NSSF Sues Illinois to Block New Gun Control Law That Violates First and Second Amendments, PLCAA

By
Dan Zimmerman
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44

Over the weekend, Illinois’ rotund governor, who’s never seen an anti-gun bill he couldn’t support, signed a bill into law that’s designed to muzzle the free speech of gun manufacturers and retailers. He spoke before an adoring crowd of Second Amendment deniers at an Everytown civilian disarmament rally in Chicago over the weekend. He then signed a bill into law that prohibits commercial speech that can arbitrarily be determined to somehow appeal to children, “militants,” or others who might later use the weapons illegally (that means criminals for all of Chicago’s Brandon Johnson voters out there).

In other words, there’s no way for any gun maker or seller to adequately minimize their risk and reasonably comply with such a law short of stopping all advertising for firearms. And the language of the law doesn’t restrict its reach to only potentially problematic marketing materials within the Land o’ Lincoln. Illinoisans can sue for violations that take place in other states, too.

Today, the NSSF filed suit to block enforcement of the law, seeking to have it declared an unconstitutional violation of both the First and Second Amendment, in addition to violating the Protection of Lawful Commerce in Arms Act (read the complaint here).

From the complaint . . .

Under HB 218, the “sale, manufacturing, importing, or marketing of a firearm-related product” anywhere in the country may be deemed to violate Illinois law (and justify the imposition of sweeping liability), even if it complied with all state and federal regulations, if an Illinois judge or jury later finds that such conduct “contribute[d] to a condition in Illinois that endangers the safety or health of the public.”

Although the statute purports to be aimed at preventing firearms from being used in such a way that endangers public safety or health, HB 218 does not regulate the use (or misuse) of firearms. Nor does it impose liability on individuals who misuse firearms to the detriment of themselves or others. Instead, HB 218 regulates selling, manufacturing, and advertising lawful (and constitutionally protected) firearms and related products. In other words, HB 218 regulates commerce in and speech relating to arms—even when that commerce and speech takes place entirely outside of Illinois, as will often be the case. HB 218 also removes traditional elements of tort law that ensure that judges and juries do not impose liability on private parties for constitutionally protected conduct. Making matters worse, the statute jettisons traditional proximate cause in favor of allowing state courts to impose liability on licensed industry members for the actions of thirdparty criminals with whom the industry members never dealt.

None of that is consistent with the Constitution. The First Amendment prohibits states from punishing wide swaths of truthful speech about lawful products, even if the products are dangerous or the speech is unpopular. The Second Amendment protects commerce in arms. Numerous constitutional provisions prohibit states from regulating conduct that takes place wholly beyond their borders, even when that commerce has effects within the state. And the Due Process Clause prohibits states from punishing one private party for the conduct of another.  

All of that is reason enough to invalidate Illinois’ new statute. But there is an even more obvious problem with HB 218: It is squarely preempted by federal law. In the late 1990s and early 2000s, several state and local governments sought to use novel applications of common-law theories like negligence and nuisance to impose civil liability on manufacturers and sellers of firearms and ammunition when third parties misused their products. Congress saw these lawsuits for what they were: unconstitutional efforts to stamp out lawful and constitutionally protected activity. To end such incursions, Congress enacted the Protection of Lawful Commerce in Arms Act in 2005 by wide margins on a substantially bipartisan basis. The PLCAA expressly prohibits and preempts state-law civil actions “brought by any person against a manufacturer or seller of [firearms or ammunition] … for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of [firearms or ammunition] by the person or a third party.” 

Here’s the NSSF’s press release announcing the lawsuit . . .

NSSF, The Firearm Industry Trade Association, filed a legal challenge to Illinois’ unconstitutional law that seeks to muzzle firearm manufacturers’ and retailers’ First Amendment right of free commercial speech and to regulate industry members’ commercial conduct in every state of the Union. Gov. J.B. Pritzker signed the Firearm Industry Responsibility Act into law and NSSF immediately filed its challenge.

