In July 2021, based on legislative findings that the illegal use of firearms contributes to the public health crisis of gun violence in the state, New York enacted a law called Section 898, which requires gun businesses to take certain steps to prevent their products “from being possessed, used, marketed or sold unlawfully in New York state.” Under the law, gun businesses who fail to take these steps are subject to civil prosecution or private suit.

In December of the same year, the National Shooting Sports Foundation (NSSF) filed suit against the New York Attorney General, arguing that Section 898 is unconstitutional because, among other reasons, it violates a legal doctrine known as the dormant Commerce Clause. The United States District Court for the Northern District of New York dismissed the case, agreeing with the state that NSSF did not plausibly allege a constitutional violation.

In June 2022, NSSF appealed the lower court’s decision to the United States Court of Appeals for the Second Circuit, where CAC filed an amicus brief urging the court to affirm.

Our brief begins by explaining that the Commerce Clause was the Framers’ response to state economic protectionism under the Articles of Confederation. After the Revolutionary War, Congress’s inability to regulate commerce left the states unable to adopt a uniform response to the country’s economic depression. As each state developed its own trade policies designed to benefit local commerce, tensions rose, and states began taking retaliatory measures against each other. Recognizing the urgent need to restore harmony among the states, Congress adopted the Commerce Clause unanimously and with essentially no debate at the 1787 Constitutional Convention as a means to end the pattern of economic competition among the states that threatened to unravel the political union.

As our brief further discusses, this history supports a narrow role for courts under the dormant Commerce Clause, limited to striking down protectionist state trade barriers but otherwise giving states wide leeway to legislate in ways that may affect interstate commerce. Longstanding Supreme Court precedent reflects precisely that understanding. Despite a temporary deviation beyond that narrow function in the late nineteenth century, the Court has focused its dormant Commerce Clause jurisprudence on economic protectionism consistently for over a century now.  And the Second Circuit has largely followed suit, repeatedly emphasizing that state health and safety laws, with neither the purpose nor effect of economic protectionism, are permissible under the Commerce Clause, even if they result in incidental effects on interstate commerce.

In light of this history and precedent, there is no basis for invalidating Section 898. The statute treats gun industry members even-handedly based on their conduct, not their location. It does not put New York in competition with any other state because it does not discriminate against other states’ commerce or favor local economic interests. Section 898’s clear purpose and effect—to ensure gun industry members take steps to mitigate the misuse of firearms in New York—is wholly unrelated to economic protectionism. Therefore, there is no basis for striking the law down, and the Second Circuit Court should affirm the decision of the lower court.