384 524 federal reporter, 3d series - brainmasslitigation.pdf · 384 524 federal reporter, 3d...

384 524 FEDERAL REPORTER, 3d SERIES

Accordingly, the District Court properlyheld in Penn Traffic II that the ProjectAgreement remained executory as of thetime Penn Traffic moved to reject it, andthe District Court’s subsequent orderaffirming the Bankruptcy Court’s grantof the motion to reject the ProjectAgreement is hereby affirmed.

CONCLUSION

The April 9, 2007, Memorandum andOrder Deciding Appeal from Order ofBankruptcy Court is affirmed.

,

CITY OF NEW YORK, Plaintiff–Appellee–Cross–Appellant,

Michael R. Bloomberg,* Mayor of theCity of New York, Christine C.Quinn,** Speaker of the New YorkCity Council, New York City Healthand Hospitals Corporation, Plaintiffs–Appellees,

United States of America, Intervenor,

v.

BERETTA U.S.A. CORP., BrowningArms Co., Colt’s Mfg. Co., Inc., ForjasTaurus, S.A., Glock Inc., PhoenixArms, Sigarms, Inc., Smith & WessonCorp., Sturm, Ruger and Co., Inc.,Taurus International Manufacturing,Inc., Sigarms Sauer GmbH, f/k/a J.P.Sauer & Sohn Inc., Tanfoglio FratelliS.R.L., Williams Shooters Supply,Walter Craig, Inc., Valor Corp., SportsSouth, Inc., Southern Ohio Gun, Inc.,RSR Group, Inc., Ron Shirk’s Shoot-ers’ Supplies, Inc., Riley’s Inc., Supply,Inc., Lipsey’s, Inc., Lew Horton Distri-bution Co., Kiesler Police Supply Inc.,Hicks, Inc., Glen Zanders Fur andSporting Goods, Co., Faber Brothers,Inc., Euclid Avenue Sales, EllettBrothers, Inc., Dixie Shooters Supply,Inc., Davidson’s Supply Company,Inc., Chattanooga Shooting Supplies,Inc., Camfour, Inc., Brazas SportingArms, Inc., Bill Hicks & Company,Bangers, L.P., Alamo Leather Goods,Inc., AcuSport Corporation, Defen-dants–Appellants–Cross–Appellees,

ment. Because these arguments anticipateissues that may arise in claims-adjudicationproceedings that have not yet commenced, wethink it best to permit the Bankruptcy Courtto consider these arguments in the first in-stance.

COR also relies upon Columbia County In-dus. Dev. Agency v. Hudson Valley Care Ctrs.,Inc., No. 1:06–CV–1158 (LEK), 2007 WL2261585 (N.D.N.Y. Aug.2, 2007), in a submis-sion to this Court pursuant to Federal Rule ofAppellate Procedure 28(j). That reliance ismisplaced. Columbia County is clearly distin-guishable from the present case in severalrespects. Most obviously, Columbia Countydid not discuss the specific issue before ushere—whether post-petition performance bythe non-debtor party to a contract may rendera contract non-executory for purposes of

§ 365 of the Bankruptcy Code. Aside from thefact that this case presents a question notresolved by the district court in ColumbiaCounty, we are satisfied, in any event, thatthere was far greater performance by the ap-pellant there, and that the unique tax policyconcerns in that case are here without paral-lel.

* Pursuant to Federal Rule of Appellate Proce-dure 43(c)(2), Michael R. Bloomberg, Mayorof the City of New York, is automaticallysubstituted for former Mayor Rudolph W.Guiliani as a plaintiff-appellee.

** Pursuant to Federal Rule of Appellate Proce-dure 43(c)(2), Speaker of the New York CityCouncil Christine C. Quinn is automaticallysubstituted for former Speaker Peter F. Val-lone as a plaintiff-appellee.

385CITY OF NEW YORK v. BERETTA U.S.A. CORP.Cite as 524 F.3d 384 (2nd Cir. 2008)

B.L. Jennings, Inc., Bryco Arms, Inc.,Carl Walther GmbH, FMJ, a/k/a FullMetal Jacket, Glock GmbH, H & R1871, Inc., Hi–Point Firearms, Nave-gar Inc., d/b/a Intratec USA, Inc., O.F.Mossberg and Sons, Inc., Pietro Be-retta SP.A, Rossi, S.A., John DoeManufacturers 1–100, China North In-dustries Corporation, a/k/a Norinco,Remington Arms Co. Inc., Charco2000, Inc., Llama Gabilondo Y Cia,Marlin Firearms Co., Savage Arms,Inc., U.S. Repeating Arms Co., Inc.,Scott Wholesale Co., Inc., Manufac-turer Defendants, Distributor Defen-dants, Manufacturer and DistributorDefendants, Defendants,

Joan Truman Smith, Interested–Party,

John F. Curran, Interested Party.

Docket Nos. 05–6942–cv (LEAD),05–6964–cv (XAP), 06–3692–cv

(CON), 06–3695–cv (XAP).

United States Court of Appeals,Second Circuit.

Argued: Sept. 21, 2007.

Decided: April 30, 2008.

Background: City brought action againstfirearms manufacturers to abate allegedpublic nuisance caused by alleged negli-gent and reckless merchandising of hand-guns. The United States District Court forthe Eastern District of New York, Jack B.Weinstein, J., 401 F.Supp.2d 244, deniedmanufacturer’s motion to dismiss based onthe Protection of Lawful Commerce inArms Act (PLCAA), but certified its orderfor immediate appeal. Both parties appeal-ed.

Holdings: The Court of Appeals, Miner,Circuit Judge, held that:

(1) PLCAA did not violate CommerceClause;

(2) PLCAA did not legislatively direct theoutcome of specific cases withoutchanging the applicable law, in viola-tion of Constitution’s separation ofpowers doctrine;

(3) PLCAA did not commandeer anybranch of state government in violationof the Tenth Amendment;

(4) PLCAA did not deprive plaintiffs oftheir First Amendment right of accessto the courts; and

(5) state criminal nuisance statute was not‘‘applicable to the sale or marketing’’ offirearms, as required for city’s actionto fall within predicate exception toPLCAA.

Affirmed in part and reversed in part.

Katzmann, Circuit Judge, dissented andfiled an opinion.

1. Federal Courts O660.1When a district court certifies a ques-

tion of controlling law, the entire order iscertified and an appellate court may as-sume jurisdiction over the entire order, notmerely over the question as framed by thedistrict court. 28 U.S.C.A. § 1292(b).

2. Commerce O82.50 Products Liability O2

Protection of Lawful Commerce inArms Act (PLCAA), requiring dismissal ofactions against firearms manufacturersbased on a third party’s criminal use of afirearm, did not violate the CommerceClause; Congress explicitly found thatthird-party suits barred by PLCAA were adirect threat to firearms industry, whichwas unquestionably interstate in nature,and the PLCAA only reached suits havingan explicit connection with or effect oninterstate commerce, eliminating any con-cerns about Congressional intrusion into‘‘truly local’’ matters. U.S.C.A. Const.Art. 1, § 8, cl. 3; Protection of Lawful


Commerce in Arms Act, §§ 2–4, 15U.S.C.A. §§ 7901–7903.

3. Constitutional Law O2383 Products Liability O2

Protection of Lawful Commerce inArms Act (PLCAA), requiring dismissal ofactions against firearms manufacturersbased on a third party’s criminal use of afirearm, did not legislatively direct the out-come of specific cases without changingthe applicable law, in violation of Constitu-tion’s separation of powers doctrine;PLCAA permissibly set forth a new rule oflaw applicable both to pending actions andto future action. U.S.C.A. Const. Art. 3,§ 1 et seq.; Protection of Lawful Com-merce in Arms Act, §§ 2–4, 15 U.S.C.A.§§ 7901–7903.

4. Constitutional Law O2383Article III of the Constitution forbids

legislatures from prescribing rules of deci-sion to the Judicial Department of thegovernment in cases pending before it;however, this prohibition does not takehold when Congress amends applicablelaw. U.S.C.A. Const. Art. 3, § 1 et seq.

5. Products Liability O2 States O4.16(3)

Protection of Lawful Commerce inArms Act (PLCAA), requiring dismissal ofactions against firearms manufacturersbased on a third party’s criminal use of afirearm, did not commandeer any branchof state government in violation of theTenth Amendment, as it imposed no affir-mative duty of any kind on any of them.U.S.C.A. Const.Amend. 10; Protection ofLawful Commerce in Arms Act, §§ 2–4, 15U.S.C.A. §§ 7901–7903.

