Last month in San Antonio, the American Bar Association House of Delegates adopted Resolution 604, a policy resolution drafted by the ABA Standing Committee on Gun Violence. Resolution 604, which the ABA website announced as “Civil Liability for Gun Companies,” calls for the repeal of the federal Protection of Lawful Commerce in Arms Act (“PLCAA”) and urges states to enact “Firearm Industry Responsibility Acts,” modeled on similar statutes adopted in ten states in the last few years. The ABA adopts some resolutions for legislative reform every year, and though they are not binding on anyone, they sometimes exert influence and provide reform advocates with well-reasoned arguments, model legislation, and useful research about the current state of the law among various states and in the United States Code (Note: I’ve linked to the correct Resolution above, but a Google search for “ABA Resolution 604” will include in its results several unrelated proposals from past years that had the same numbering; unfortunately, the ABA recycles the numbering of its policy resolutions, which clutters search engine results with irrelevant items and causes hallucinations for AI research tools).
Resolution 604 itself is twofold:
RESOLVED, That the American Bar Association urges Congress to repeal the Protection of Lawful Commerce in Arms Act, codified at 15 U.S.C. §§ 7901–7903 (“PLCAA”), which conveys special legal immunity to the firearms industry; and
FURTHER RESOLVED, That the American Bar Association urges states to enact laws that (1) set standards of responsible conduct for holders of Federal Firearms Licenses (“FFLs”) and other gun companies; and (2) provide paths for civil litigation for knowing failures to comply with such laws.
The more significant item, however, is the Report appended to these resolutions, which I discuss below.
Aftermath of a Unanimous SCOTUS Decision
Two important developments in this area of law occasioned the ABA’s Resolution: (1) a 2025 Supreme Court decision, and (2) a wave of related state legislative initiatives that started in 2021 and spread to a tenth state (Connecticut) in 2025. The ABA’s Report begins with a discussion of the Supreme Court’s June 2025 decision in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos. I wrote a short law review article about the case while it was still pending at the Court, and coauthored a longer article about PLCAA a few years ago, and I joined other academics in an amicus brief in the Smith & Wesson case.
The ABA Report observes that this was the first time the Supreme Court interpreted PLCAA, codified at 15 U.S.C. §§ 7901-7903, and specifically a crucial statutory exception for actions that directly violate the law, commonly called the “predicate exception.” Mexico’s lawsuit rested on the theory that U.S. gun makers were at least complicit in, and therefore partly responsible for, Mexico’s cartel violence because they continued supplying firearms to dealers who were allegedly flouting federal sales laws. According to the plaintiff (the government of Mexico), those U.S. gun manufacturers knew exactly which retail outlets in their distribution chain were hotspots for illegal straw purchases that funneled weapons across the border to arm the cartels. While I believe this allegation is undeniable, the Supreme Court disagreed. In a unanimous opinion, the Court held that Mexico’s pleadings never plausibly alleged that the companies knowingly aided or abetted any statutory violations, and the claims therefore could not proceed. At the same time, the Court did not embrace the gun industry’s proposed interpretation of PLCAA, which would have narrowed the predicate exception substantially, which in turn would have broadened the scope of the gun industry’s immunity. In other words, while the case was a devastating loss for the Mexican plaintiffs, the decision did not really change the landscape for PLCAA jurisprudence.
The ABA Report focuses not only on PLCAA and the need for its repeal or significant amendment, but also on a state legislative reform movement, in which states are enacting statutes designed to trigger the PLCAA predicate exception when they are violated. I discuss these statutes in more detail below, but the point of the legislative reforms, exacted in 10 states so far, is that the gun manufacturers or dealers who violate specific provisions of these state law would not have immunity from liability under PLCAA.
Some Law and Economics in the ABA Report
The ABA Report then pivots to a helpful background section about the immunity from lawsuits enjoyed by the gun industry. One paragraph of this Background section was particularly striking:
The result is a perverse incentive, where the least responsible gun companies gain a competitive advantage over their more responsible competitors. No responsible company would sell a gun to a felon or other illegal buyer, or funnel guns to gun traffickers. This opens the door for unscrupulous companies to pump their profits through illegal sales a responsible company would refuse to make, while also cutting corners and saving on expenses any responsible company would incur.
This is a sophisticated application of economic analysis, and it is worth unpacking a little. Special statutory immunity for a specific industry like this is especially beneficial for unscrupulous or irresponsible manufacturers, more so than for responsible or careful companies that would have been less likely to face lawsuits without the statute. If manufacturers do not have to worry about liability arising from products they sell to dangerous customers, then manufacturers can save costs, and increase profits, by being less careful or vigilant about their downstream supply chain. Companies that are less scrupulous will gain market share over those that are more scrupulous. In the end, either the least scrupulous manufacturers and sellers will occupy a disproportionately large share of the market, or the careful manufacturers will adapt and become less careful in order to compete—a type of race to the bottom. Moreover, the increased sales volume from being less careful allows manufacturers to reduce their prices while maintaining or increasing profits, which floods the market with even more low-price firearms, and the discounts are also available to criminal purchasers.
