Gun industry group challenges new firearms marketing restrictions

[August 16, 2023]  By PETER HANCOCK
Capitol News Illinois
[e-mail]

SPRINGFIELD – A gun trade association has filed a federal lawsuit challenging a new Illinois law that restricts how gun dealers and manufacturers market their products.

The Connecticut-based National Shooting Sports Foundation filed the suit in the Southern District of Illinois on Monday, just two days after Gov. JB Pritzker signed it into law.

“The flawed logic of this unconstitutional law is second only to the contempt for which the authors and Gov. Pritzker hold for the constitutionally protected right of the citizens of his state to keep and bear arms,” Lawrence G. Keane, NSSF’s senior vice president and general counsel, said in a news release.

NSSF is also a plaintiff in a federal suit challenging the recently enacted ban on assault weapons and large-capacity magazines. That case is now pending before the Seventh Circuit Court of Appeals.

The new law, dubbed the Firearm Industry Responsibility Act, subjects the gun industry to the state’s Consumer Fraud and Deceptive Business Practices Act, which allows the state or private individuals to file civil lawsuits for violations.

It passed with the backing of Illinois Attorney General Kwame Raoul, who is named as a defendant in the lawsuit.

The law prohibits practices such as marketing to children and encouraging people to engage in illegal paramilitary or private militia activity. It also allows dealers and manufacturers to be held liable for creating a condition that endangers public health or safety.

In its lawsuit, NSSF claims the law violates the First Amendment right to free speech, the Second Amendment right to bear arms, and the 14th Amendment guarantee of due process.

The suit also claims that the law imposes liability in Illinois for actions committed by other individuals or in other states. And it argues that the state law is preempted by a federal law called the Protection of Lawful Commerce in Arms Act.

Congress passed the PLCAA in 2005, during the George W. Bush administration, in response to numerous lawsuits around the country against manufacturers, distributors, dealers, and importers of firearms for deaths and injuries caused by third parties who misused the weapons or used them for criminal activity.

Illinois Attorney General Kwame Raoul listens during a May House floor debate of a bill subjecting gun dealers and manufacturers to civil action if they use deceptive marketing practices. (Capitol News Illinois photo by Jerry Nowicki)

Supporters of the Illinois law argued that PLCAA was never intended to shield the gun industry from liability for violations by manufacturers or dealers of state or federal laws that govern the sale or marketing of firearms. In fact, the federal statute contains a specific exception for those cases.

State Rep. Jennifer Gong-Gershowitz, D-Glenview, the lead House sponsor of the bill, said during floor debate that the new provisions were only intended to clarify what is already state law, specifically that the gun industry is not immune from liability for its own violations of state law.

“This clarification is necessary to ensure that courts correctly interpret that the (Consumer Fraud and Deceptive Business Practices Act) falls within the predicate exception and is not preempted by PLCAA,” she said. “The bill ensures that the firearm industry does not get special treatment under Illinois law.”

But NSSF argues that the Illinois law explicitly authorizes people to sue gun dealers and manufacturers for damages caused by a third party’s misuse of a firearm, something PLCAA specifically prohibits.

Senate President Don Harmon, D-Oak Park, the lead sponsor of the bill in the Senate, disputed that claim.

“As the Senate President said when this legislation passed the Senate, we are confident it does not conflict with federal law,” his deputy press secretary Elizabeth Mitchell said in an email statement.

Raoul’s office said in a separate statement that it is “committed to defending the Firearm Industry Responsibility Act in the interest of public safety.”

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.