6. Constitutional Law O1204 Products Liability O2

Protection of Lawful Commerce inArms Act (PLCAA), requiring dismissal ofactions against firearms manufacturers

based on a third party’s criminal use of afirearm, did not deprive plaintiffs of theirFirst Amendment right of access to thecourts; the PLCAA immunized a specifictype of defendant from a specific type ofsuit and did not impede, let along entirelyforeclose, general use of courts by would-be plaintiffs. U.S.C.A. Const.Amend. 1;Protection of Lawful Commerce in ArmsAct, §§ 2–4, 15 U.S.C.A. §§ 7901–7903.

7. Constitutional Law O1435

The right to petition the governmentfor a redress of grievances, which has beenrecognized as one of the most precious ofthe liberties safeguarded by the Bill ofRights, extends to all departments of theGovernment, including the courts.U.S.C.A. Const.Amend. 1.


The constitutional right of access tothe courts is violated where governmentofficials obstruct legitimate efforts to seekjudicial redress.


The right to petition the governmentfor a redress of grievances exists in thepresence of an underlying cause of actionand is not violated by a statute that pro-vides a complete defense to a cause ofaction or curtails a category of causes ofaction. U.S.C.A. Const.Amend. 1.

10. Weapons O19

State criminal nuisance statute wasnot ‘‘applicable to the sale or marketing’’ offirearms, as required for city’s abatementaction against firearms manufacturers tofall within predicate exception to Protec-tion of Lawful Commerce in Arms Act(PLCAA), requiring dismissal of actionsagainst firearms manufacturers based on athird party’s criminal use of a firearm;criminal nuisance statute was a statute ofgeneral applicability that did not encom-


pass the conduct of firearms manufactur-ers of which the city complained. Protec-tion of Lawful Commerce in Arms Act,§ 4(5)(A)(iii), 15 U.S.C.A. § 7903(5)(A)(iii);N.Y.McKinney’s Penal Law § 240.45.

Michael L. Rice, Thomas E. Fennell,Jones Day, Dallas, TX, for Defendant–Appellant–Cross–Appellee Colt’s Manufac-turing Company LLC.

Lawrence S. Greenwald, Lawrence P.Fletcher–Hill, Catherine A. Bledsoe, Gor-don, Feinblatt, Rothman, Hoffberger &Hollander, LLC, Baltimore, MD, for De-fendant–Appellant–Cross–Appellee Beret-ta U.S.A. Corp.

Clem C. Trischler, Robert R. Leight,Pietragallo, Bosick & Gordon, Pittsburgh,PA, for Defendant–Appellant–Cross–Ap-pellee Smith & Wesson Corp.

Joanne M. McLaren, Greenberg Trau-rig, LLP, New York, NY, for Defendant–Appellant–Cross–Appellee Smith & Wes-son Corp.

James P. Dorr, James B. Vogts, AimeeB. Anderson, Sarah L. Olson, Wildman,Harrold, Allen & Dixon, Chicago, IL, forDefendant–Appellant–Cross–AppelleeSturm, Ruger & Co., Inc.

John F. Renzulli, Christopher Renzulli,Scott C. Allan, Renzulli Law Firm, LLP,New York, NY, for Defendant–Appellants–Cross–Appellees Glock, Inc. and BrowningArms Co.

Timothy A. Bumann, J. Clayton Che-shire, Budd Larner, P.C., Atlanta, GA,Kathleen Marchetti, Budd Larner, P.C.,Short Hills, NJ, for Defendants–Appel-lants–Cross–Appellees Taurus Internation-al Manufacturing, Inc. and Forjas Taurus,S.A.

Christopher M. Chiafullo, Whitney R.Chelnik, The Chiafullo Group, LLP, Wat-chung, NJ, for Defendants–Appellants–Cross–Appellees AcuSport Corporation;Alamo Leather Goods, Inc.; Bill Hicks andCompany, Inc.; Brazas Sporting Arms,Inc.; Camfour, Inc.; Chattanooga Shoot-ing Supplies, Inc.; Davidson’s SupplyCompany, Inc.; Dixie Shooters Supply,Inc.; Ellett Brothers, Inc.; Euclid AvenueSales Co.; Faber Brothers, Inc.; GlenZanders Fur and Sporting Goods Co.;Hicks, Inc.; Kiesler Police Supply, Inc.;Lew Horton Distributing Company, Inc.;Lipsey’s, Inc.; MKS Supply, Inc.; Riley’s,Inc.; Ron Shirk’s Shooters Supply, Inc.;RSR Group, Inc.; Southern Ohio Gun,Inc.; Sports South, Inc.; Valor Corpora-tion; Walter Craig, Inc.; and WilliamsShooters Supply.

Scott L. Braum, Timothy Rudd, Scott L.Braum & Assoc., Ltd., Dayton, OH, forDefendants–Appellants–Cross–AppelleesMKS Supply, Inc.; Euclid Avenue SalesCo., and Walter Craig, Inc.

Richard J. Leamy, Jr., Wiedner &McAuliffe, Ltd., Chicago, IL, for Defen-dants–Appellants–Cross–Appellees FaberBrothers, Inc. and Riley’s Inc.

William M. Griffin, Jonann Coniglio Chi-les, Karen S. Halbert, Jamie HuffmanJones, Friday, Eldredge & Clark, LittleRock, AR, for Defendant–Appellant–Cross–Appellee Browning Arms Co.

Robert L. Joyce, Wilson, Esler, Mos-kowitz, Edelman & Dicker LLP, NewYork, NY, for Defendants–Appellants–Cross–Appellees Sigarms, Inc. and SigSauer GmbH.

John J. McCarthy, III, The McCarthyLaw Firm, PLLC, New York, NY, forDefendant–Appellant–Cross–Appellee Tan-foglio Fratellis S.R.L.

Michael I. Branisa, Michael J. Zomcik,Branisa & Zomcik, P.C., Houston, TX, for


Defendant–Appellant–Cross–AppelleePhoenix Arms.

Andrew Zajac, Fiedelman & McGaw,Jericho, NY, for Defendants–Appellants–Cross–Appellees AcuSport Corporation;Alamo Leather Goods, Inc.; Bill Hicks andCompany, Inc.; Brazas Sporting Arms,Inc.; Camfour, Inc.; Chattanooga Shoot-ing Supplies, Inc.; Davidson’s SupplyCompany, Inc.; Dixie Shooters Supply,Inc.; Ellett Brothers, Inc.; Euclid AvenueSales Co.; Faber Brothers, Inc.; GlenZanders Fur and Sporting Goods Co.;Hicks, Inc.; Kiesler Police Supply, Inc.;Lew Horton Distributing Company, Inc.;Lipsey’s, Inc.; MKS Supply, Inc.; Riley’s,Inc.; Ron Shirk’s Shooters Supply, Inc.;RSR Group, Inc.; Southern Ohio Gun,Inc.; Sports South, Inc.; Valor Corpora-tion; Walter Craig, Inc.; and WilliamsShooters Supply.

Michael A. Cardozo, Corporation Coun-sel of the City of New York (LeonardKoerner, Grace Goodman, Eric Proshan-sky, June Buch, Gail Rubin, Richard J.Costa, Melanie C.T. Ash, of counsel), NewYork, NY, for Plaintiff–Appellee–Cross–Appellant, the City of New York.

Michael S. Elkin, Thomas P. Lane, The-len, Reid & Priest LLP, New York, NY,for Plaintiff–Appellee–Cross–Appellant,the City of New York.

Dennis A. Henigan, Jonathan E. Lowy,Brian J. Siebel, Elizabeth S. Haile, DanielVice, Brady Center to Prevent Gun Vio-lence, Washington, DC, for Plaintiff–Ap-pellee–Cross–Appellant, the City of NewYork.

Robert S. Peck, Center for Constitution-al Litigation, Washington, DC, for Plain-tiff–Appellee–Cross–Appellant, the City ofNew York.

Paul R.Q. Wolfson, Wilmer Cutler Pick-ering Hale and Dorr LLP, Washington,

DC, for Plaintiff–Appellee–Cross–Appel-lant, the City of New York.

Elliot M. Schachner, for Benton J.Campbell, United States Attorney for theEastern District of New York, (VaruniNelson, Assistant United States Attorney,of counsel), Brooklyn, NY, for Intervenor,the United States of America.

