of the Gunman Implored Him Not to ‘Shoot or Kill Innocent People,’ Newspaper Reports, CNN, https://www.cnn.com/2023/04/07/us/las-vegas-2017-shooting-stephen-paddock-letters/index.html [https://perma.cc/3LHF-495N] (last updated Apr. 8, 2023, 11:10 AM); Ralph Ellis et al., Orlando Shooting: 49 Killed, Shooter Pledged ISIS Allegiance, CNN, https://www.cnn.com/2016/06/12/us/orlando-nightclub-shooting [https://perma.cc/9D4N-8E28] (last updated June 13, 2016, 11:05 AM).

  3. A Partial List of Mass Shootings in the United States in 2022, N.Y. Times, https://www.nytimes.com/article/mass-shootings-2022.html [https://perma.cc/9EUR-H9Q8] (last updated Jan. 24, 2023).

  4. See, e.g., Joel Rose & Brakkton Booker, Parkland Shooting Suspect: A Story of Red Flags, Ignored, npr (Mar. 1, 2018, 7:03 AM), https://www.npr.org/2018/02/28/589502906/a-clearer-picture-of-parkland-shooting-suspect-comes-into-focus [https://perma.cc/6XLV-L6KS].

  5. See Aaron Blake, The Litany of ‘Red Flags’ in Recent Mass Shootings, Wash. Post, https://www.washingtonpost.com/politics/2022/05/26/many-red-flags-recent-mass-shootings/ [https://perma.cc/PP6N-FTTW] (last updated May 31, 2022, 10:20 AM).

  6. Wynne Davis, A Report Detailed the Missed Warning Signs and Motives of the Uvalde Gunman, npr (July 17, 2022, 10:10 PM), https://www.npr.org/2022/07/17/1111945402/uvalde-shooter-warning-signs-report [https://perma.cc/BU8S-PW2D].

  7. Id.

  8. Id.

  9. Becky Sullivan, Highland Park Suspect Legally Purchased 5 Guns Despite Worrying Encounter with Police, OPB (July 6, 2022, 8:37 AM), https://www.opb.org/article/2022/07/06/highland-park-suspect-legally-purchased-5-guns-despite-worrying-encounter-with-police/ [https://perma.cc/N27J-RNHA].

  10. Id. (noting that the police ultimately confiscated various weapons from Crimo’s home during this visit—including sixteen knives).

  11. Id.

  12. David Dwork, Parkland Shooter’s Disturbing Social Media Posts, Local10, https://www.local10.com/news/local/2022/04/03/parkland-shooters-disturbing-social-media-posts/ [https://perma.cc/R3NB-W3L9] (last updated Apr. 4, 2022, 6:12 AM).

  13. Rebecca Rosenberg, Florida Mass Shooter Nikolas Cruz Told Gun Shop Owner AR-15 Was for Hunting, Fox News (July 26, 2022, 4:29 PM), https://www.foxnews.com/us/florida-mass-shooter-nikolas-cruz-told-gun-shop-owner-ar-15-hunting [https://perma.cc/M7JE-5U74].

  14. Id.

  15. Michael R. Sisak, Mass Shooters Exploited Gun Laws, Loopholes Before Carnage, Associated Press (May 27, 2022, 5:40 PM), https://apnews.com/article/uvalde-school-shooting-buffalo-supermarket-texas-new-york-aa259bc33a1d83c62a8923f0de187042 [https://perma.cc/2BJ7-3T5U] (noting that the Uvalde shooter obtained his weapon legally); Clare Foran, Federal Background Check System in Spotlight After Highland Park Shooting, CNN, https://www.cnn.com/2022/07/06/politics/highland-park-shooting-background-checks/index.html [https://perma.cc/WMH9-BKZ9] (last updated July 6, 2022, 9:14 PM) (explaining that the Highland Park shooter got his weapon legally); Paula McMahon & Skyler Swisher, Nikolas Cruz Passed Background Check, Including Mental Health Question, to Get AR-15 Rifle, S. Fla. Sun Sentinel, https://www.sun-sentinel.com/local/broward/parkland/florida-school-shooting/fl-florida-school-shooting-guns-20180215-story.html [https://perma.cc/YPR7-3GPC] (last updated Dec. 15, 2018, 3:52 AM) (explaining that the Parkland shooter purchased his gun legally).

  16. See, e.g., Delana v. CED Sales, Inc., 486 S.W.3d 316, 324–26 (Mo. 2016) (en banc) (recognizing that the PLCAA does not preempt negligent entrustment claims). A negligent sale, a type of negligent entrustment, occurs when a seller knows (or should know) that the purchaser is incompetent and injury to another is reasonably foreseeable. See id. at 324–25 (“[N]egligent entrustment liability [in Missouri] is not premised on the legal status of the transaction as a lease, sale, bailment or otherwise.”). If public, the social media posts combined with the sheer amount of publicly available information on these shooters is enough that the gun dealers likely should have known they were incompetent purchasers. It is reasonably foreseeable that selling a firearm to a mentally ill person would lead to the physical injury of another.

  17. See 15 U.S.C. §§ 7901(b), 7902(a), 7903(5); In re Acad., Ltd., 625 S.W.3d 19, 30–32 (Tex. 2021) (noting that “no viable cause of action exists under Texas law for negligent entrustment based on a sale of a chattel,” so the PLCAA’s negligent-entrustment exception based on a sale does not apply).