“The flawed logic of this unconstitutional law is second only to the contempt for which the authors and Governor Pritzker hold for the Constitutionally-protected right of the citizens of his state to keep and bear arms,” said Lawrence G. Keane, NSSF’s Senior Vice President and General Counsel. “This law bans commercial free speech, which is protected by the First Amendment. It also requires firearm manufacturers and retailers to establish undefined ‘reasonable controls’ to prevent criminals from lying on background check forms. The irony is that the firearm industry works hand-in-hand with the ATF and Justice Department to prevent illegal straw purchases of firearms while the governor signs laws that set criminals free on the streets to prey on the innocent citizens of Illinois. Just like Governor Pritzker’s signature on a law banning cash bail, this law empowers criminals and punishes those who obey the law. We are confident that this unconstitutional law will not survive.”

Illinois’ Firearm Industry Responsibility Act criminalizes First Amendment-protected commercial free speech by banning advertising with vague definitions of “intent to appeal to minors.” Gun control politicians in Illinois are attempting to restrict law-abiding citizens from passing on safe firearm handling and shooting skills to the next generation by squelching ability to depict it in advertising. Only adults over the age of 18 can legally purchase a long gun and only adults over 21 can legally purchase a handgun.

This law also victimizes lawful firearm manufacturers and retailers for crimes committed by remote third parties. This law would allow lawsuits against firearm retailers for being the victims of “smash-and-grab” burglaries and robberies.

This law shifts the blame of responsibility for an illegal straw purchase from the criminal committing the crime to firearm manufacturers and retailers. The law requires manufacturers and retailers to employ ill-defined “reasonable controls,” yet each and every retail firearm purchase requires a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Form 4473 to be completed and signed by the purchaser attesting that the intended recipient of the firearm is, in fact, the purchaser. Lying on that form is a federal felony, punishable by up to 15 years in prison and a $250,000 fine.

The firearm industry partners with the ATF and the Justice Department on the “Don’t Lie for the Other Guy” program to warn the public of the punishment for this crime. Individuals flouting the law are responsible for their criminal actions and must be held accountable. No business can be held responsible for the illegal and criminal acts of those who consciously choose to violate the law.

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44 COMMENTS

  1. We’re waiting for them to come after Guns Save Life. While we don’t manufacture guns, we do manufacture cockleburs under the Governor’s saddle.

  2. > Illinois’ rotund governor,

    Why is this relevant?

    Oh, the author is Zimmerman. The grade-school level childishness makes more sense now…

    • Because fat people who are not of significantly advanced age or disabled are not to be trusted.

      A glance at them and you know that they lack self control, self respect, any sense of personal responsibility, common sense or decency and are prone to repetitive bad decisions. They’re also obviously selfish because they expect to be taken care of, mostly with other people’s money but also their energy, when their obesity leads to inevitable and obvious health problems that have to be dealt with.

      If they can’t take care of themselves in this regard they cannot take care of others in any capacity. When this is something they do by choice that makes them entirely fucking useless to the species.

      Fat, disgusting, slovenly pieces of shit are pieces of shit, entirely untrustworthy and only useful once landwhaling becomes legal.

        • People who are willingly obese at 55 will, on average, cost the Medicare system $430,000 more than people who are not as of 2020, we’ll have to see where Bidenomics goes before we can figure out what that cost is now and into the future. They represent a notable drag/misallocation of GDP, in fact.

          Which is interesting because they statistically have a much shorter life expectancy. Obesity rises in this country by age until age 75 and then drops off really, really, really fast. I think we can go out on a limb and say that this is not because people get a gym membership at 76 or 77. They don’t make it that far, yet they cost hundreds of thousands more per person.

          Between the heart issues, neurological issues, immune issues, circulatory issues and the risk for nearly two dozen cancers that are higher than the risk of cancer for a pack-a-day smoker of the same age, the drug costs for these people skyrocket. And that doesn’t count the extra hours they spend with doctors, surgeons, nurses and others nor the extra “heavy duty” equipment that hospitals have to purchase to deal with them.

          Obesity of the voluntary type is also highly correlated with extremely low Vitamin D levels across the age spectrum, which isn’t a concentration issue because that’s not how Vitamin D works. This is indicative that they do not experience sunlight, don’t eat a proper diet and also eschew even ultra cheap supplements.

          This is doubly interesting because obesity linked to disability or senescence doesn’t correlate with this until well over the age of 80.

          All in all you’re talking heart, blood, neurological, cancer, disease, circulatory, kidney and other organ disfunction spiking their health risks through the roof across the board. And they choose this.

