By Hillel Y. Levin & Timothy D. Lytton

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), granting the firearms industry sweeping immunity from civil lawsuits. However, PLCAA immunity is not absolute. This Article demonstrates that both state and federal courts have fundamentally misread PLCAA when adjudicating cases involving the scope of gun industry immunity. Properly understood, PLCAA permits lawsuits against the gun industry so long as they are based on statutory causes of action rather than common law. While broadly preempting state common law claims, PLCAA affords state legislatures autonomy in deciding how to regulate the gun industry within their borders.

Additionally, this Article addresses unresolved questions concerning constitutional limits on gun industry regulation. PLCAA explicitly strikes a balance between three constitutional principles. It safeguards the individual right to keep and bear arms by protecting the gun industry from civil litigation that would unduly curtail civilian access to firearms. It insists that the separation of powers requires that gun industry regulation should derive from legislation not common law adjudication. It affords state governments autonomy in deciding how to regulate the gun industry, recognizing that there are regional differences in attitudes about how to best reduce firearms-related violence. We counsel against interpretations of the Second Amendment’s application to gun industry regulation that would expand the right to keep and bear arms at the expense of other important constitutional principles such as the separation of powers and federalism

75 Florida Law Review 833 (2023),

By Brady United Against Gun Violence

Understanding the source of America’s gun violence epidemic is essential to building effective solutions to prevent it. For decades, laws passed at the behest of the gun industry have shielded important information from public view, making it nearly impossible to understand how, and from where, guns are funneled into the criminal market. Brady has used Freedom of Information Act (FOIA) requests to uncover information in an attempt to better understand how guns make their way from the legal marketplace to ultimately being used in crime. This report examines federal records that identify gun dealers subject to the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) Demand Letter 2 program — a program created to identify firearms dealers that sell the most crime guns and to aid law enforcement investigations. Only 2% of gun dealers nationwide are subject to this program, which includes dealers who have sold at least 25 guns that were recovered in crime during the past year that were found to have taken less than three years to make it from point of sale to being recovered in that crime. The ATF had identified that this low “time-to-crime” is a strong indicator of gun trafficking. This report, and its underlying national data, are the clearest look we’ve had in two decades as to which gun dealers sell the most crime guns. Absent complete transparency into the gun industry’s role in supplying firearms that fuel our nation’s gun violence epidemic, this data is the best indicator we have as to which gun dealers are fueling crime.

Washington, DC: Brady Campaign, 2024. 20p

By Elizabeth S. Haile

As ATF developed its database of more than two million crime guns, it released to law enforcement agencies, scholars, the press, local and state governments, and the public, numerous reports analyzing the patterns of crime gun sales, as well as portions of the trace database itself. Reports on crime gun trace data revolutionized our understanding of the illegal gun market and how it is supplied – establishing that strong gun laws have a profound impact on access to guns by criminals in the illegal market, and identifying the gun manufacturers, distributors, and dealers most responsible for supplying crime guns. Crime gun trace data has provided powerful evidence of the gun industry’s complicity in fueling the illegal market, showing that thousands of guns move quickly from a relatively small number of licensed gun dealers into the illegal market. Indeed, almost 60% of the crime guns traced in a given year were sold by only 1% of the licensed firearms dealers, while about 85% of gun dealers had no traces at all. The gun industry knows who the high-trace dealers are, but has refused to stop selling them guns or force them to reform. As a result, felons and other prohibited purchasers have been supplied the tools of violence – aided and abetted by careless or corrupt dealers. Our nation suffers from the violent gun crime that ensues. The gun industry has argued that ATF trace data is meaningless or insignificant. For example, gun industry spokespeople continuously claim that the concentration of crime guns originating from a relatively few dealers may indicate only that they sell a lot of guns. ATF’s own investigations have disproved this argument, however, as have academic studies.

Washington, DC: Brady Center for Prevent Gun Violence, 2006. 56p.

By Topher L. McDougal, Daniel Montolio and Jurgen Brauer

This study represents an attempt to understand the U.S. firearms market – the largest in the world – in economic terms. A model of the underlying interplay of legal firearms supply and demand is a prerequisite for reliably evaluating the effectiveness of pertinent existing state and federal firearms policies, and to amend them as necessary. The stakes are high: compared to other nation-states, per capita firearms-related harm in the United States (including suicides and homicides) is exceptionally high and, within constitutional strictures, state and federal firearms policymakers increasingly view it as a major and pressing society-wide problem. Virtually all firearms in the U.S. are initially manufactured and sold legally. Solving a simultaneous equation model using the instrumental variable of natural disasters and employing a unique dataset of U.S. firearms prices and quantities, this paper models – we believe for the first time in the literature – the U.S. market supply of, and demand for, firearms. Encouragingly, we find that this market operates as any other would be expected to, with the notable exception that lagged nonmilitary firearms stocks generate new market demand in a positive feedback loop. We test as predictors of market performance federal firearms legislation as instances of policy, as well as of extraterritorial armed conflict, firearms industry concentration, crime, and technology gaps between U.S. and imported firearms. Except for the time-limited Federal Assault Weapons Ban (1994-2004), we find (restrictive) firearms legislation not to influence sales. We also find that acute external violent conflict and certain levels of violent crime, including homicides and mass shootings, drive up unit sales, and that higher industry concentrations in certain submarkets boost quantity supplied, suggesting economies of scale. Taken together, this study’s findings may provide some empirical support for firearms stock reduction programs to reduce the total volumes of civilian arms.

San Diego: Small Arms Data Observatory, 2020. 35p