  18. See § 7902.

  19. See Repeal Gun Industry Immunity, Everytown Rsch. & Pol’y, https://everytownresearch.org/solution/industry-reform/ [https://perma.cc/Z9JS-ZYH6] (last visited Jan. 14, 2024) (noting how the gun industry is not motivated to ensure guns do not get in the wrong hands due to legal immunity under the PLCAA).

  20. See A Partial List of Mass Shootings in the United States in 2022, supra note 3.

  21. Rachel Treisman, Poll: Number of Americans Who Favor Stricter Gun Laws Continues to Grow, npr (Oct. 20, 2019, 7:01 AM), https://www.npr.org/2019/10/20/771278167/poll-number-of-americans-who-favor-stricter-gun-laws-continues-to-grow [https://perma.cc/UER2-U3H9].

  22. See Philip Elliott, Why the Bipartisan Gun Deal Could Still Fall Apart, TIME (June 13, 2022, 12:56 PM), https://time.com/6187044/gun-deal-democrats-republicans-what-happens-next/ [https://perma.cc/8NH5-WSF6].

  23. John Kruzel, Gun Control Laws Fall at Dizzying Pace After Supreme Court Ruling, Hill (Oct. 20, 2022, 6:00 AM), https://thehill.com/regulation/court-battles/3696299-gun-control-laws-fall-at-dizzying-pace-after-supreme-court-ruling/ [https://perma.cc/RK3G-MA59].

  24. Ryan Busse, Gunfight: My Battle Against the Industry that Radicalized America 5 (2021); Thomas Gift, Guns in the US: Why the NRA Is So Successful at Preventing Reform, Conversation (June 1, 2022, 8:17 AM), https://theconversation.com/guns-in-the-us-why-the-nra-is-so-successful-at-preventing-reform-184180 [https://perma.cc/9YZ7-JGPP].

  25. See generally Jacob D. Charles & Brandon L. Garrett, The Trajectory of Federal Gun Crimes, 170 U. Pa. L. Rev. 637, 653, 665–69 (2022) (noting how gun control laws were enacted as a reaction to crime and an attempted political assassination—but not mass shootings).

  26. Id. at 646.

  27. Dennis E. Showalter & John Graham Royde-Smith, World War I, Britannica, https://www.britannica.com/event/World-War-I [https://perma.cc/WMM6-9SD8] (last updated Apr. 4, 2024); Prohibition, Britannica, https://www.britannica.com/event/Prohibition-United-States-history-1920-1933 [https://perma.cc/9AZJ-5YNZ] (last updated Mar. 27, 2024); Richard H. Pells & Christina D. Romer, Great Depression, Britannica, https://www.britannica.com/money/topic/Great-Depression [https://perma.cc/TN58-XS29] (last updated Feb. 29, 2024).

  28. See Dave Roos, How Prohibition Put the ‘Organized’ in Organized Crime, HIST., https://www.history.com/news/prohibition-organized-crime-al-capone [https://perma.cc/44YM-EPCZ] (last updated Jan. 29, 2024).

  29. Jean-Michel Normand, Al Capone’s Machine Gun, from the Trenches to the Gang War, Le Monde (July 21, 2022, 2:55 PM), https://www.lemonde.fr/en/summer-reads/article/2022/07/21/al-capone-s-machine-gun-from-the-trenches-to-the-gang-war_5990913_183.html [https://perma.cc/5UM2-KUV2].

  30. See, e.g., id.

  31. Bernadette Giacomazzo, How the Tommy Gun Went from a Weapon of ‘Law and Order’ to a Favorite of Notorious Criminals, ati, https://allthatsinteresting.com/tommy-gun [https://perma.cc/QT46-TX26] (last updated Feb. 27, 2024).

  32. See generally id.

  33. Id.

  34. See Prohibition-Era Gang Violence Spurred Congress to Pass First Gun Law, npr (June 30, 2016, 4:25 PM), https://www.npr.org/2016/06/30/484215890/prohibition-era-gang-violence-spurred-congress-to-pass-first-gun-law [https://perma.cc/B224-YRXN].

  35. Id.

  36. See id.; After Years of Drama in Court, Today’s Great Mob Trials Are Only in Movies, Md. Daily Rec. (Dec. 15, 2000), https://thedailyrecord.com/2000/12/15/after-years-of-drama-in-court-today8217s-great-mob-trials-are-only-in-movies/ [https://perma.cc/6H8T-WPQ2]. “Machine gun” technically refers to fully automatic weapons. See Machine Gun, Britannica, https://www.britannica.com/technology/machine-gun [https://perma.cc/2GJD-CW3A] (last updated Mar. 5, 2024). Most violent crimes are committed with semi-automatic weapons. Jaclyn Diaz, 6 Major Takeaways from the ATF’s First Report in 20 Years on U.S. Gun Crime, npr (Feb. 10, 2023, 5:05 AM), https://www.npr.org/2023/02/10/1153977949/major-takeaways-from-the-atf-gun-violence-report [https://perma.cc/4HD8-PVC6] (“Pistols represented nearly 70% of the crime guns traced between 2017 and 2021.”). The aforementioned mass shootings were committed with semi-automatic assault-style weapons, which are not machine guns. This is an important distinction.