          Taken together this is indicative of a wide pattern of unwise behaviors across a spectrum of behavior types because just sitting, yeah just sitting, outside would fix the problem.

          And we know this is a very, very serious problem just by glancing at the applications submitted by companies like Sanofi which, due to the regulation involved internationally to prevent bioweapon proliferation, literally cannot build plants to produce long acting insulin fast enough to keep up with the increasing demand which is why a box of something like Lantus Solostar pens costs $3000 if you pay cash for it. While this is a global problem to some degree, the USA is a major driver of it and this, combined with the health issues above is a major driver of Medicare and medical insurance costs in the US.

          So, they’re costly to others by choice, they’re shortening their own lifespan and reducing their capacity to do something useful at the same time and doing this while expecting other people to work to make up the difference and take care of them.

          On top of that they feel like shit which is one of the reasons so many people are so grouchy, because their metabolism is completely disregulated by the fat content of their own body. Talk to someone who used to be obese for five minutes and you’ll discover this is absolutely true because they can’t shut the fuck up about how much better they feel a decade after losing the weight.

          So, yeah, they’re selfish, undisciplined douchebags who expect everyone else to pick up the slack and take care of them to boot.

          They don’t give a fuck about themselves, so much so that they’re committing slow motion suicide while whining about “body positivity” how can they be trusted to care about others?

          They can’t. Just like the guy who needs to be talked down from jumping off a bridge probably isn’t going to make a good babysitter until he gets his shit together.

          You’ll pardon me, but when I can see from 600 yards that you don’t take care of yourself, I doubt you can take care of a state.

        • ILLANNOY state cop’s better watch their azzes enforcing fat boy’s edicts. There’s millions of legal gat owner’s who don’t take kindly to losing their rights. jsled is the dumbest troll who blathers on TTAG🙃

      • While you are not wrong………damn someone get hit with inflated medical/insurance/tax bills lately?

        • I’ve been on this rant since I was 15.

          That’s when I noticed that the kids from elementary school, who had recess taken away from them, got alarmingly fatter and also shorter every year there was a new 6th grade class in the middle school.

          The “invention” of “childhood Type II diabetes” as a common diagnosis is something that should have a lot of people up against the wall for the their final moments.

        • He has had some brutally-expensive health bills in the not-distant past directly related to what he commented on… 🙁

        • “He has had some brutally-expensive health bills in the not-distant past directly related to what he commented on…”

          The irony of this is not, and never has been, lost on me.

        • “…I noticed that the kids from elementary school, who had recess taken away from them, got alarmingly fatter and also shorter every year there was a new 6th grade class in the middle school.”

          Shorter? That’s a bit odd, because childhood height is directly related to nutritional inputs, and getting fatter indicates excess calories that can be used for growth.

          Look at the heights of the US men fighting WW2, for example. A whole lot were mid 5-feet in height as a result of growing up during the peak years of the Great Depression from ’27 (?) through the beginning of WW2, which had the effect of breaking the Great Depression. It was malnourishment that literally stunted their growth…

        • “That’s a bit odd, because childhood height is directly related to nutritional inputs…”

          Calories ≠ Nutritional inputs. A 12 pack of Bud Heavy a day isn’t going to help a kid grow, for example. In fact, it will assist greatly in washing out necessary nutrients from their body since alcohol is a pretty potent diuretic.

          People grew taller in the past century not just due to increased calories but due to increased overall nutrition. [For example, longer bones mean you need more calcium to build those bones.]

          Which is to say that that they kept the *traditional* forms of food but increased the availability of them.

          We, on the other hand, have increased the availability of calories only. HFCS is known to stunt children’s growth, for example. MSG is linked to this as well, as is the consumption of excess seed oils. [There’s a reason they call it Canola Oil, because Rapeseed Oil doesn’t sound as good.]

          Also, a sedentary lifestyle, organ dysfunction and hormonal imbalance brought on by poor diet, lack of sleep and even certain commonly prescribed childhood meds like the legal meth they use for ADHD. All contribute to a lack of stature as young adults.

          Certainly there are other factors we don’t even know about but the ones we do know about… well, we pretty much encourage people to do the inverse of what we know to be right.

