Linda S. Mullenix (University of Texas School of Law) has posted Retreat, Regroup, Reload: Gunning for the States’ Public Nuisance Firearms Statutes (105 Texas Law Review Online, forthcoming October 2026) on SSRN. Here is the abstract:
This essay offers commentary on the Supreme Court’s June 15, 2026, denial of certiorari in National Shooting Sports Foundation, Inc v. James, the NSSF’s facial attack against the 2021 New York public nuisance firearms statute. The NSSF’s core argument centered on its contention that the 2005 Protection of Lawful Commerce in Arms Act (PLCAA) preempts state law under the Supremacy Clause. The Court’s certiorari denial is important because since 2021, ten states have enacted firearms accountability statutes based on the New York law that create a predicate statute exception to PLCAA’s comprehensive gun industry immunity from civil litigation. For the past five years the NSSF unsuccessfully has challenged these statutes across ten federal jurisdictions with the ultimate goal of achieving Supreme Court review. In denying certiorari, the Court declined to further address the contours of PLCAA immunity, just one year after the Court’s 2025 decision in Smith & Wesson Brands, Inc. et al., v. Estados Unidos Mexicanos. This essay discusses the implications of the Court’s certiorari denial for future litigation challenging the state accountability laws, either under PLCAA preemption theory or an array of constitutional arguments. It concludes that despite the Court’s refusal to hear the NSSF’s Second Circuit appeal, the NSSF is not done challenging the firearms statutes. As an aggressive and resilient gun industry advocate, the NSSF will simply retreat, regroup, reload, and return to continue its campaign against these new laws. In addition, the essay explores the NSSF’s unorthodox litigation strategy of repeatedly mounting facially unconstitutional pro-active strikes in federal courts, rather than waiting for an “as applied” state enforcement of the statutes. The essay documents the complete failure of the NSSF’s preemptive strategy and suggests that the NSSF’s record in these cases provides an object lesson in litigation strategy.
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