  37. See Charles & Garrett, supra note 25, at 652, 657. Of course, the Federal Firearms Act was passed in 1938 after the NFA, but it “did not become a major law enforcement policy.” See id. at 649–52.

  38. Julia Ross, Why Were So Many American Political Figures Assassinated in the 1960s?, Sky HIST., https://www.history.co.uk/article/why-were-so-many-american-political-figures-assassinated-in-the-1960s# [https://perma.cc/8YV7-2W8T] (last visited Jan. 10, 2024); Jeff Wallenfeldt, Assassination of John F. Kennedy, Britannica, https://www.britannica.com/event/assassination-of-John-F-Kennedy [https://perma.cc/QE9N-WB6E] (last updated Apr. 3, 2024).

  39. See Charles & Garrett, supra note 25, at 653 & n.97.

  40. Ross, supra note 38.

  41. Charles S. Clark, Death of an Arlington Nazi, N. Va. Mag. (Dec. 30, 2010), https://northernvirginiamag.com/culture/news/2010/12/30/death-of-an-arlington-nazi/ [https://perma.cc/ZZ97-BQ9E].

  42. Ross, supra note 38.

  43. Id.

  44. See Charles & Garrett, supra note 25, at 653 (noting the surplus of cheap imported firearms in post-war America).

  45. Olivia B. Waxman, How the Gun Control Act of 1968 Changed America’s Approach to Firearms—and What People Get Wrong About that History, TIME, https://time.com/5429002/gun-control-act-history-1968/ [https://perma.cc/6QHE-YDEH] (last updated Oct. 30, 2018, 11:52 AM); see Charles & Garrett, supra note 25, at 653 (noting that the GCA of 1968 was passed at the “height of civil unrest”).

  46. Charles & Garrett, supra note 25, at 647, 654.

  47. Id. at 653, 655.

  48. Id. at 657.

  49. See, e.g., id. at 665.

  50. Id.

  51. Id. at 665, 667.

  52. Id. at 668.

  53. See id. at 671.

  54. Chris Canipe & Travis Hartman, A Timeline of Mass Shootings in the U.S., Reuters, https://graphics.reuters.com/USA-GUNS/MASS-SHOOTING/nmovardgrpa/index.html [https://perma.cc/ZU23-3QT4] (last updated May 31, 2021); Avery Hartmans, Apple Just Unveiled Its iPhone 14 Line. Here’s How Apple’s Iconic Smartphone Has Changed the World Forever Since 2007., Bus. Insider, https://www.businessinsider.com/apple-iphone-evolution-first-iphone-every-model-2019-12 [https://perma.cc/893X-BZ8H] (last updated Sept. 7, 2022, 3:49 PM); NICS Act Record Improvement Program (NARIP), Bureau Just. Stat. (Mar. 3, 2021), https://bjs.ojp.gov/programs/nics-improvement-amendments-act [https://perma.cc/MR7R-LMB5].

  55. This Day in History: Virginia Tech Shooting Leaves 32 Dead, HIST., https://www.history.com/this-day-in-history/massacre-at-virginia-tech-leaves-32-dead [https://perma.cc/5DDK-F37A] (last updated Apr. 14, 2021).

  56. NICS Act Record Improvement Program (NARIP), supra note 54.

  57. Id.

  58. Id.

  59. Glenn Thrush & Serge F. Kovaleski, Loopholes and Missing Data: The Gaps in the Gun Background Check System, N.Y. Times (June 19, 2022), https://www.nytimes.com/2022/06/19/us/gun-background-checks.html [https://perma.cc/Y3V3-LEBB].

  60. See id.

  61. See generally Canipe & Hartman, supra note 54 (noting the plethora of mass shootings in recent U.S. history).

  62. Tierney Sneed, How the Supreme Court Put Gun Control Laws in Jeopardy Nationwide, CNN, https://www.cnn.com/2022/10/09/politics/gun-control-second-amendment-supreme-court-bruen-fallout [https://perma.cc/6PZ9-S29D] (last updated Oct. 10, 2022, 2:46 PM); Kruzel, supra note 23; Elliott, supra note 22.

  63. Stephen Gutowski, Why Can’t Democrats Pass Gun Control?, Atlantic (Sept. 24, 2021), https://www.theatlantic.com/ideas/archive/2021/09/nra-broken-so-why-cant-democrats-pass-gun-control/620190/ [https://perma.cc/7SZ7-JL3R].

  64. See Elliott, supra note 22; Emily Brooks & Mike Lillis, Here Are the Gun Bills Stalled in Congress, Hill (May 25, 2022, 1:01 PM), https://thehill.com/homenews/house/3501301-here-are-the-gun-bills-stalled-in-congress/ [https://perma.cc/D9YB-MVUL].

  65. See Kruzel, supra note 23.

  66. Rukmani Bhatia, Guns, Lies, and Fear, Ctr. for Am. Progress (Apr. 24, 2019), https://www.americanprogress.org/article/guns-lies-fear/ [https://perma.cc/CA2R-XGPR].

  67. Id.

  68. Dominic Rushe, Why Is the National Rifle Association So Powerful?, Guardian (May 4, 2018, 3:28 PM), https://www.theguardian.com/us-news/2017/nov/17/nra-gun-lobby-gun-control-congress [https://perma.cc/M643-XFSY].