          Part of this, a large part, is simply the “tyranny of metrics”, which is to say that your outcomes are constrained by the measurements you choose to employ. Counting things that are easy to count encourages us to count those things whether they’re a good predictor of outcome or not.

          I mean, counting B cells primed for a specific response is hard and expensive, it’s far easier to count antibodies but nowhere near as useful in most cases. You can see a lot of that kind of thing in the past few years, no?

        • “The irony of this is not, and never has been, lost on me.”

          *Zero* irony intended, I thought I laid out a factual-based representation of what you related here a few years back…

        • “I thought I laid out a factual-based representation of what you related here a few years back…”

          You did. I’m not in any way criticizing you.

          I’m simply pointing out the irony of the situation itself which is so thick and rich you could drizzle it on your pancakes.

    • Your wife’s boyfriend just told you to get him another beer. You better hurry before he gets cross with you.

    • Because you moronic progs likely would whine if the author accurately described the Ill governor as a “lardas s useles s PO S scumsuc king lawyer).

    • As a fat guy I have no issues with the fat comments and references to the Governor of ill noise. or to the former governor of nu joisy.

      I do take issue with Strych9’s rant(s). My wife and I are both fat, have been essentially all of our lives, and have been unable to rectify that situation despite extensive efforts, including medications.

      I do financially support us fully, including paying for our health and life insurance. We do not get any government support and do not want any.

      As for medicare/medicaid, it’s a socialist system and that is why it is not functional. It will drag itself down regardless of fat people or any other group you wish to scapegoat.

      If you do not want to subsidize others the answer to that is a true free market in all things including healthcare, and the elimination of government social(ist) programs like welfare.

      Speaking of healthcare, I happen to work in healthcare and provide real physical care to people on a daily basis putting the lie to your baseless accusations there.

      So with all due respect, go F yourself.

      • “…and have been unable to rectify that situation despite extensive efforts, including medications.”

        This would seem to fall under the term “disability” which I specifically used as an exclusion in my first line, which loath as I am to quote myself, I will repeat verbatim and with emphasis: “Because fat people who are not of significantly advanced age or disabled are not to be trusted”.

        Metabolic disorders are disabilities, yes? Many are even protected by the ADA?

        Indeed, both of these things are true.

        Further, my use of a term such as “willingly obese” would clearly preclude people such as yourself and your wife even if you didn’t feel that the initial use of terms like “disability” or “disabled” were sufficiently specific to your situation. For, were you willingly obese, you would not have expended the prior effort to lose weight which you have. Ergo, you are not willingly obese (given that you meet that definition in the first place) but rather unwillingly obese.

        So, all in all, I’m not really sure why you’d be mad about what I said. It was all true and wasn’t directed at you or anyone like you in the first place. It was, quite clearly, directed at people like, say, Lizzo.

        However, if you feel that my presentation could have been clearer in delineating that my vitriol was reserved specifically for those who do this to themselves please advise me on how I could make that clearer in the future and I will happily make the necessary corrections in any subsequent comments on the topic or tangential to it.

        Now, as a final note, one might argue that perhaps Pritzker falls into this category of metabolic disorder, is therefore disabled under my definition and doesn’t qualify for the level of insensitive commentary I have leveled at him, and perhaps he does.

        However, he’s also an asshole politician who’s openly subverts the Constitution, so fuck him either way. I’m not feeling generous in his case and therefore default to the assumption that he’s just a self-serving fat fuck because his behavior indicates that this is the case and, also, he’s not deserving of being given the benefit of the doubt regardless of his actual circumstance.

        • “It was, quite clearly, directed at people like, say, Lizzo“

          Wow, what an amazing ability you have, you see someone in pictures and video and instantly diagnosed their health condition.

          Perhaps you would share with the group how you know for certain that she does not have any form of metabolic disease causing her to uncontrollably gain weight, even though she follows a vigorous exercise regimen.

        • Liar69er, perhaps you would share with the group how you know for certain that Lizzo follows a vigorous exercise regimen.

        • “Perhaps you would share with the group how you know for certain that she does not have any form of metabolic disease causing her to uncontrollably gain weight”

          She promotes “body positivity” publicly and never offers a medical reason for why.

          Were she an honest broker and victim of a disorder, she would say something along the lines of “Look, some people have a medical condition like mine, therefore this criticism is misplaced…”.