Beth S. Brinkman, Seth M. Galanter(Brian R. Matsui, on the brief), Morrison& Foerster LLP, Washington, DC, forAmici Curiae Legal Community AgainstViolence, Educational Fund to Stop GunViolence, and The Violence Policy Center.

Stephen D. Poss, P.C., Kevin P. Martin,Randall B. Clark, Nicholas D. Gray,Christina E. Nolan, Michael P. Sugrue,Michael C. Winfield, Goodwin ProctorLLP, Boston, MA, for Amicus CuriaeNRA Civil Rights Defense Fund.

Andrew Cuomo, Attorney General of theState of New York (Caitlin J. Halligan,Solicitor General, Daniel Smirlock, DeputySolicitor General, Jennifer Grace Miller,Assistant Solicitor General, of counsel), Al-bany, NY, for Amicus Curiae New YorkState Attorney General.

Before: MINER, CABRANES, andKATZMANN, Circuit Judges.

Judge KATZMANN dissents in aseparate opinion.

MINER, Circuit Judge:

Defendants-appellants-cross-appellees,manufacturers and wholesale sellers offirearms (‘‘Firearms Suppliers’’), appealfrom so much of an order entered in theUnited States District Court for the East-ern District of New York (Weinstein, J.) asdenies their motion, grounded on the claimrestriction provisions of the Protection ofLawful Commerce in Arms Act, for dis-missal of the complaint. In the complaint,plaintiff-appellee-cross-appellant, the City


of New York (the ‘‘City’’), seeks injunctiverelief to inhibit the diversion of firearmsinto illegal markets. The District Courtdetermined that the Act did not violate theUnited States Constitution, and that theAct’s statutory exception for claims basedon the violation of a state statute applica-ble to the sale or marketing of firearms ismet by New York’s criminal nuisance stat-ute. The City cross appeals from so muchof the above-described order as rejects, inaccordance with the position taken by in-tervenor United States of America, variousconstitutional challenges to the Act raisedby the City. Because we conclude that thePLCAA (1) bars the instant action and (2)represents a permissible exercise of Con-gress’s power under the CommerceClause, we affirm the order of the DistrictCourt in part and reverse in part.

BACKGROUND

I. Introduction

The action giving rise to this appeal wascommenced on June 20, 2000, when theCity filed a complaint against the FirearmsSuppliers seeking injunctive relief andabatement of the alleged public nuisancecaused by the Firearms Suppliers’ distri-bution practices. The City claimed thatthe Firearms Suppliers market guns tolegitimate buyers with the knowledge thatthose guns will be diverted through vari-ous mechanisms into illegal markets. TheCity also claimed that the Firearms Sup-pliers fail to take reasonable steps to inhi-bit the flow of firearms into illegal mar-kets. On October 2, 2001, the action wasstayed due to issues arising from the Sep-tember 11, 2001 attacks on the WorldTrade Center. The initial stay of sixtydays was continued pending the outcomeof an appeal proceeding in state court in-volving the same claims for relief soughtby the State of New York against most ofthe defendants in this action. See Spitzer

v. Sturm, Ruger & Co., Inc., 309 A.D.2d91, 761 N.Y.S.2d 192, 194–95, leave to ap-peal denied, 100 N.Y.2d 514, 769 N.Y.S.2d200, 801 N.E.2d 421 (2003) (affirming dis-missal of the state’s common law publicnuisance claim). After the stay was lifted,the City filed a Second Amended Com-plaint (‘‘Amended Complaint’’) on January27, 2004.

On October 26, 2005, the Protection ofLawful Commerce in Arms Act, Pub.L.No. 109–92, 119 Stat. 2095 (codified at 15U.S.C. §§ 7901–03) (the ‘‘PLCAA’’ or the‘‘Act’’) became federal law. The PLCAAprovides that any ‘‘qualified civil liabilityaction that is pending on October 26, 2005,shall be immediately dismissed by thecourt in which the action was brought or iscurrently pending.’’ 15 U.S.C. § 7902(b).A ‘‘qualified civil liability action’’ is

a civil action or proceeding TTT broughtby any person against a manufacturer orseller of a [firearm distributed in inter-state or foreign commerce] TTT for dam-ages, punitive damages, injunctive or de-claratory relief, abatement, restitution,fines, or penalties, or other relief, result-ing from the criminal or unlawful misuseof a [firearm distributed in interstate orforeign commerce] by the person or athird party.

15 U.S.C. § 7903(5)(A). On the day thePLCAA was enacted, the Firearms Suppli-ers moved to dismiss the Amended Com-plaint pursuant to section 7902(b). In itsopposition to the Firearms Suppliers’ mo-tion to dismiss, the City argued that theAct did not bar its causes of action becausethis case fell within an exception to theforbidden qualified civil liability actions.Pursuant to an exception written into theAct, a suit may proceed when a plaintiffadequately alleges that a ‘‘manufacturer orseller of [firearms transported in interstateor foreign commerce] knowingly violated aState or Federal statute applicable to the


sale or marketing of [firearms], and theviolation was the proximate cause of theharm for which relief is sought.’’ 15U.S.C. § 7903(5)(A)(iii). This provisionhas been called the ‘‘predicate exception,’’which appellation we adopt. For purposesof this opinion, a statute upon which a caseis brought under the predicate exception isreferred to as a ‘‘predicate statute.’’ Thepredicate statute at issue in this case isNew York Penal Law § 240.45, CriminalNuisance in the Second Degree.1 TheFirearms Suppliers claimed that NewYork Penal Law § 240.45 may not serve asa predicate statute because the predicateexception is meant to apply to statutesthat are expressly and specifically applica-ble to the sale and marketing of firearms,and not to statutes of general applicability,such as section 240.45. The City also chal-lenged the constitutionality of the Act onvarious grounds. The United States inter-vened to defend the constitutionality of thePLCAA, taking no position on thePLCAA’s effect, if any, on the litigation.

On December 2, 2005, the United StatesDistrict Court for the Eastern District ofNew York (Weinstein, J.) denied the Fire-arms Suppliers’ motion to dismiss, findingthat the claim restriction provisions of thePLCAA did not require dismissal of thecase at bar. City of New York v. BerettaU.S.A. Corp., 401 F.Supp.2d 244 (E.D.N.Y.2005). The District Court held that, ‘‘[b]yits plain meaning, New York [Penal Law§ ] 240.45 satisfies the language of thepredicate exception requiring a ‘statute ap-plicable to the sale or marketing of [afirearm].’ ’’ Id. at 261. The District Courtalso found that if the Act did operate to

bar the City’s claims, it would be constitu-tional. Id. at 251.

The District Court certified its Decem-ber 2, 2005 order for immediate appeal tothis Court, pursuant to 28 U.S.C.§ 1292(b). Id. at 298 (‘‘There is a substan-tial ground for disagreement about a con-trolling issue of law—the applicability ofthe Act to the present litigation—and animmediate appeal may substantially ad-vance the ultimate termination of the liti-gation.’’). The Firearms Suppliers appealfrom the District Court’s denial of theirmotion to dismiss, and the City cross ap-peals from the District Court’s holdingthat the PLCAA is constitutional.

For the reasons that follow, we concludethat the City’s claim, predicated on NewYork Penal Law § 240.45, does not fallwithin an exception to the claim restrictingprovisions of the Act because that statutedoes not fall within the contours of theAct’s predicate exception. We also holdthat the PLCAA is a valid exercise of thepowers granted to Congress pursuant tothe Commerce Clause and that thePLCAA does not violate the doctrine ofseparation of powers or otherwise offendthe Constitution in any manner alleged bythe City.

II. The City’s Allegations

The factual bases for the City’s com-plaint are set forth in painstaking detail inNAACP v. Acusport, 271 F.Supp.2d 435(E.D.N.Y.2003), and City of New York v.Beretta U.S.A. Corp., 315 F.Supp.2d 256(E.D.N.Y.2004) (denying motion to dis-miss). Accordingly, our factual summaryis brief. The City seeks ‘‘injunctive relief

1. N.Y. Penal Law § 240.45 provides, in perti-nent part:

A person is guilty of criminal nuisance inthe second degree when TTT

By conduct either unlawful in itself or un-reasonable under all the circumstances, he

knowingly or recklessly creates or main-tains a condition which endangers the safe-ty or health of a considerable number ofpersonsTTTT


and abatement of the public nuisance thatdefendants cause, contribute to and main-tain by their marketing and distributionpractices.’’ Amended Complaint ¶ 1. TheCity alleges that the Firearms Suppliersknow that firearms distributed to legiti-mate retailers are diverted into illegalmarkets and that the Firearms Suppliers‘‘could, but do not, monitor, supervise orregulate the sale and distribution of theirguns by their downstream distributors ordealer-customers’’; ‘‘could, but do not,monitor, supervise or train distributors ordealers to avoid sales that feed the illegalsecondary market’’; and ‘‘make no effortto determine those distributors and deal-ers whose sales disproportionately supplythe illegal secondary market.’’ AmendedComplaint ¶ 8. In spite of New York City’sstrict controls on gun possession,

thousands of guns manufactured or dis-tributed by defendants were used tocommit crimes in the City of New York.This number includes only guns thatwere recovered in the course of a crime.The actual number of defendants’ ‘crimeguns’ used in New York City over thelast five years is vastly higher.

