On September 8, 2026, a unanimous panel of the U.S. Court of Appeals for the Third Circuit revived the National Shooting Sports Foundation’s constitutional challenge to New Jersey’s gun-industry “public nuisance” statute. In NSSF v. Attorney General New Jersey, No. 25-2546, Circuit Judges David J. Porter, Paul B. Matey, and Thomas L. Ambro held that NSSF now has Article III standing to sue and that the federal abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), does not bar the case. Three years ago, the same court threw this lawsuit out as premature. What undid that dismissal was New Jersey’s own conduct in the years since.
A Broken Promise, Exposed
When NSSF first sued in 2022 over New Jersey’s A1765, codified at N.J.S. §§ 2C:58-33 et seq., the state told the Third Circuit it had nothing to worry about. As the panel now recounts, New Jersey’s Attorney General had “disavow[ing] prosecuting [NSSF] or its members just for participating in ‘lawful commerce,’” insisting the law reached only industry members’ “own misconduct.” The court accepted that assurance in NSSF I, 80 F.4th 215 (3d Cir. 2023), and dismissed the case for lack of standing, calling the threat of enforcement too speculative to support a lawsuit.
That assurance did not survive contact with reality. Within months, New Jersey brought enforcement actions against firearms retailers and manufacturers — six in total, including against NSSF’s own members Glock, Inc. and Sig Sauer. The panel did not mince words about what that record shows: the state that promised restraint went on to sue the industry’s most ordinary participants, not merely its rogue actors. On that record, the court held, NSSF’s members face a real and immediate threat, and NSSF now has standing to challenge the law that authorizes it.
Attacking the Supply Chain Is an Attack on the Right
I have made this argument for years, and this case is exactly why it matters: you do not need to ban a gun to destroy the right to keep and bear it. You only need to make it impossible to buy one. Most Americans are not gunsmiths. They buy firearms, ammunition, and accessories from dealers and manufacturers the same way they buy anything else, and a law engineered to bankrupt or intimidate that industry into silence accomplishes indirectly what an outright ban would do directly. Joseph Story and St. George Tucker both described an armed citizenry as the structural guarantee of a free republic. Cut the supply, and you have not regulated commerce — you have hollowed out the right itself. That is my characterization of what A1765 does; the Third Circuit’s September 8 ruling does not yet resolve whether the statute is unconstitutional. It resolves only that NSSF gets to make that argument in court.
The Law Congress Passed to Stop This
Congress passed the Protection of Lawful Commerce in Arms Act in 2005 to end a coordinated litigation campaign meant to bankrupt gun manufacturers through liability for the criminal acts of third parties over whom they had no control. The statute’s purpose, as the panel quotes it, is “to prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products… for the harm solely caused by the criminal or unlawful misuse of firearm products… by others when the product functioned as designed and intended.” PLCAA carved out narrow exceptions, including one for a company’s own knowing violations of law. The Supreme Court sharpened that exception just last year in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280 (2025), holding it applies only where a plaintiff plausibly alleges the manufacturer “participated in a firearms violation as in something that it wished to bring about and sought to make succeed.” NSSF’s theory is that New Jersey built A1765 to swallow that narrow exception whole, reaching ordinary, lawful commerce under the label of “misconduct.”
What the Panel Actually Held
The Third Circuit’s opinion makes a point worth preserving on its own terms: standing and Younger abstention are different inquiries, and New Jersey ran them together. As the panel put it, describing the trap the state’s position created: “New Jersey’s proposed rule would create a Catch-22. If the association sued before the enforcement action against one of its members, it would be dismissed for lack of standing, like in NSSF I. If it sued after the enforcement action, it would be dismissed under Younger.” The court rejected that heads-I-win framing, holding that neither standing nor abstention forecloses NSSF’s suit. The case now returns to the district court, where NSSF’s PLCAA-preemption, First Amendment, Second Amendment, and Commerce Clause claims against A1765 can finally be litigated on the merits — questions this opinion does not answer.
Small Victories, Compounding
The same two judges who wrote this opinion, Porter and Matey, also sat on the Third Circuit’s separate en banc ruling in Association of New Jersey Rifle and Pistol Clubs v. Attorney General New Jersey this past July, which held New Jersey’s semiautomatic-rifle ban unconstitutional. That case addressed a different statute and a different question; I raise it only to note that this is the same court, in the same term, growing increasingly skeptical of New Jersey’s approach to the Second Amendment. I expect NSSF to prevail on the merits when this case returns to the district court, but that is my forecast, not this opinion’s holding. What the Third Circuit decided on September 8 is narrower and, for that reason, more durable: New Jersey does not get to promise a court one thing and do another in the field, and the industry that arms law-abiding citizens finally gets its day in court to say so.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.