Predicate Exception Re-Defined:
Second Circuit Affirms State Gun-Specific Public Nuisance Statute under PLCAA

Commentary on National Shooting Sports Foundation, Inc. v. James, 90 F.4th ___ (2d Cir. 2025)

1 | Introduction

In National Shooting Sports Foundation, Inc. v. James, the U.S. Court of Appeals for the Second Circuit cemented a crucial principle at the crossroads of federal pre-emption, firearms regulation, and state police powers: a state statute that expressly targets the firearms industry can function as a valid “predicate statute” under the Protection of Lawful Commerce in Arms Act (PLCAA) and therefore escapes PLCAA’s broad immunity bar.

The decision arises from a facial, pre-enforcement challenge by a trade association (NSSF) and fourteen firearms manufacturers, importers, and distributors to New York General Business Law §§ 898-a – e (2021). The statute declares that gun-industry members who “knowingly or recklessly” endanger the public through the sale or marketing of firearms — or who fail to institute “reasonable controls and procedures” — commit a public nuisance actionable by state officials or private plaintiffs.

Plaintiffs alleged three constitutional infirmities:

• Express and conflict pre-emption by PLCAA.
• Violation of the dormant Commerce Clause (discrimination, undue burden, and extraterritoriality).
• Facial vagueness under the Fourteenth Amendment.

Both the district court (D’Agostino, J.) and the Second Circuit rejected those claims in full, with Judge Jacobs filing a concurrence emphasizing the “narrow aperture” through which valid claims may still pass.

2 | Summary of the Judgment

The Second Circuit affirmed dismissal under Rule 12(b)(6). Key holdings:

1. PLCAA Pre-emption. Section 898 “falls within PLCAA’s predicate exception” because it expressly regulates firearms. Consequently, it is not expressly or conflict-pre-empted.
2. Dormant Commerce Clause. The statute neither discriminates against, nor unduly burdens, interstate commerce, and — as facially drafted — does not regulate wholly extraterritorial conduct.
3. Vagueness. The “reasonableness” standard and the illustrative list of compliance measures provide adequate notice; therefore, the law is not void for vagueness on its face.
4. Facial-Challenge Burden. Plaintiffs failed the “no-set-of-circumstances” test applicable to facial challenges.

Accordingly, the court affirmed the district court’s judgment and left Section 898 intact for future, case-specific enforcement.

3 | Detailed Analysis

3.1 Precedents Cited and Their Influence

• City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008)
  • Established the three-category test for what counts as a “statute applicable to the sale or marketing of firearms.”
  • The panel relied heavily on Beretta to classify § 898 as a predicate statute because it “expressly regulates firearms.”
• District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163 (D.C. 2008)
  • Coined the term “predicate exception.”
• Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 145 S. Ct. 1556 (2025)
  • Clarified that PLCAA’s predicate exception “opens a path” to liability where statutes are knowingly violated and such violation proximately causes harm.
  • The majority and concurrence drew on this fresh Supreme Court guidance to underscore the knowledge/proximate-cause gating function.
• Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) and Healy v. Beer Institute, 491 U.S. 324 (1989)
  • Provided the dormant Commerce Clause framework (undue burden & extraterritoriality).
• Washington State Grange v. Republican Party, 552 U.S. 442 (2008) and United States v. Salerno, 481 U.S. 739 (1987)
  • Set the “no-set-of-circumstances” standard for facial constitutional challenges, central to the court’s dismissal.

3.2 Court’s Legal Reasoning

a. PLCAA Express Pre-emption

“Because § 898 expressly regulates firearms, it satisfies Beretta and falls within PLCAA’s predicate exception.”