Amended Complaint ¶ 62.

According to the City, among the mech-anisms that serve to facilitate the move-ment of legally distributed handguns intoillegal markets are: (i) gun shows, atwhich non-licensed persons can sell to oth-er private citizens; (ii) private sales from‘‘non-stocking’’ or ‘‘kitchen table’’ sellers,who are not required to conduct back-ground checks or to maintain records thatFederal Firearms Licensees (‘‘FFL’’) arerequired to maintain; (iii) ‘‘straw pur-chases,’’ in which persons qualified to pur-chase handguns make purchases on behalfof those who are not so qualified; (iv)‘‘multiple sales,’’ in which a purchaser buysmore than one gun at the same time orduring a limited period of time for the

purpose of transferring the guns to un-qualified purchasers; (v) intentional illegaltrafficking by corrupt FFLs; (vi) theftsfrom FFLs with poor security, as well asfalse reports of theft by corrupt FFLs;and (v) oversupplying of markets wheregun regulations are lax. The City seeksinjunctive relief requiring the FirearmsSuppliers to take assorted measures thatwould effectively inhibit the flow of fire-arms into illegal markets.

DISCUSSION

I. Jurisdiction

Pursuant to 28 U.S.C. § 1292(b), thisCourt has the discretionary authority toentertain an appeal of a non-final order ofa district court ‘‘[w]hen a district judge, inmaking in a civil action an order not other-wise appealable under this section, shall beof the opinion that such order involves acontrolling question of law as to whichthere is substantial ground for differenceof opinion and that an immediate appealfrom the order may materially advance theultimate termination of the litigation.’’ 28U.S.C. § 1292(b). A district judge mustexpress such an opinion in writing in theotherwise non-appealable order. Id. Here,in its December 2, 2005 Memorandum andOrder, the District Court wrote, in rele-vant part: ‘‘There is a substantial groundfor disagreement about a controlling issueof law—the applicability of the [PLCAA]to the present litigation—and an immedi-ate appeal may substantially advance theultimate termination of the litigation.’’ Be-retta, 401 F.Supp.2d at 298.

[1] We have jurisdiction pursuant to 28U.S.C. § 1292(b) to review the constitu-tional questions decided by the DistrictCourt in addition to the issue of thePLCAA as a bar to the litigation. When adistrict court certifies, pursuant to 28U.S.C. § 1292(b), a question of controlling


law, the entire order is certified and wemay assume jurisdiction over the entireorder, not merely over the question asframed by the district court. See UnitedStates v. Stanley, 483 U.S. 669, 676–77, 107S.Ct. 3054, 97 L.Ed.2d 550 (1987) (explain-ing that 28 U.S.C. § 1292(b) ‘‘brings the‘order,’ not the question, before the [appel-late] court’’). The order here determinedthat the PLCAA does not apply to thislitigation and that, if it did apply, it wouldbe constitutional. This Court exercised itsdiscretionary authority and granted per-mission to appeal. We therefore reviewthe issue of the constitutionality of thePLCAA as well as the issue of the PLCAAas a bar to the litigation.

II. Standard of Review

The Firearms Suppliers styled their Oc-tober 26, 2005 motion before the DistrictCourt as a ‘‘Motion to Dismiss, or in theAlternative, for Judgement on the Plead-ings.’’ Both the denial of a motion todismiss, see Fed.R.Civ.P. 12(b)(6), and thedenial of a motion for judgment on thepleadings, see Fed.R.Civ.P. 12(c), are re-viewed de novo. See Miller v. Wolpoff &Abramson, L.L.P., 321 F.3d 292, 300 (2dCir.2003); see also DeMuria v. Hawkes,328 F.3d 704, 706 n. 1 (2d Cir.2003) (notingthat the legal standards of review for mo-

tions to dismiss and motions for judgmenton the pleadings ‘‘are indistinguishable’’).‘‘On a motion to dismiss or for judgmenton the pleadings we ‘must accept all alle-gations in the complaint as true and drawall inferences in the non-moving party’sfavor.’ ’’ Miller, 321 F.3d at 300 (quotingPatel v. Contemporary Classics of BeverlyHills, 259 F.3d 123, 126 (2d Cir.2001)).We review questions of the interpretationand constitutionality of a federal statute denovo. See, e.g., Muller v. Costello, 187F.3d 298, 307 (2d Cir.1999).

III. Constitutionality of the PLCAA 2

The City advances four arguments oncross-appeal with respect to the constitu-tionality of the PLCAA: (i) the PLCAA isnot a permissible exercise of Congress’spower to regulate interstate commerce;(ii) the PLCAA violates basic principles ofseparation of powers by dictating the out-come of pending cases; (iii) the PLCAA,by recognizing predicate exceptions de-fined by statute, i.e. by a state’s legislativebranch, but not by common law as inter-preted by state courts, violates the TenthAmendment by dictating which branch ofstates’ governments may authoritativelypronounce state law; and (iv) the PLCAAviolates the First Amendment’s guarantee

2. Our dissenting colleague contends that theconstitutionality of the PLCAA is ‘‘beside thepoint,’’ Dissent at 405, suggesting that our‘‘practice of constitutional avoidance’’ repre-sents a factor weighing in favor of certifica-tion. We are puzzled by this view for severalreasons.

First, the rules of certification promulgatedby both our Court and the New York Court ofAppeals make clear that, even if we acceptedour colleague’s suggestion to certify the predi-cate exception issue to the New York Court ofAppeals, it would be necessary first to pass onthe constitutional issues. Our local rules re-quire that we certify only state law questions‘‘that will control the outcome of a case.’’ 2dCir. Rule § 0.27. New York’s certification

statute does the same. See 22 N.Y. Comp.Codes R. & Regs. tit. 22, § 500.27 (‘‘Whenev-er it appears to the Supreme Court of theUnited States, any United States Court ofAppeals, or a court of last resort of any otherstate that determinitive questions of New Yorklaw are involved in a case pending before thatcourt for which no controlling precedent ofthe Court of Appeals exists, the court maycertify the dispositive questions of law to theCourt of Appeals.’’ (emphases added)).

Second, there is the fact that this case itselfrequires us to confront questions as to thePLCAA’s constitutionality. The City present-ed its constitutional arguments as an alterna-tive grounds for relief, and the District Courtspecifically ruled on these arguments.


of the right to petition the government toredress grievances through access to thecourts. For the reasons that follow, weagree with the District Court that ‘‘[t]hereis no violation of the United States Consti-tution,’’ Beretta, 401 F.Supp.2d at 272.

A. Commerce Clause Regulatory Pow-er

[2] The United States Constitutionvests Congress with the power ‘‘[t]o makeall Laws which shall be necessary andproper for carrying into Execution’’ itsauthority to ‘‘regulate Commerce with for-eign Nations, and among the severalStates.’’ U.S. Const. Art. I, § 8. Casesdecided by the Supreme Court pertainingto Congress’s authority to regulate inter-state commerce have identified three gen-eral categories of regulation in which Con-gress is authorized to engage pursuant tothe Commerce Clause. See Gonzales v.Raich, 545 U.S. 1, 16, 125 S.Ct. 2195, 162L.Ed.2d 1 (2005). First, Congress mayregulate the channels of interstate com-merce. Id. (citing Perez v. United States,402 U.S. 146, 150, 91 S.Ct. 1357, 28L.Ed.2d 686 (1971)). Second, Congresshas authority to regulate and protect theinstrumentalities of interstate commerceand persons or things in interstate com-merce. Id. ‘‘Finally, Congress’ [s] com-merce authority includes the power to reg-ulate those activities having a substantialrelation to interstate commerce, i.e., thoseactivities that substantially affect inter-state commerce.’’ United States v. Lopez,514 U.S. 549, 558–59, 115 S.Ct. 1624, 131L.Ed.2d 626 (1995) (internal citations omit-ted); see also NLRB v. Jones & LaughlinSteel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81L.Ed. 893 (1937) (‘‘Although activities maybe intrastate in character when separatelyconsidered, if they have such a close andsubstantial relation to interstate commercethat their control is essential or appropri-ate to protect that commerce from burdens

and obstructions, Congress cannot be de-nied the power to exercise that control.’’).It is the third category with which we arehere concerned.