  69. Compare Bipartisan Safer Communities Act of 2022, Ballotpedia, https://ballotpedia.org/Bipartisan_Safer_Communities_Act_of_2022 [https://perma.cc/PY25-Q3MP] (last visited Jan. 30, 2024), with Which Senators Have Benefitted the Most from NRA Money?, Brady, https://elections.bradyunited.org/take-action/nra-donations-116th-congress-senators [https://perma.cc/8VQT-VM7K] (last visited Jan. 8, 2024). The Author arrived at the thirty-three out of forty-eight number by comparing these two webpages.

  70. Bipartisan Safer Communities Act of 2022, supra note 69; Joel Brown, The Long, Failed History of Gun Control Legislation, BU Today (May 25, 2022), https://www.bu.edu/articles/2022/the-long-failed-history-of-gun-control-legislation/ [https://perma.cc/P539-7CEP] (noting that the NRA has suppressed legislation and prevented the assault weapons ban of 1994 from being renewed after its “sunsett[ing]”).

  71. Brown, supra note 70.

  72. Michael Dimock & Richard Wike, America Is Exceptional in Its Political Divide, Pew: Tr. Mag. (Mar. 29, 2021), https://www.pewtrusts.org/en/trust/archive/winter-2021/america-is-exceptional-in-its-political-divide [https://perma.cc/7JRZ-JNPB].

  73. See Susan Davis & Domenico Montanaro, McCain Votes No, Dealing Potential Death Blow to Republican Health Care Efforts, npr (July 27, 2017, 11:46 PM), https://www.npr.org/2017/07/27/539907467/senate-careens-toward-high-drama-midnight-health-care-vote [https://perma.cc/Y4FU-RX4A]. The claim that gun control legislation was difficult to pass during this era is supported by the lack of gun control laws from this time period. See supra Section II.A.

  74. See Brown, supra note 70 (noting how gun control stalled in the mid-late-2000s).

  75. Dimock & Wike, supra note 72; Eric Bazail-Eimil, Americans Remain Divided on Gun Control as National Worry over Violence Rises, Pew Report Finds, POLITICO (June 28, 2023, 3:30 PM), https://www.politico.com/news/2023/06/28/gun-control-violence-pew-00104032 [https://perma.cc/6DF7-ULLT].

  76. U.S. Const. amend. II.

  77. Frederick Schauer, Stare Decisis—Rhetoric and Reality in the Supreme Court, Sup. Ct. Rev., 2018, at 121, 125, 127 n.24. Courts (especially at the appellate level) honor stare decisis. Id. at 125. There is an assumption that Congress understands the Constitution, and as a result, courts will conduct their analyses and interpretations such that the law does not run afoul of the Constitution. However, post-Bruen, courts need not consider stare decisis for gun rights cases. Instead of looking at whether a regulation violates previous cases, courts instead look at whether the regulation violates the Second Amendment itself. Steven P. Halbrook, Post-Bruen Decisions in the Lower Courts, in Firearms Law Deskbook § 1:17 (2023).

  78. It is much easier for a court to justify that a regulation on automobiles falls under the scope of the Commerce Clause (or inversely more difficult to argue that regulation of automobiles does not fall within the scope of the Commerce Clause). Michael A. Foster & Erin H. Ward, Cong. Rsch. Serv., IF11971, Congress’s Authority to Regulate Interstate Commerce (2021), https://crsreports.congress.gov/product/pdf/IF/IF11971 [https://perma.cc/7L5Q-M8DL] (explaining that means of commerce, such as automobiles, fall under Congress’ Commerce Clause power). But it is more difficult for a court to interpret a law regulating the possession of firearms such that it is not in conflict with the Second Amendment’s command that “the right . . . to bear Arms . . . shall not be infringed.” U.S. Const. amend. II; Understanding the Supreme Court’s Gun Control Decision in NYSRPA v. Bruen, League Women Voters, https://www.lwv.org/blog/understanding-supreme-courts-gun-control-decision-nysrpa-v-bruen [https://perma.cc/KM3L-8V8A] (last updated July 12, 2022) (discussing how Bruen restricts modern legislation to fit within the original meaning of the Second Amendment).

  79. See Joseph Blocker & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 33 Yale L.J. 99, 113, 172–73 (2023).

  80. The Supreme Court went beyond the question presented in Bruen, which was merely whether New York’s concealed carry regulations were constitutional. See N.Y. State Rifle & Pistol Ass’n, v. Bruen, 142 S. Ct. 2111, 2125, 2156 (2022) (asserting that the Second Amendment right to carry a handgun for self-defense extends beyond the home).

  81. Id. at 2123, 2125.

  82. Id. at 2156.

  83. United States v. Perez-Gallan, 640 F. Supp. 3d 697, 702, 716 (W.D. Tex. 2022).

  84. See generally McDonald v. City of Chicago, 561 U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008). Both cases are famous examples of the Supreme Court curtailing gun control. Additionally, both cases have been used as precedents to limit gun control passed by the states. See Rogers v. Grewal, 140 S. Ct. 1865, 1875 (2020).