          She doesn’t do that. She lashes out viciously at even the most mild criticism of her public appearance and then gets caught fat-shaming her own backup dancers to boot.

          Ergo, she’s just a fatty using the current state of American health (~43% obese at last check-in) to further her status in life because it’s an effective virtue signal to all the overweight-by-choice people out there.

          And to reiterate because you’re not good at anything beyond the most simple of thought exercises, even if she’s does have such a disorder and keeps it undisclosed, she’s a terrible person as previously mentioned because she’s not an honest broker.

          This is evidenced rather explicitly by her treatment of her own stage assistants and others. She is therefore, at best a two faced charlatan and therefore deserves no sympathy from me or anyone else regardless of underlying medical condition.

          It’s amazing how good you, Miner, are at staying focused on a single step in a logical chain without ever even attempting to glance at the downstream effects of that particular step in front of you.

          It is, honestly, rather amazing how you would criticize my offhand comments on Lizzo when you spend nearly every post on this forum deeply committed to the psychological analysis of just about everyone to right of Mao.

          Why, just recently you not only mentally diagnosed another poster but then went so far as to suggest that they were dangerous just before you extrapolated that to, literally, a million other people. And then later you diagnosed crypto-racism in another commenter because reasons.

          I mean, you expect me to take you seriously when you quote a dictionary at me for the definition of “faith” but you can’t find the article of faith at the core of science?

          Pardon me, but you’re pretty much a worldclass jackass at that point. Google would have told you the answer but you’re not even smart enough to use tech to play smart.

          I bet you’re boss at checkers. Well, at least for a move or two. I’m still split 50/50 on if you’re a bot or not. Either way, you’re an NPC.

      • “I do financially support us fully, including paying for our health and life insurance“

        So you don’t seem to understand the concept of insurance, which spreads the cost of medical care onto the entire customer base.
        This means that every unnecessary expense, such as those caused by gluttony and slovenliness, are inflicted on every member of the customer base, including those who attempt to eat a healthy diet and maintain proper physical activity.

        Your behavior is causing the cost of medical insurance to increase every year, just the same as cigarette smokers and alcohol drinkers.

        Put down the fork and take a walk.

        • “So you don’t seem to understand the concept of insurance”

          That’s right, you don’t Miner49er.

        • “This means that every unnecessary expense, such as those caused by gluttony and slovenliness, are inflicted on every member of the customer base …”

          Liar69er, you obviously haven’t applied for any type of health insurance during the past 20 years or so. If you had, you’d have noted an extensive list of questions about an individual’s health conditions. Once the premium $$ was quoted, you would see clearly that the overall condition of your health has a direct affect on your rates.

  4. Notable by its absence in this lawsuit is the NRA. Make note of that the next time they call you for a donation.

    • Dr, the NRA doesn’t file lawsuits. The NRA doesn’t train instructors. The NRA doesn’t donate money to political campaigns. The NRA doesn’t promote safety in schools. The NRA doesn’t sponsor shooting competitions.

      The NRA doesn’t do anything except get sued and spend member dues on stuff for the execs.

      Don’t harsh the narrative.

  5. Everyone who is dragged into the legal system, for whatever reason, needs to make a DEMAND to be shown their written guarantee that they will actually GET a fair trial! If we do not have that guarantee, then every so-called “trial” instantly becomes one of two things. Either it is a pure gamble with no known outcome to it, or, it is a scam that does have a known outcome to it. There are no other choices there! Then we are left with the question of who can force us to make bets and take gambles against our will, and who can force us to be a part of a scam?

  11. If guns kill people, when can victims sue car manufacturers for killing loved ones? Those unregulated cars are just a lethal plague on society.

    • That is what The Green New Deal is for. The federal government trying to put them out of business. They are using the idea of electric cars to make them waste money.

    • “If guns kill people, when can victims sue car manufacturers for killing loved ones? Those unregulated cars are just a lethal plague on society.”

      Cars on public roads are licensed, registered, and in most places are required to carry liability insurance.

      Are you sure you want guns to be legally-treated like most cars on the road currently are, dumbass? 🙁

  14. When you elect a commie Fred Flintstone clone.. You get the government you deserve..He should have never been re-elected!… Deal with it Illinois I’m from Alabama!

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