The City claims that the activity that thePLCAA concerns itself with—civil litiga-tion against members of the gun industryfor unlawful acts committed by third par-ties—is not commercial in nature andtherefore is outside of Congress’s regulato-ry power. In support of its argument thatCongress has exceeded its power by regu-lating litigation, the City relies on Lopezand United States v. Morrison, 529 U.S.598, 120 S.Ct. 1740, 146 L.Ed.2d 658(2000), both of which involved statutesfound to bear only a tenuous relationshipwith interstate commerce. See Morrison,529 U.S. at 612, 120 S.Ct. 1740 (followingLopez and explaining that the ‘‘decision inLopez rested in part on the fact that thelink between gun possession [in a schoolzone] and a substantial effect on interstatecommerce was attenuated’’). Lopez in-volved the Gun–Free School Zones Act of1990, 18 U.S.C. § 922(q)(1)(A) (1988 &Supp. V), which the Court described as ‘‘acriminal statute that by its terms has noth-ing to do with ‘commerce’ or any sort ofeconomic enterprise, however broadly onemight define those terms.’’ 514 U.S. at561, 115 S.Ct. 1624. In Lopez, the govern-ment argued that the possession of guns inschool zones would affect interstate com-merce because: (i) the costs of violentcrime that might be caused by guns inschool zones will be spread throughout thepopulation through increased insurancecosts; (ii) increases in violent crime causedby guns in school zones would deter inter-state travel to areas that are perceived tobe unsafe; and (iii) ‘‘the presence of gunsin schools poses a substantial threat to theeducational process by threatening thelearning environment. A handicapped ed-ucational process, in turn, will result in a


less productive citizenry. That, in turn,would have an adverse effect on the Na-tion’s economic well-being.’’ Id. at 563–64,115 S.Ct. 1624.

The Lopez Court rejected these argu-ments, reasoning that if Congress couldpermissibly regulate activities with suchethereal ties to interstate commerce, nological limit could be imposed upon federalpower. The Court further held: ‘‘The pos-session of a gun in a local school zone is inno sense an economic activity that might,through repetition elsewhere, substantiallyaffect any sort of interstate commerce.Respondent was a local student at a localschool; there is no indication that he hadrecently moved in interstate commerce,and there is no requirement that his pos-session of the firearm have any concretetie to interstate commerce.’’ Id. at 567,115 S.Ct. 1624.

Morrison involved the civil remedy pro-vision of the Violence Against Women Act(‘‘VAWA’’), 42 U.S.C. § 13981. In enact-ing VAWA, Congress found that gender-motivated violence affects interstate com-merce ‘‘by deterring potential victims fromtraveling interstate, from engaging in em-ployment in interstate business, and fromtransacting with business, and in placesinvolved in interstate commerce; TTT bydiminishing national productivity, increas-ing medical and other costs, and decreas-ing the supply of and the demand forinterstate products.’’ Morrison, 529 U.S.at 615, 120 S.Ct. 1740 (quoting H.R. Conf.Rep. No. 103–711, at 385 (1994), as re-printed in 1994 U.S.C.C.A.N. 1801, 1853).The government argued, consistent withthe Congressional findings, that gender-motivated violence substantially effects in-terstate commerce, but the Supreme Courtrejected this argument, explaining that thegovernment’s reasoning ‘‘seeks to followthe but-for causal chain from the initialoccurrence of violent crime TTT to every

attenuated effect upon interstate com-merce.’’ Morrison, 529 U.S. at 615, 120S.Ct. 1740.

In the case at bar, we agree with theDistrict Court that ‘‘the connection be-tween the regulated activity and interstatecommerce under the Act is far more directthan that in Morrison [and Lopez ].’’ Be-retta, 401 F.Supp.2d at 287. When enact-ing the PLCAA, Congress explicitly foundthat the third-party suits that the Act barsare a direct threat to the firearms indus-try, whose interstate character is not ques-tioned. Furthermore, the PLCAA onlyreaches suits that ‘‘have an explicit connec-tion with or effect on interstate com-merce.’’ Lopez, 514 U.S. at 562, 115 S.Ct.1624. The claim-preclusion provisions of§ 7902 apply to actions ‘‘brought TTT

against a manufacturer or seller of a quali-fied product’’ for relief from injuries ‘‘re-sulting from the criminal or unlawful mis-use of a qualified product,’’ 15 U.S.C.§ 7903(5)(A); where ‘‘qualified productmeans a firearm TTT or a component partof a firearm or ammunition, that has beenshipped or transported in interstate orforeign commerce,’’ Id. at § 7903(4) (em-phasis added). Accordingly, unlike theGun–Free School Zones Act and ViolenceAgainst Women Act, the PLCAA raises noconcerns about Congressional intrusioninto ‘‘truly local’’ matters. See Morrison,529 U.S. at 618, 120 S.Ct. 1740; Lopez, 514U.S. at 567, 115 S.Ct. 1624. The Cityitself, in the Amended Complaint, stressedthe interstate character of the firearmsindustry. A foundation of the City’s claimis that New York City’s strict limitationson gun possession are undermined by theuncontrolled seepage into New York ofguns sold in other states.

We agree that the firearms industry isinterstate—indeed, international—in na-ture. Of course, we acknowledge that‘‘simply because Congress may conclude


that a particular activity substantially af-fects interstate commerce does not neces-sarily make it so.’’ Lopez, 514 U.S. at 557n. 2, 115 S.Ct. 1624 (internal quotationmarks omitted). We also should not anddo not express any opinion as to the accu-racy of the Congressional findings withrespect to the Act. Nevertheless, ‘‘[d]uerespect for the decisions of a coordinatebranch of Government demands that weinvalidate a congressional enactment onlyupon a plain showing that Congress hasexceeded its constitutional bounds.’’ Mor-rison, 529 U.S. at 607, 120 S.Ct. 1740(citing Lopez, 514 U.S. at 568, 115 S.Ct.1624). There has been no such showinghere. We find that Congress has not ex-ceeded its authority in this case, wherethere can be no question of the interstatecharacter of the industry in question andwhere Congress rationally perceived asubstantial effect on the industry of thelitigation that the Act seeks to curtail.

B. Principles of Separation of Powers

[3, 4] The doctrine of separation ofpowers is ‘‘one of the organizing principlesof our system of government.’’ Nixon v.Adm’r of Gen. Servs., 433 U.S. 425, 469, 97S.Ct. 2777, 53 L.Ed.2d 867 (1977). ‘‘It isTTT essential to the successful working ofthis system that the persons intrusted withpower in any one of [the] branches [ofgovernment] shall not be permitted to en-croach upon the powers confided to theothers.’’ Kilbourn v. Thompson, 103 U.S.168, 191, 26 L.Ed. 377 (1880). Article IIIof the Constitution ‘‘establishes a ‘judicialdepartment’ with the ‘province and dutyTTT to say what the law is’ in particularcases and controversies.’’ Plaut v. Spend-thrift Farm, Inc., 514 U.S. 211, 218, 115S.Ct. 1447, 131 L.Ed.2d 328 (1995) (quot-ing Marbury v. Madison, 1 Cranch 137,177, 2 L.Ed. 60 (1803)). Article III forbidslegislatures from ‘‘ ‘prescrib[ing] rules ofdecision to the Judicial Department of the

government in cases pending before it.’ ’’Plaut, 514 U.S. at 218, 115 S.Ct. 1447(quoting United States v. Klein, 13 Wall.128, 80 U.S. 128, 147, 20 L.Ed. 519 (1871));see also Town of Deerfield v. FCC, 992F.2d 420, 428 (2d Cir.1993) (explaining thatCongress may not ‘‘ ‘prescribe a rule forthe decision of a cause in a particularway’ ’’ (quoting Klein, 80 U.S. at 146)).However, this ‘‘prohibition does not takehold when Congress ‘amend[s] applicablelaw.’ ’’ Plaut, 514 U.S. at 218, 115 S.Ct.1447 (quoting Robertson v. Seattle Audu-bon Soc., 503 U.S. 429, 441, 112 S.Ct. 1407,118 L.Ed.2d 73 (1992)).