  85. See Brown, supra note 70.

  86. Many of the famous Second Amendment cases involve a constitutional challenge to a state (rather than federal) gun law. E.g., Bruen, 142 S. Ct. at 2125, 2156; McDonald, 561 U.S. at 752, 783; Heller, 554 U.S. at 575–76, 635. However, United States v. Perez-Gallan is the exception to this rule and demonstrates that the courts limit gun control measures at both the state and federal levels. Perez-Gallan, 640 F. Supp. 3d at 713.

  87. See Brown, supra note 70. See Anthony Zurcher, Where Does US Gun Control Go from Here?, BBC (Apr. 13, 2023), https://www.bbc.com/news/world-us-canada-61591236 [https://perma.cc/W25P-LHZA]. As discussed previously, state gun laws are often challenged and overturned by the courts. E.g., Bruen, 142 S. Ct. at 2156; McDonald, 561 U.S. at 783; Heller, 554 U.S. at 635.

  88. See Busse, supra note 24, at 107.

  89. See Roseann B. Termini, A Look Back at the Evolution of the Family Smoking Prevention and Tobacco Control Act and the Present-Day Impact on “Overlooked and Belated Issues”—Electronic Nicotine Delivery Systems (ENDS) and the Youth Epidemic, Menthol, Corrective Statements and Cigarette Labeling Graphic Health Warnings, 17 Ind. Health L. Rev. 107, 113, 132 (2020); see Sonu Goel et al., Tobacco Industry Accountability – Current Practices, Emerging Issues and Challenges, Frontier Pub. Health, Aug. 2023, at 1, 1–2.

  90. See Goel, supra note 89, at 1–2; see Termini, supra note 89, at 113, 132.

  91. The regulation of the tobacco industry has gone through many iterations. Termini, supra note 89, at 110, 113–15; Marketing Restrictions, PhilipMorrisUSA, https://www.philipmorrisusa.com/en/products/marketing-practices/marketing-restrictions [https://perma.cc/CQE3-GAJM] (last visited Feb. 14, 2024).

  92. Termini, supra note 89, at 114.

  93. See Busse, supra note 24, at 107.

  94. Matt Isaacs, What’s at Stake if Tobacco Goes Broke, PBS: Frontline, https://www.pbs.org/wgbh/pages/frontline/shows/settlement/big/bankrupt.html [https://perma.cc/XD2B-CZE3] (last visited Jan. 9, 2024).

  95. Id.; see Nat’l Ass’n of Att’ys Gen., Master Settlement Agreement 2 (1998), https://www.naag.org/wp-content/uploads/2020/09/2019-01-MSA-and-Exhibits-Final.pdf [https://perma.cc/9G83-7L7U].

  96. See Nat’l Ass’n of Att’ys Gen., supra note 95, at 1–3, 100–11; see Steven Schroeder, Tobacco Control in the Wake of the 1998 Master Settlement Agreement, 350 New Eng. J. Med., 293, 293–98 (2004).

  97. See Termini, supra note 89, at 124. One of the main arguments for the PLCAA is that if the gun industry was not shielded from liability, the American public would be unable to get guns, and the civil litigation would violate the Second Amendment. See Daniel P. Rosner, In Guns We Entrust: Targeting Negligent Firearms Distribution, 11 Drexel L. Rev. 421, 444, 447 (2018). Note, the fact that despite intense regulation individuals can still purchase cigarettes demonstrates this is fiction.

  98. Amanda B. Hill, Comment, Ready, Aim, Sue: The Impact of Recent Texas Legislation on Gun Manufacturer Liability, 31 Tex. Tech L. Rev. 1387, 1402, 1409 (2000).

  99. See id. at 1409. Note that Ready, Aim, Sue was published in 2000 and mentions the “recent lawsuits” from cities against gun manufacturers. Id. at 1432.

  100. See Busse, supra note 24, at 109, 111–12.

  101. An initially affirmed verdict against a group of firearms manufacturers and a compromise to avoid a class action between President Bill Clinton and Smith & Wesson illuminated the threat of a wave of litigation and inspired the PLCAA. Rosner, supra note 97, at 432, 441.

  102. See id. at 441–42.

  103. See 15 U.S.C. § 7901; see also Hill, supra note 98, at 1432.

  104. See Rosner, supra note 97, at 448.

  105. Infra Part III.

  106. Infra Part III.

  107. See Ilan Wurman, The Origins of Substantive Due Process, 87 U. Chi. L. Rev. 815, 865–66 (2020); U.S. Const. amends. V, XIV. Although both the Fifth and Fourteenth Amendments address due process, only the Fifth Amendment is relevant here because the PLCAA is a federal regulation, not a state law. Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7903.

  108. See Wurman, supra note 107, at 848–50, 865–69, 879.

  109. Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (first quoting Moore v. E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion), and then quoting Palko v. Connecticut, 302 U.S. 319, 325–26 (1937)). Note that while there have traditionally been two different standards for substantive due process, the Glucksberg test now predominates as the rule—especially after being used to overturn Roe v. Wade. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242, 2247–48 (2022) (holding that Glucksberg is the test to determine whether an unenumerated constitutional right exists).

  110. See Glucksberg, 521 U.S. at 720–21 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)). Whether the Fifth or Fourteenth Amendment is violated is determined by whether the violation is due to a federal or state regulation. See Linda R. Monk, Due Process Clause, Equal Protection Clause and Disenfranchising Felons, PBS, https://www.pbs.org/tpt/constitution-usa-peter-sagal/equality/due-process-equal-protection-and-disenfranchisement/ [https://perma.cc/UF5H-JS3K] (last visited Jan. 6, 2024).