PLCAA Not the Only Hurdle for Potential Plaintiffs
Another interesting point in the Background section of the ABA report is its observation that potential plaintiffs face a number of obstacles to obtaining legal recourse besides PLCAA:
There are many reasons why it is so difficult to sue the gun industry. Some are structural. Gun violence disproportionately affects disadvantaged communities, and gun violence survivors are often under-resourced and unable to secure counsel to pursue a complicated legal case. There are also information asymmetries. Victims may never know the history of the gun that was used—how the shooter obtained it, from whom, and under what circumstances.
Plaintiffs in poverty often have a hard time finding legal representation, and even when they do, they are unable to fund the investigation and discovery needed to build a case. On top of the problem of lacking resources to track down evidence, the Report explains how a perennial appropriations rider known as the Tiahrt Amendment helps hide gun manufacturers from potential plaintiffs, by restricting gun tracing to law enforcement.
PLCAA Must Go
The Report then explains the series of events that led to the enactment of PLCAA in 2005, to give gun manufacturers special immunity from lawsuits over the injuries and deaths caused by their weapons, and it calls on Congress to repeal to statute. It correctly observes, “PLCAA stands as a significant outlier in American tort law: no other consumer product industry benefits from such broad immunity from civil suit, even when harm results from foreseeable and preventable misuse of their goods.” Revisiting the point about perverse incentives discussed above, it draws a comparison to other consumer products: “In other industries, civil litigation has played a critical role in driving safety innovation, internal compliance reforms, and disclosures of harmful practices. PLCAA has foreclosed similar developments in the firearms context.”
Of course, Congress does not often repeal statutes, especially where the statute is still popular with one of the two main political parties. In theory, if Democrats won a majority in both chambers of Congress as well as the White House, there could be enough votes to repeal PLCAA, but that has not occurred either of the times such a Democratic trifecta has existed since PLCAA’s enactment. For PLCAA to be repealed, it would have to be at the top of the legislative agenda and have a comfortable vote margin in both houses of Congress favoring repeal. This could happen someday, but it seems unlikely in the short term. Furthermore, according to Giffords Law Center, 32 states have a state-law version of PLCAA on the books that would still apply even if Congress repealed PLCAA itself, though the immunity would apply only for claims brought within those states’ courts. These PLCAA-like state immunity statutes are not a recent phenomenon, however, and are not mentioned in the ABA Report.
FIRA: The State-Law Pivot
In lieu of repealing PLCAA, Resolution 604 offers a workaround, urging states to pass Firearm Industry Responsibility Acts (“FIRA”). These are laws that set stricter, clearer standards of conduct for gun dealers and for marketing firearms to the public, violations of which would satisfy the “predicate exception” in PLCAA and strip violators of PLCAA immunity. One of the ABA’s points here was new to me, I confess:
[P]laintiffs alleging that FFLs have violated consumer protection or deceptive trade practices laws may still face a motion to dismiss claims for violations of statutory law on the grounds that those statutes do not specifically apply to firearms. FIRA statutes can address this issue by clarifying that certain statutes apply to the sale or marketing of firearms. By incorporating and referencing these generally applicable laws and making them actionable under the FIRA framework, state legislatures can avoid granting gun companies a unique exception to deceive consumers.
Another component of the proposed FIRA laws is to extend legal duties beyond Federal Firearm License (FFL) holders, to include those who sell incomplete guns (kits and parts), those who sell occasionally at gun shows, or “any person or entity engaged in the manufacture, distribution, importation, marketing, or sale of covered firearm products.” Remedies also matter for legislative reform, because injunctive relief or compensatory damages alone are often insufficient to help plaintiffs or incentivize the industry toward better behavior. Thus, the ABA recommends FIRA’s with a “broad range of remedies, including compensatory, statutory, and punitive damages; injunctive relief; restitution; and recovery of attorneys’ fees and litigation costs.” It also recommends creation of a state office dedicated to monitoring and enforcement of the laws.
So far, New York, California, Connecticut, Colorado, Delaware, Hawaii, Illinois, Maryland, New Jersey, and Washington have enacted FIRA laws. New York’s law has been upheld by the Second Circuit against a constitutional challenge from the gun industry. The ABA urges more states to follow this model: “Additional states should enact these laws to empower their residents and governments to pursue legal action against the small number of companies disproportionately driving the gun violence crisis in their state and across the country.”
The last section of the ABA Report outlines the organization’s history of adopting similar resolutions, starting in 1996 (years before PLCAA was enacted), calling for gunshot victims to have legal recourse against manufacturers through civil tort liability. This section highlights the ABA’s consistency on this point, and perhaps it adds to the sense that such legislative reform is long overdue. At the same time, this history shows that this is a longstanding problem and makes me less optimistic that real change could be just around the corner.