Here, the City claims that the Act’smandate of dismissal of pending actionsagainst firearms manufacturers violatesKlein by legislatively directing the out-come of specific cases without changingthe applicable law. The government, how-ever, argues that Klein does not prohibitCongress from enacting statutes that setforth new rules of law applicable to pend-ing cases, provided the new rule of law isalso made applicable prospectively to casescommenced after enactment. We agreewith the government that the Act permis-sibly sets forth a new rule of law that isapplicable both to pending actions and tofuture actions.

The PLCAA bars qualified civil liabilityactions, as defined in the statute. Thedefinition of qualified civil liability actionpermissibly sets forth a new legal standardto be applied to all actions. See Miller v.French, 530 U.S. 327, 348–49, 120 S.Ct.2246, 147 L.Ed.2d 326 (2000) (holding thatthe section of Prison Litigation ReformAct providing that a motion to terminateoperates as an automatic stay of prospec-tive relief did not violate separation ofpowers because the automatic stay provi-sion ‘‘simply imposes the consequences ofthe court’s application of the new legalstandard’’ and does not simply direct deci-


sion in a pending case); Robertson, 503U.S. at 438–39, 112 S.Ct. 1407 (holdingthat an amendment to governing law al-lowing timber harvesting in old growthforest under certain conditions and provid-ing that compliance with those conditionswould satisfy the statutory requirementsat issue in two existing cases ‘‘compelledchanges in law, not findings or resultsunder old law’’). Because the PLCAAdoes not merely direct the outcome ofcases, but changes the applicable law, itdoes not violate the doctrine of separationof powers.

C. Tenth Amendment and Fundamen-tal Principles of Federalism

[5] The Tenth Amendment to the Unit-ed States Constitution provides that ‘‘[t]hepowers not delegated to the United Statesby the Constitution, nor prohibited by it tothe States, are reserved to the States re-spectively, or to the people.’’ U.S. Const.amend. X. The City claims that thePLCAA impermissibly dictates to thestates which branch of their governmentmay authoritatively articulate state law—to wit, that the Act prohibits courts fromgiving effect to the states’ exercise of theirlawmaking power through the judicialbranch. According to the City, the Actrecognizes the authority of states’ legisla-tures to create a predicate exception toqualified civil liability actions by enacting astatute expressly applicable to the sale offirearms, whereas if a state court inter-prets a general statute as applicable to thesale of firearms, such an interpretationwould not create a predicate exception un-der the Act.

According to the City, the Act ‘‘imper-missibly oversteps [ ] fundamental limitswhen it determines which branch of stategovernment will be recognized by theFederal Government as the authoritativeexpositor of any state’s pertinent laws.’’

This argument is apparently in responseto the interpretation of the Act advancedby the Firearms Suppliers at oral argu-ment before the District Court. See Be-retta, 401 F.Supp.2d at 264. The Fire-arms Suppliers argued that a predicatestatute must explicitly mention firearmsand that a general statute could not serveas a predicate statute even if a state’shighest court were to construe that stat-ute as applicable to firearms. Id. We dis-agree with this argument and, as set forthin more detail below, do not construe thePLCAA as foreclosing the possibility thatpredicate statutes can exist by virtue ofinterpretations by state courts. We agreewith the District Court in its rejection ofthe Firearms Suppliers’ argument that astatute must expressly mention firearmsin order to qualify as a predicate statute.The District Court held that the FirearmsSuppliers’ argument ‘‘misconstrues the re-lationship of courts and legislatures inNew York. The law is not only the lan-guage that the legislature adopts, butwhat the courts construe to be its meaningin individual cases.’’ Id. at 266 (citingN.Y. Const. art. 6, § 1 (unified court sys-tem); N.Y. Const. art. 6, § 2 (jurisdictionof Court of Appeals); N.Y. C.P.L.R. § 103(form of civil judicial proceedings)).

In any event, the critical inquiry withrespect to the Tenth Amendment is wheth-er the PLCAA commandeers the states.See Connecticut v. Physicians HealthServs. of Conn., Inc., 287 F.3d 110, 122 (2dCir.2002). As the City concedes, thePLCAA does not. We have explained that

[f]ederal statutes validly enacted underone of Congress’s enumerated powers—here, the Commerce Clause—cannot vio-late the Tenth Amendment unless theycommandeer the states’ executive offi-cials, See Printz v. United States, 521U.S. 898, 933, 117 S.Ct. 2365, 138L.Ed.2d 914 (1997), or legislative pro-cesses, See New York v. United States,


505 U.S. 144, 161–66, 112 S.Ct. 2408, 120L.Ed.2d 120 (1992); see also CellularPhone Taskforce v. Fed. Communica-tions Comm’n, 205 F.3d 82, 96 (2d Cir.2000) (holding that a federal telecommu-nications law preempting states’ abilityto regulate the health and safety issueswith respect to certain personal wirelessservice facilities does not violate theTenth Amendment because the ‘‘statutedoes not commandeer local authorities toadminister a federal program’’); City ofNew York v. United States, 179 F.3d 29,35 (2d Cir.1999) (holding [in relevantpart] that the Tenth Amendment is a‘‘shield against the federal government’susing state and local governments toenact and administer federal pro-gramsTTTT’’); United States v. Sage, 92F.3d 101, 107 (2d Cir.1996) (concludingthat the Child Support Recovery Actdoes not violate the Tenth Amendmentbecause it does not ‘‘compel[ ] a State toenact and enforce a federal family pro-gram’’); accord United States v. Bostic,168 F.3d 718, 724 (4th Cir.1999) (holdingthat a federal gun statute does not vio-late the Tenth Amendment because itwas validly passed under the CommerceClause and imposes no ‘‘affirmative obli-gation’’ on the states).

Id. at 122. The PLCAA ‘‘does not com-mandeer any branch of state governmentbecause it imposes no affirmative duty ofany kind on any of them.’’ See id. ThePLCAA therefore does not violate theTenth Amendment. See id.

D. First Amendment Right of Accessto the Courts

[6, 7] The First Amendment provides,in relevant part, that ‘‘Congress shall makeno law TTT abridging TTT the right of thepeople TTT to petition the Government fora redress of grievances.’’ U.S. Const.amend. I. The right to petition, which hasbeen recognized as ‘‘one of ‘the most pre-

cious of the liberties safeguarded by theBill of Rights,’ ’’ BE & K Const. Co. v.NLRB, 536 U.S. 516, 524, 122 S.Ct. 2390,153 L.Ed.2d 499 (2002) (quoting MineWorkers v. Ill. Bar Ass’n, 389 U.S. 217,222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967)),‘‘extends to all departments of the Govern-ment,’’ including the courts, Cal. MotorTransp. Co. v. Trucking Unlimited, 404U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642(1972) (citing Johnson v. Avery, 393 U.S.483, 485, 89 S.Ct. 747, 21 L.Ed.2d 718(1969)); see also Gagliardi v. Village ofPawling, 18 F.3d 188, 194 (2d Cir.1994)(‘‘The rights to complain to public officialsand to seek administrative and judicial re-lief are protected by the First Amend-ment.’’).

[8, 9] By its terms, the Act bars plain-tiffs from courts for the adjudication ofqualified civil liability actions, allowing ac-cess for only those actions that fall withinthe Act’s exceptions. We conclude thatthese restrictions do not violate plaintiffs’right of access to the courts. ‘‘The consti-tutional right of access [to the courts] isviolated where government officials ob-struct legitimate efforts to seek judicialredress.’’ Whalen v. County of Fulton,126 F.3d 400, 406–07 (2d Cir.1997); cf.Barrett v. United States, 798 F.2d 565, 575(2d Cir.1986) (‘‘Unconstitutional depriva-tion of a cause of action occurs when gov-ernment officials thwart vindication of aclaim by violating basic principles that en-able civil claimants to assert their rightseffectively.’’). The right to petition existsin the presence of an underlying cause ofaction and is not violated by a statute thatprovides a complete defense to a cause ofaction or curtails a category of causes ofaction. See Christopher v. Harbury, 536U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d413 (2002) (‘‘[O]ur cases rest on the recog-nition that the right [of access to thecourts] is ancillary to the underlying claim,


without which a plaintiff cannot have suf-fered injury by being shut out of court.’’);accord Garcia v. Wyeth–Ayerst Lab., 385F.3d 961, 968 (6th Cir.2004) (‘‘A cognizableclaim can be made out only by showingthat the defendants’ actions foreclosed [apotential litigant] from filing suit in statecourt or rendered ineffective any statecourt remedy [the litigant] previously mayhave had.’’ (internal quotation marks omit-ted)).