  111. A fundamental policy of common law jurisprudence is allowing a redress of social grievances and compensating those who have been wronged by no fault of their own. This tradition dates back half a millennium and is reflected in the Noerr-Pennington Doctrine. Houlahan v. World Wide Ass’n of Specialty Programs & Schs., 677 F. Supp. 2d 195, 201 n.10 (D.D.C. 2010).

  112. See Richard Hornbeck & Martin Rotemberg, Railroads, Reallocation, and the Rise of American Manufacturing 1–3 (Univ. of Chi. Becker Friedman Inst. for Econ., Working Paper No. 2019-146, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3512196 [https://perma.cc/Q3SH-U3V2].

  113. Cf. Richard White, How Trains ‘Railroaded’ the American Economy, npr (July 11, 2011, 12:01 AM), https://www.npr.org/2011/07/11/137497772/how-trains-railroaded-the-american-economy [https://perma.cc/D8J5-3ZWU] (discussing the networking between politics and business established by the railroad).

  114. See Ryan v. N.Y. Cent. R.R., 35 N.Y. 210, 210 (1866); Palsgraf v. Long Island R.R., 248 N.Y. 339, 340–41 (1928); Watson v. Ky. & Ind. Bridge & R.R., 126 S.W. 146, 147 (Ky. 1910).

  115. See, e.g., Ryan, 35 N.Y. at 210; Palsgraf, 248 N.Y. at 340–41; Watson, 126 S.W. at 147.

  116. These lawsuits were allowed to proceed. There is nothing that suggests anyone at the time was concerned about the constitutional right to travel being affected by railroad regulation.

  117. See, e.g., Off. of Tech. Assessment, An Evaluation of Railroad Safety 3–4 (1978).

  118. The NTHSA was not founded until 1970, while cars first became popular in the United States in the early 1920s. National Highway Traffic Safety Administration, Fed. Reg., https://www.federalregister.gov/agencies/national-highway-traffic-safety-administration [https://perma.cc/557Y-FG3J] (last visited Feb. 4, 2024); The Age of the Automobile, U.S. Hist., https://www.ushistory.org/us/46a.asp [https://perma.cc/KW88-UBZP] (last visited Jan. 14, 2024).

  119. Bill Loomis, 1900–1930: The Years of Driving Dangerously, Detroit News, https://www.detroitnews.com/story/news/local/michigan-history/2015/04/26/auto-traffic-history-detroit/26312107/ [https://perma.cc/VU33-2L3R] (last updated Apr. 26, 2015, 2:14 PM).

  120. Carol J. Williams, Toyota Is Just the Latest Automaker to Face Auto Safety Litigation, L.A. Times (Mar. 14, 2010, 12:00 AM), https://www.latimes.com/archives/la-xpm-2010-mar-14-la-fi-toyota-litigate14-2010mar14-story.html [https://perma.cc/W3PV-SZ2N].

  121. William H. Shaw & Vincent Barry, The Ford Pinto, in Moral Issues in Business 83, 84 (8th ed. 2001).

  122. See Williams, supra note 120.

  123. Milestones in U.S. Food and Drug Law, U.S. Food & Drug Admin., https://www.fda.gov/about-fda/fda-history/milestones-us-food-and-drug-law [https://perma.cc/CBE7-4H3G] (last updated Jan. 30, 2023); Elixir Sulfanilamide, Glob. Health Now, https://globalhealthnow.org/object/elixir-sulfanilamide [https://perma.cc/K95E-NRPD] (last visited Feb. 12, 2024).

  124. See Carol Ballentine, Taste of Raspberries, Taste of Death: The 1937 Elixir Sulfanilamide Incident, FDA Consumer Mag. (June 1981), https://www.fda.gov/media/110479/download?attachment [https://perma.cc/R6RP-BFJZ]; see also Wilson v. Massengill, 124 F.2d 666, 667 (6th Cir. 1942) (providing one example of a lawsuit stemming from the fallout of the elixir).

  125. Cf. Milestones in U.S. Food and Drug Law, supra note 123.

  126. See id.

  127. See id.

  128. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)); Milestones in U.S. Food and Drug Law, supra note 123.

  129. Glucksberg, 521 U.S. at 720–21.

  130. See id. at 721.

  131. Cf. The Declaration of Independence paras. 10, 22 (U.S. 1776) (suggesting that legal rights and remedies, including the ability to seek redress from industries, were considered fundamental liberties at the nation’s founding).

  132. Id. at paras. 1, 10, 20, 22.

  133. Jefferson included the lack of ability to access the Courts as a reason for declaring independence. See id. at paras. 11, 12, 22.

  134. This idea is established in the proceeding paragraphs. The fact that meeting those requirements equates to constitutional protection is due to recent developments in Supreme Court jurisprudence. The seminal substantive due process case of Washington v. Glucksberg further promulgated the “Palko-ist” rule that substantive due process rights are related to the history and tradition of the United States and inherent to a scheme of ordered liberty. The recent Dobbs opinion rejected the penumbra approach to substantive due process, clarifying that “history and tradition” and “ordered liberty,” are the current standards. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246 (2022). See generally Glucksberg, 521 U.S. 702.

