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.