The PLCAA immunizes a specific typeof defendant from a specific type of suit.It does not impede, let alone entirely fore-close, general use of the courts by would-be plaintiffs such as the City. Cf. Tennes-see v. Lane, 541 U.S. 509, 527, 124 S.Ct.1978, 158 L.Ed.2d 820 (2004) (upholding astatutory provision that sought to providerelief to individuals who ‘‘were being ex-cluded from courthouses and court pro-ceedings by reason of their disabilities’’);Harbury, 536 U.S. at 413, 122 S.Ct. 2179(noting that right-of-access concerns aretriggered when ‘‘official action TTT den[ies]an opportunity to litigate [to] a class ofpotential plaintiffs’’ and citing illustrativecases); NAACP v. Button, 371 U.S. 415,83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (strikingdown a state statute that had the effect ofpreventing ‘‘Negro litigants’’ from obtain-ing counsel); Hammond v. United States,786 F.2d 8, 13 (1st Cir.1986) (noting thatCongressional ‘‘alter[ation] TTT [of] priorrights and remedies’’ does not provokeright-of-access concerns because ‘‘[t]here isno fundamental right to particular state-law tort claims’’). For these reasons, thePLCAA cannot be said to deprive the Cityof its First Amendment right of access tothe courts.

IV. Does the PLCAA Require Dismissalof the City’s Action?

A. Predicate Exception to QualifiedCivil Liability Actions

The Firearms Suppliers maintain thatthe PLCAA requires immediate dismissalof this suit, which is a qualified civil liabili-ty action under the statute. The PLCAAdefines ‘‘qualified civil liability action’’ as

a civil action or proceeding or an admin-istrative proceeding brought by any per-son against a manufacturer or seller of aqualified product [i.e. a firearm that hasbeen shipped or transported in inter-state or foreign commerce],[ 3] or a tradeassociation, for damages, punitive dam-ages, injunctive or declaratory relief,abatement, restitution, fines, or penal-ties, or other relief, resulting from thecriminal or unlawful misuse of a quali-fied product by the person or a thirdparty.

15 U.S.C. § 7903(5)(A).

The PLCAA bars the commencement orthe prosecution of qualified civil liabilityactions by providing as follows:

(a) In general

A qualified civil liability action may notbe brought in any Federal or Statecourt.

(b) Dismissal of pending actions

A qualified civil liability action that ispending on October 26, 2005, shall beimmediately dismissed by the court inwhich the action was brought or is cur-rently pending.

3. The Act defines a ‘‘Qualified product’’ asa firearm (as defined in subparagraph (A)or (B) of section 921(a)(3) of Title 18), in-cluding any antique firearm (as defined insection 921(a)(16) of such title), or ammuni-tion (as defined in section 921(a)(17)(A) of

such title), or a component part of a fire-arm or ammunition, that has been shippedor transported in interstate or foreign com-merce.

15 U.S.C. § 7903(4).


15 U.S.C. § 7902. The Act also sets forthcertain exceptions to the definition of qual-ified civil liability action, allowing suits toproceed that meet any of the followingcriteria:

(iii) an action in which a manufactureror seller of a qualified product [i.e., afirearm that has been shipped or trans-ported through interstate or foreigncommerce] knowingly violated a State orFederal statute applicable to the sale ormarketing of the product, and the viola-tion was a proximate cause of the harmfor which relief is sought, including—

(I) any case in which the manufactur-er or seller knowingly made any falseentry in, or failed to make appropriateentry in, any record required to bekept under Federal or State law withrespect to the qualified product, oraided, abetted, or conspired with anyperson in making any false or ficti-tious oral or written statement withrespect to any fact material to thelawfulness of the sale or other disposi-tion of a qualified product; or

(II) any case in which the manufac-turer or seller aided, abetted, or con-spired with any other person to sell orotherwise dispose of a qualified prod-uct, knowing, or having reasonablecause to believe, that the actual buyerof the qualified product was prohibit-ed from possessing or receiving a fire-arm or ammunition under subsection(g) or (n) of section 922 of Title 18;

15 U.S.C. § 7903(5)(A)(iii) (emphasis add-ed).

The City has predicated its claims inthis case on the Firearms Suppliers’ al-leged violation of New York Penal Law§ 240.45, Criminal Nuisance in the SecondDegree, which provides:

A person is guilty of criminal nuisance inthe second degree when:

1. By conduct either unlawful in it-self or unreasonable under all the cir-cumstances, he knowingly or reckless-ly creates or maintains a conditionwhich endangers the safety or healthof a considerable number of persons;or

2. He knowingly conducts or main-tains any premises, place or resortwhere persons gather for purposes ofengaging in unlawful conduct.

The City claims that its suit falls withinthe exception set forth in section7903(5)(A)(iii) because New York PenalLaw § 240.45 is a statute ‘‘applicable tothe sale or marketing of [firearms].’’ TheFirearms Suppliers disagree, arguing thatthe predicate exception was intended toinclude statutes that specifically and ex-pressly regulate the firearms industry.The District Court agreed with the City,finding that, ‘‘[b]y its plain meaning, NewYork [Penal Law § ] 240.45 satisfies thelanguage of the predicate exception requir-ing a ‘statute applicable to the sale ormarketing of [a firearm].’ ’’ Beretta, 401F.Supp.2d at 261. It is not disputed thatNew York Penal Law § 240.45 is a statuteof general applicability that has never beenapplied to firearms suppliers for conductlike that complained of by the City.

B. Is New York Penal Law § 240.45‘‘Applicable’’ to the Sale of Fire-arms?

[10] Central to the issue under exami-nation is what Congress meant by thephrase ‘‘applicable to the sale or marketingof [firearms].’’ The core of the question iswhat Congress meant by the term ‘‘appli-cable.’’

We conclude, for the reasons set forth insubsection ‘‘1’’ below, that the meaning ofthe term ‘‘applicable’’ must be determinedin the context of the statute. We findnothing in the statute that requires any


express language regarding firearms to beincluded in a statute in order for thatstatute to fall within the predicate excep-tion. We decline to foreclose the possibili-ty that, under certain circumstances, statecourts may apply a statute of general ap-plicability to the type of conduct that theCity complains of, in which case such astatute might qualify as a predicate stat-ute. Accordingly, while the mere absencein New York Penal Law § 240.45 of anyexpress reference to firearms does not, inand of itself, preclude that statute’s eligi-bility to serve as a predicate statute underthe PLCAA, New York Penal Law§ 240.45 is a statute of general applicabili-ty that does not encompass the conduct offirearms manufacturers of which the Citycomplains. It therefore does not fall with-in the predicate exception to the claimrestricting provisions of the PLCAA.

1. ‘‘Applicable’’ In Context

The City relies on the dictionary defini-tion of ‘‘applicable,’’ which is, simply, ‘‘ca-pable of being applied.’’ On the otherhand, the Firearms Suppliers contend thatthe phrase ‘‘statute applicable to the saleor marketing of [a firearm]’’ in the contextof the language in the entire statute limitsthe predicate exception to statutes specifi-cally and expressly regulating the mannerin which a firearm is sold or marketed—statutes specifying when, where, how, andto whom a firearm may be sold or market-ed. We agree that the examples of stateand federal statutory violations in thepredicate exception itself refer to state andfederal laws that specifically and expresslygovern firearms. See 15 U.S.C.

§ 7903(5)(A)(iii)(I)-(II). We also agreewith the District Court’s rejection of theFirearms Suppliers’ argument that thepredicate exception is necessarily limitedto statutes that expressly regulate the fire-arms industry. However, for the reasonsset forth below, we disagree with the Dis-trict Court’s adoption of the out-of-context‘‘plain meaning’’ of the term ‘‘applicable’’and its conclusion that the dictionary defi-nition of the term ‘‘applicable’’ accuratelyreflects the intent of Congress.