  135. See generally Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (creating the “strict scrutiny” standard that Congress must abide by when passing a law that affects a fundamental right).

  136. For example, a blanket prison grooming policy was unconstitutional because the prison could have had a more narrowly tailored policy and could have allowed the Muslim inmate to have a short beard (and remain identifiable) rather than be clean-shaven. Holt v. Hobbs, 574 U.S. 352, 363–66 (2015).

  137. Overly broad laws are unconstitutional. Courts generally find a law is overbroad when there is blanket enforcement with limited exceptions. See Griswold v. Connecticut, 381 U.S. 479, 516–17 (1965) (Black, J., dissenting) (citing Bd. of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1, 7–8 (1964)).

  138. Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7903(5)(A).

  139. Id.

  140. In re Acad., Ltd., 625 S.W.3d 19, 30–31 (Tex. 2021) (explaining that Texas hasn’t adopted Section 390 of the Second Restatement of Torts, and therefore, there is no cause of action for the sale of a firearm). Negligent entrustment can only occur in Texas without consideration, the “sale” was thus a sale and not an entrustment, and therefore, outside the scope of the PLCAA exemption. Id.

  141. There is no doubt that the only conclusion from this analysis can be that the PLCAA is not a narrowly tailored law.

  142. See Holt v. Hobbs, 574 U.S. 352, 356 (2015).

  143. See supra Section III.A.

  144. Supra note 141.

  145. The PLCAA was signed in 2005. See Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7903; Maureen Mullen Dove, The Obamacare Decision: Does Anyone Know What It Means?, Md. Bar J., Mar./Apr. 2013, at 28, 31 (2013) (discussing the new limitations of the Commerce Clause, regardless of the ultimate expansion of federal power).

  146. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 530–31, 539 (2012).

  147. Although the ACA survived because the regulation was interpreted to be a tax, not a penalty, the Commerce Clause’s modification by NFIB is clear. See id. at 574, 588.

  148. Dove, supra note 145, at 31; NFIB, 567 U.S. at 552.

  149. See Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7903(5)(A).

  150. In re Exxon Valdez, 270 F.3d 1215, 1245 (9th Cir. 2001).

  151. Conrad Wilson & Cassandra Profita, Oregon Reaches Nearly $700M Settlement with Monsanto over PCB Contamination, OPB, https://www.opb.org/article/2022/12/15/oregon-settlement-monsanto-pcb-contamination-attorney-general-ellen-rosenblum/ [https://perma.cc/9F5R-LAUB] (last updated Dec. 15, 2022, 7:39 PM).

  152. Equifax Data Breach Settlement, Consumer Fin. Prot. Bureau, https://www.consumerfinance.gov/equifax-settlement/ [https://perma.cc/295D-XCH6] (last visited Jan. 28, 2023); Equifax to Pay Up to $700 Million in US Data Breach Settlement, CNBC, https://www.cnbc.com/2019/07/22/equifax-to-pay-up-to-650-million-in-data-breach-settlement.html [https://perma.cc/MWE7-Z5TR] (last updated Jul. 22, 2019, 12:16 PM).

  153. Joint Econ. Comm. Democrats, The Economic Toll of Gun Violence 1–3, https://www.jec.senate.gov/public/_cache/files/69fcc319-b3c9-46ff-b5a6-8666576075fe/the-economic-toll-of-gun-violence-final.pdf [https://perma.cc/YER2-RRWP]; Wayne Caswell, Gun Violence as a Public Health Issue, mHealthTalk.com, https://www.mhealthtalk.com/guns/ [https://perma.cc/GU77-NCML] (last updated Mar. 10, 2024).

  154. See Alex Seitz-Wald, Biden Wants to End Gun-Maker Liability Protections. That Could Sink the Industry, Advocates Say, NBC News (Apr. 9, 2021, 6:48 AM), https://www.nbcnews.com/politics/white-house/biden-wants-end-gun-maker-liability-protections-could-sink-industry-n1263556 [https://perma.cc/NZ36-C3Z9]. See generally Kristine Cordier Karnezis, Annotation, Validity, Construction, and Application of Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C.A. §§ 7901–7903, 17 A.L.R. Fed. 2d 167 (2007).

  155. See Karnezis, supra note 154.

  156. The Second Circuit decision is City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 392–93 (2d Cir. 2008). See infra Section III.D. This case is used to uphold the PLCAA’s Commerce Clause constitutionality in many post-Sebelius decisions. See, e.g., Traviseo v. Glock, 526 F. Supp. 3d 544, 549–550 (D. Ariz. 2021); see also Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 633 F. Supp.3d 425, 446–47, 450 (D. Mass 2022).

