New Jersey Gov. Phil Murphy (AP Photo/Matt Rourke)
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Last July New Jersey Governor Phil Murphy, D-N.J., signed into law a measure that allows the state to sue firearm industry companies. The clear intention was to create a work-around for the Protection of Lawful Commerce in Arms Act. The National Shooting Sports Foundation promptly filed suit and in January of 2023, a District Court judge issues a preliminary injunction blocking the new law.

Attorney General Platkin appealed the injunction up to the Third Circuit Court of Appeals and last week the lower court’s injunction was vacated and the lawsuit dismissed.

The facts behind this case and the current outcome aren’t such that Governor Phil Murphy and Attorney General Matthew Platkin should be popping the bubbly. Both send out press releases celebrating the “victory,” but vacating of the injunction has more to do with the prospect of imminent/actual injury versus potential injury.

Judge Stephanos Bibas wrote on behalf of the unanimous three-judge panel that, “Federal courts are not forecasters. The Constitution limits our jurisdiction to disputes that have ripened fully.” The opinion heavily weighed the fact that there’s no actual real injury claim by the NSSF or one of their members, and observed, “Pre-enforcement challenges are unusual. To bring one, the plaintiff must show that the stakes are high and close at hand.”

In effect, the court ruled that the NSSF brought the suit too soon, before enforcement of the law has begun.

Had the NSSF come forward with a member or plaintiff that was being sued by New Jersey, the court indicated that their view might have been different. The court seems to be going about interpreting the law in a post-Bruen world so conservatively, that they want more precedent to build in the lower courts – at least that’s how it appears.

Start with past enforcement. A strong sign of future enforcement is that a law has been enforced against the plaintiff, a closely related party, or others for similar conduct. Id. at 159–60, 164. It is also telling if enforcement actions are “not a rare occurrence.” Id. at 161, 164–65. Yet the Law has not been en-forced against anyone, let alone the Foundation or its members. True, the Law is new, so lack of enforcement does not tell us much either way. But the Foundation bears the burden to show standing, and this indeterminate factor does not help it carry that burden.

The NSSF isn’t likely to give up on the Garden State challege. Larry Keane, the Senior Vice President of the Foundation said in a statement . . .

While we respectfully disagree with the court’s decision on our pre-enforcement challenge, it is important to note the court did not say New Jersey’s law does not violate the Protection of Lawful Commerce in Arms Act (PLCAA); it clearly does. During oral arguments, the panel appeared to have concerns with the law, as did the district court that enjoined enforcement. Should New Jersey’s attorney general attempt to enforce the law, we will immediately refile our complaint.

Should Governor Murphy or Attorney General Platkin try to flex this new power, they’ll be back in court again, and in short order. If the pair were smart, they’d hedge their bets by not using the law, and call it a win. But given the quality of leadership in the Garden State, there are plenty more embarrassing coming their way. 

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    • Have you been to NJ, NY, MA, CT, MD? You are not wrong but there is also little to be surprised with here.

      • Still it is ridiculous to be able to sue a manufacturer for what someone else does.

        • Clear violation of, The Protection of Lawful Commerce in Arms Act (PLCAA) is a U.S law, passed in 2005, that protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products.
          You deserve the Tyranny and Tyrants…You allow.

        • AMEN Dark, it seems that the DEMONcRATS don’t believe in laws which restrict their agenda.

        • No argument there but we both know how common sense and ridiculous tend to play out in our region when the majority speaks.

    • intentional, they want the company to either settle to avoid the case or stop selling guns to civilians, or go bankrupt. Win for them in any of those scenarios.

  1. “Federal courts are not forecasters. The Constitution limits our jurisdiction to disputes that have ripened fully.”

    When this view is convenient to/for progs.

    • Yes, many right wing conservatives hate the United States Constitution, they are all too willing to ignore the 1st Amendment.

      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.“

      Leave it to the Republicans to ignore our constitutional right “to petition the government for a redress of grievances”.

      Every law abridging the citizens’ right to petition the government for a redress of grievances is unconstitutional, we already have a mechanism for determining if a particular suit is frivolous, it’s all part of our common sense approach to preserving the right of citizens to petition the government.