• Statutory text: PLCAA exempts actions where defendant “knowingly violated a State or Federal statute applicable to the sale or marketing of [firearms] … and the violation was a proximate cause of the harm” (§ 7903(5)(A)(iii)).
• Beretta test: statute (a) expressly regulates firearms, (b) has been applied to firearms, or (c) clearly implicates firearms commerce. § 898 meets (a).
• The examples in PLCAA (“knowingly made any false entry” and “aided, abetted … prohibited buyer”) are illustrative, not exhaustive; “including” is a term of enlargement (citing Burgess v. United States).

b. Conflict Pre-emption

Although § 898 lacks an explicit “knowledge” and “proximate cause” clause, the court held that this does not create an unavoidable conflict; compliant applications are plainly possible. Facially, therefore, the statute survives.

c. Dormant Commerce Clause

1. No Facial Discrimination. The legislature amended “qualified product” to remove interstate-commerce language, mooting plaintiffs’ argument that only interstate products are covered.
2. No Undue Burden. Under Pike, plaintiffs identified no in-state competitor favored, nor any clearly excessive burden relative to the public-safety benefits.
3. No Extraterritorial Regulation. Each operative subsection ties liability to a New York nexus — conduct that “endangers” New York or products “offered for sale in New York.” Hypotheticals about wholly out-of-state actors were insufficient on a facial challenge.

d. Vagueness

Reasonableness is a ubiquitous legal standard; § 898 supplies examples (inventory controls, anti-straw-purchase policies, truthful advertising). Those markers suffice for facial clarity.

3.3 Impact of the Decision

• Expansive Reading of Predicate Exception. States may now craft gun-specific statutes — even using a public-nuisance framework — that bypass PLCAA immunity, so long as the statute expressly targets firearms.
• Blueprint for Other States. Similar bills are pending (e.g., California, New Jersey). The Second Circuit’s endorsement will embolden legislatures and provide a litigation roadmap.
• Limits of Facial Challenges. The court underscores the difficulty of facial claims; future plaintiffs will have to wait for concrete enforcement and bring as-applied challenges.
• Insurance & Compliance Pressure. Manufacturers must implement “reasonable controls” across national operations lest downstream harm in New York expose them to liability.
• Concurrence’s Warning. Judge Jacobs signalled that § 898 actions lacking knowledge/proximate cause or based on mere recklessness may be quickly pre-empted. Trial courts and removal practice (to federal court) will be key gatekeepers.

4 | Complex Concepts Simplified

• PLCAA (Protection of Lawful Commerce in Arms Act)
  A 2005 federal statute shielding gun manufacturers and sellers from civil liability when their lawful products are misused criminally by third parties. Contains narrow exceptions — the “predicate exception” is the most litigated.
• Predicate Exception
  Think of it as a “loophole” built into PLCAA: if a gun maker first violates a separate statute directly relevant to firearm sales/marketing and that violation proximately causes harm, victims may sue.
• Facial vs. As-Applied Challenge
  • Facial: plaintiff claims the law is invalid in every scenario (“no set of circumstances”).
  • As-Applied: plaintiff challenges the law only as it affects their specific conduct or case.
• Dormant Commerce Clause
  A judge-made doctrine inferred from the Constitution’s Commerce Clause; prohibits state laws that discriminate against, burden, or regulate interstate commerce beyond a state’s borders.
• Public Nuisance
  A flexible tort theory allowing governments (or sometimes private actors) to abate conduct that unreasonably interferes with public rights (health, safety, peace). Traditionally applied to pollution, vice, or unsafe property — now extended to gun-industry practices.

5 | Conclusion

The Second Circuit’s affirmation in NSSF v. James marks a turning-point in the decades-long tug-of-war between federal firearms immunity and state public-safety innovation. By declaring that a statute expressly regulating firearms qualifies as a PLCAA predicate, the court:

• Validates New York’s unique public-nuisance approach;
• Invites similar legislative strategies nationwide;
• Signals that only concrete, case-specific challenges — especially where knowledge or proximate cause are dubious or where extraterritorial effects materialize — stand a realistic chance of toppling such statutes.

For practitioners, the decision demands meticulous compliance policies, rigorous record-keeping, and strategic litigation planning. For lawmakers, it offers a constitutional roadmap for threading the PLCAA needle. And for courts, it places renewed emphasis on as-applied adjudication to ensure state innovation does not eclipse congressional intent.