  157. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2283–84 (2022). Other than the “penumbras” argument, another way to claim a violation of substantive due process is by showing “egregious governmental conduct that is ‘shocking to the conscience.’” J. Michael McGuinness & Lisa A. McGuinness Parlagreco, The Reemergence of Substantive Due Process as a Constitutional Tort: Theory, Proof, and Damages, 24 New Eng. L. Rev. 1129, 1134 (1990). The Glucksberg decision provided validity to “Palko-ism” and clarified that the “history and traditions” and “so fundamental to our concept of constitutionally ordered liberty” tests were a viable (if not preferred) alternative to the vague penumbras argument. See Washington v. Glucksberg, 521 U.S. 702, 721, 727–28 (1997) (Palko-ism in this Comment is the citing of Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937), to refer to rights that are so fundamental that there would be no liberty or justice if they were sacrificed). Finally, the Dobbs opinion set the standard that “history and tradition” was the law of the land, effectively eliminating the penumbra approach for better or worse. David Schultz, Commentary, Is Any Precedent Safe Now? The Impact of Dobbs on Other Rights, Westlaw: Pract. Insights Comments. 1, 3–5 (July 14, 2022), https://1.next.westlaw.com/Document/I9d2ea05703a111ed9f24ec7b211d8087/View/FullText.html [https://perma.cc/DV2M-DKT9].

  158. McGuinness & McGuinness Parlagreco, supra note 157 at 1133 (explaining that substantive due process rights allow plaintiffs the ability to challenge government conduct whereas procedural due process is defined as notice and an opportunity for a hearing before deprivation of a right). Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 385 (Alaska 2013).

  159. Estate of Kim, 295 P.3d at 385.

  160. Id. at 389–91; Beretta U.S.A. Corp., 524 F.3d at 397–98.

  161. The Second Circuit addresses First Amendment, Tenth Amendment, Commerce Clause, and commandeering challenges to the PLCAA. Notably, the Second Circuit did not address substantive due process challenges to the PLCAA. Beretta U.S.A. Corp., 524 F.3d at 392–93. An additional important note is that Beretta was decided prior to the Sebelius restructuring of the Commerce Clause. Although the PLCAA may be valid under a 2008 interpretation of the Commerce Clause, it is not valid today. Id. at 385, 395.

  162. Estate of Kim, 295 P.3d at 380.

  163. Alison Frankel, Federal Gun Liability Shield Law Is Unconstitutional - Pa. Appeals Court, Reuters (Sept. 29, 2020, 4:15 PM), https://www.reuters.com/article/legal-us-otc-plcaa/federal-gun-liability-shield-law-is-unconstitutional-pa-appeals-court-idUSKBN26K3KW [https://perma.cc/AA79-K5JJ].

  164. Gustafson v. Springfield, Inc., 282 A.3d 739, 740 (Pa. Super. Ct. 2022).

  165. Id. at 741; Gustafson v. Springfield, Inc., No. 1126 of 2018, 2019 WL 11000305, at *1 (C.P. Westmoreland Cnty. Jan. 15, 2019).

  166. Gustafson, 282 A.3d at 748–50, 763, 765 (Olson, J., dissenting) (noting the changes Sebelius had on the Commerce Clause, and how a court could correctly come to a different result now than the Second Circuit did in Beretta).

  167. Id. at 750.

  168. The Valdez Oil Spill, ExxonMobil (Sept. 12, 2018), https://corporate.exxonmobil.com/operations/energy-technologies/risk-management-and-safety/the-valdez-oil-spill# [https://perma.cc/9LML-6QHS].

  169. See generally People v. Crumbley, No. 362210, 2023 WL 2617524 (Mich. Ct. App., Mar. 23, 2023), appeal denied, 995 N.W.2d 339 (Mich. 2023), and appeal denied, 995 N.W.2d 340 (Mich. 2023) (holding that a mother who negligently allowed her son to access firearms was liable for the injuries caused by her son in a school shooting).

  170. Eric Levenson & Lauren del Valle, Jennifer Crumbley, Mother of School Shooter, Found Guilty of Manslaughter in Test of Who’s Responsible for a Mass Shooting, CNN, https://www.cnn.com/2024/02/06/us/jennifer-crumbley-oxford-shooting-trial/index.html [https://perma.cc/WUF5-U2M6] (last updated Feb. 6, 2024, 3:47 PM).

  171. Crumbley, 2023 WL 2617524, at *1–2.

  172. Levenson & del Valle, supra note 170.

  173. Crumbley, 2023 WL 2617524, at *12–13; Levenson & del Valle, supra note 170.

  174. See Levenson & del Valle, supra note 170 (noting that the prosecutors relied on a novel legal theory).

  175. Rosner, supra note 97, at 427. See generally Ingrid M. Evans & Allen Rostron, Litigating Against the Firearm Industry, in 84 Am. Jur. Trials 109 (2024 ed. 2002).

  176. Gun Industry Lawsuit (re Sandy Hook Shooting in USA), Bus. & Hum. Rts. Res. Ctr., https://www.business-humanrights.org/en/latest-news/gun-industry-lawsuit-re-sandy-hook-shooting-in-usa/ [https://perma.cc/G47T-EFCJ] (last visited Jan. 28, 2023).

  177. Steve Almasy & Nicole Barron, Mother of Uvalde Massacre Victim Sues Gun Manufacturer, Gun Shop and Law Enforcement Officers, CNN (Nov. 29, 2022, 4:17 AM), https://www.cnn.com/2022/11/29/us/uvalde-lawsuit-gun-maker-seller/index.html [https://perma.cc/MV6B-T4JY]; Christine Hauser & Livia Albeck-Ripka, Victims of Highland Park Shooting Sue Gun Maker and Retailers, N.Y. Times (Sept. 29, 2022), https://www.nytimes.com/2022/09/29/us/highland-park-shooting-victims-lawsuit.html [https://perma.cc/Q66V-WY3H].