      • “Petitioning the Government for Redress of Grievances” has absolutely nothing to do with sueing a manufacturer for a crime committed by a third party with a product. Two different things. One’s a Constitutional Right to seek relief from Government abuse and the other is Tort Law.

        Your Constitutional Argument is a fallacy dreamed up in your Commie Oriented Cranium.

        The attacks of the 1st Amendment are coming from your side of the fence Soyboy.

        • Liar69er likes to introduce unrelated topics to stir up sidebar debates, takes remarks out of context and openly misquotes others, and out-and-out lies about most things. It’s just how he rolls.

      • MINOR Miner49er, excuse me, but who in Conservative circles, has tried to do away with the 1st Amendment? Who has tried to silence you with your off the wall allegations, like this one? The fact is you and dacian the DUNDERHEAD have been caught in more lies than an elephant has fleas.
        The fact is that you Leftists using the power of the government succeeded in getting Facebook and Twitter to silence Donald Trump and other Conservative voices.
        Who has stopped you or any of your brotherhood of Ilk from petitioning the government?
        There fact is you are a bold faced liar!

    • Yep, and Ammo Manufacturers too. The whole flipping Accessory Side needs to get involved too. Galco, Bianchi, DiSantis the whole enchilada.
      When they can’t buy Holsters, Handcuffs and all the accoutrements for being a Brown Shirt maybe they’ll get the idea.

      • Thinking Iran or Chins would step up, or mebbe one of the old soviet bloc countries has some surplus they could have. It ain’t like China is already set to make all this stuff – oh, wait…

  2. This decision is a failure of the court. They apparently want to wait until a specific lawsuit is filed, this putting some plaintiff out for the HUGE cost of sucnh an action, and likely suffering other harms in result of the state action being chllenged in the not-yet-filed case.

    The court are admitting they are not sufficiently inlteligent to analise the law on its own and issue a judgement as to whether it is legal. They are bowong and scraping to their obvious masters. Were I one of those “judges” I’d be ashamed to hve my name on the majority opinion rendered.

    But whaddya speck from a court in the back pocket of a state like New Jersey.

  3. 24and7 is correct in that all manufacturers should stop supplying guns, ammo or anything else related to firearms. If a LEO is charged with a homicide, are they going to sue!

  4. BS ruling from the third circuit. These lawsuits should NEVER be allowed to fall on a manufacturer. It’s like saying that a woman can’t defend herself from a rapist until AFTER she has been raped.

    The system is broken. it’s quickly becoming time “…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

  5. If I understand this correctly, The court said that passing an unconstitutional law is not unconstitutional. However, enforcing an unconstitutional law may be unconstitutional.

    Really? Subjecting people to the threat of enforcement of an unconstitutional law is not a damage? Preparing law enforcement to enforce an unconstitutional law is not an expense ( a damage ) to the tax-payers? Mis-leading law enforcement, putting them in a position of having to enforce an unconstitutional law is not a damage?

    Of course these are damages! Real damages!

    The 3rd Circuit simply wanted to go get off work early for their bowling league.

      • Smirk! You are most certainly correct. However, they are probably not playing at Trump’s Bedminster NJ course.

  6. OT, sort of – in yet another satanic move of the kind so loved by bolseviks – Homeland Security is giving money to the cities that take in “migrants”.

    I note in passing that the flood of immigrants is a manifestation of racketeering, and sanctuary cities are co-conspirators.

    Next up – the DEA will be subsidizing the fuel bills of smugglers.

  7. OT, sort of – in yet another satanic move of the kind so loved by bol$eviks – Homeland Security is giving money to the cities that take in “migrants”.

    I note in passing that the flood of immigrants is a manifestation of racketeering, and sanctuary cities are co-conspirators.

    Next up – the DEA will be subsidizing the fuel bills of smugglers.

  8. The Protection of Lawful Commerce in Arms Act say that you can’t do this, yet activist judges will twist and turn a blind eye to the law.
    “Rich men north of Richmond”

  9. This NJ AG is also big on teachers grooming kids. 2A hawks need to stand with Family Values and Parents Rights groups. More power to fight evil.

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