The meaning of the term ‘‘applicable’’must be determined here by reading thatterm in the context of the surroundinglanguage and of the statute as a whole.See Robinson v. Shell Oil Co., 519 U.S.337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808(1997) (‘‘The plainness or ambiguity ofstatutory language is determined by refer-ence to the language itself, the specificcontext in which that language is used, andthe broader context of the statute as awhole.’’); see also Bailey v. United States,516 U.S. 137, 145, 116 S.Ct. 501, 133L.Ed.2d 472 (1995) (‘‘We consider not onlythe bare meaning of the word but also itsplacement and purpose in the statutoryscheme.’’); King v. St. Vincent’s Hosp.,502 U.S. 215, 221, 112 S.Ct. 570, 116L.Ed.2d 578 (1991) (holding that ‘‘a statuteis to be read as a whole, since the meaningof statutory language, plain or not, de-pends on context’’ (citation omitted)).Adhering to this principle, we have heldthat ‘‘fundamental to any task of interpre-tation is the principle that text must yieldto context.’’ Time Warner Cable, Inc. v.DIRECTV, Inc., 497 F.3d 144, 157 (2dCir.2007).4

4. Our dissenting colleague contends that ‘‘theconstruction of the statute the majority selectsleads to the sort of practical problems andabsurd results we usually try to avoid,’’ Dis-sent at 404. Respectfully, we disagree. Wedo not hold today that New York Penal Law§ 240.45 may in the future be found applica-

ble to the sale or marketing of firearms. Wemerely leave open the possibility that at sometime in the future the New York courts maydecide that another statute of general applica-bility encompasses the type of conduct thatthe City complains of. Our approach doesnothing more than recognize that the law of


Viewed in this light, the term ‘‘applica-ble’’ must be examined in context. ThePLCAA provides that predicate statutesare those that are ‘‘applicable to the saleor marketing of [firearms].’’ 15 U.S.C.§ 7903(5)(A)(iii). The universe of predi-cate statutes is further defined as ‘‘includ-ing’’ the examples set forth in subsections(I) and (II). As stated, we agree with theFirearms Suppliers that these examplesrefer to statutes that specifically regulatethe firearms industry. Yet, as also stated,we do not agree that the PLCAA requiresthat a predicate statute expressly refer tothe firearms industry. Thus the contoursof the universe of predicate statutes—i.e.,those statutes that are ‘‘applicable’’ to saleor marketing of firearms—are undefinedand we can only conclude that the term‘‘applicable’’ requires a contextual defini-tion.

Moreover, because both the City and theFirearms Suppliers ‘‘rely on a reasonablemeaning’’ of the term ‘‘applicable,’’ wemust look ‘‘to the canons of statutory in-terpretation to help resolve the ambigui-ty.’’ United States v. Dauray, 215 F.3d257, 262 (2d Cir.2000); see also Daniel v.Bd. of Emergency Med., 428 F.3d 408, 423(2d Cir.2005) (explaining that where ambi-guity is found in the meaning of a statute,we resort ‘‘first to canons of statutoryconstruction and TTT [then] to legislativehistory’’).

2. Canons of Statutory Construction

We have previously observed that ‘‘[t]hemeaning of one term may be determinedby reference to the terms it is associatedwith, and [that] where specific words fol-low a general word, the specific wordsrestrict application of the general term tothings that are similar to those enumerat-

ed.’’ Gen. Elec. Co. v. Occupational Safetyand Health Review Comm’n, 583 F.2d 61,65 (2d Cir.1978). We have also deter-mined that ‘‘[w]here TTT examination of [a]statute as a whole demonstrates that aparty’s interpretation would lead to ‘ab-surd or futile results TTT plainly at vari-ance with the policy of the legislation as awhole,’ that interpretation should be re-jected.’’ Yerdon v. Henry, 91 F.3d 370,376 (2d Cir.1996) (quoting EEOC v. Com-mercial Office Prods. Co., 486 U.S. 107,120, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988)(ellipsis in original)). Defendants contendthat their view of the relevant exception‘‘is bolstered by [both of these] settledprinciples of statutory interpretation.’’

a. Other associated terms

As we noted in United States v. Dauray,215 F.3d 257 (2d Cir.2000), ‘‘the meaningof doubtful terms or phrases may be deter-mined by reference to their relationshipwith other associated words or phrases(noscitur a sociis ).’’ Id. at 262. In addi-tion, ‘‘where general words’’ are accompa-nied by ‘‘a specific enumeration of personsor things, the general words should belimited to persons or things similar tothose specifically enumerated (ejusdemgeneris ).’’ Id. (internal quotation marksomitted).

Section 7903(5)(A)(iii) states that the ex-ception set out therein ‘‘includ[es]’’:

(I) any case in which the manufactureror seller knowingly made any falseentry in, or failed to make appropri-ate entry in, any record required tobe kept under Federal or State lawwith respect to the [firearm], or aid-ed, abetted, or conspired with anyperson in making any false or ficti-

New York state ‘‘is not only the language thelegislature adopts, but what the courts con-strue to be its meaning in individual cases,’’

Beretta, 401 F.Supp.2d at 266; see also Sec-tion III.C, supra.


tious oral or written statement withrespect to any fact material to thelawfulness of the sale or other dispo-sition of a [firearm]; or

(II) any case in which the manufactureror seller aided, abetted, or con-spired with any other person to sellor otherwise dispose of a [firearm],knowing, or having reasonablecause to believe, that the actualbuyer of the [firearm] was prohibit-ed from possessing or receiving afirearm or ammunition under sub-section (g) or (n) of section 922 ofTitle 18;

The general language contained in sec-tion 7903(5)(A)(iii) (providing that predi-cate statutes are those ‘‘applicable to’’ thesale or marketing of firearms) is followedby the more specific language referring tostatutes imposing record-keeping require-ments on the firearms industry, 15 U.S.C.§ 7903(5)(A)(iii)(I), and statutes prohibit-ing firearms suppliers from conspiringwith or aiding and abetting others in sell-ing firearms directly to prohibited pur-chasers, 15 U.S.C. § 7903(5)(A)(iii)(II).Statutes applicable to the sale and market-ing of firearms are said to include statutesregulating record-keeping and those pro-hibiting participation in direct illegal sales.Thus, the general term—‘‘applicable to’’—is to be ‘‘construed to embrace only objectssimilar to those enumerated by’’ sections7903(5)(A)(iii)(I) and (II). See Keffeler,537 U.S. at 384, 123 S.Ct. 1017. We ac-cordingly conclude that construing theterm ‘‘applicable to’’ to mean statutes thatclearly can be said to regulate the firearmsindustry more accurately reflects the in-tent of Congress. Cf. Jarecki v. G.D.Searle & Co., 367 U.S. 303, 307, 81 S.Ct.1579, 6 L.Ed.2d 859 (1961) (‘‘The maximnoscitur a sociis TTT is often wisely ap-plied where a word is capable of manymeanings in order to avoid the giving of

unintended breadth to the Acts of Con-gress’’).

b. Avoiding Absurdity

The declared purposes of the statuteinclude:

To prohibit causes of action againstmanufacturers, distributors, dealers, andimporters of firearms or ammunitionproducts, and their trade associations,for the harm solely caused by the crimi-nal or unlawful misuse of firearms prod-ucts or ammunition products by otherswhen the product functioned as designedand intended.

15 U.S.C. § 7901(b)(1). In drafting thePLCAA, Congress found:

Businesses in the United States that areengaged in interstate and foreign com-merce through the lawful design, manu-facture, marketing, distribution, impor-tation, or sale to the public of firearmsor ammunition products that have beenshipped or transported in interstate orforeign commerce are not, and shouldnot, be liable for the harm caused bythose who criminally or unlawfully mis-use firearm products or ammunitionproducts that function as designed andintended.

15 U.S.C. § 7901(a)(5). We think Con-gress clearly intended to protect from vi-carious liability members of the firearmsindustry who engage in the ‘‘lawful design,manufacture, marketing, 30 distribution,importation, or sale’’ of firearms. Preced-ing subsection (a)(5), Congress stated thatit had found that ‘‘[t]he manufacture, im-portation, possession, sale, and use of fire-arms and ammunition in the United Statesare heavily regulated by Federal, State,and local laws. Such Federal laws includethe Gun Control Act of 1968, the NationalFirearms Act, and the Arms Id. ControlAct.’’ 15 U.S.C. § 7901(a)(4). We thinkthe juxtaposition of these two subsections


demonstrates that Congress meant that‘‘lawful design, manufacture, marketing,distribution, importation, or sale’’ of fire-arms means such activities having beendone in compliance with statutes like thosedescribed in subsection (a)(4).

This conclusion is supported by the ‘‘in-terpretive principle that statutory excep-tions are to be construed ‘narrowly in or-der to preserve the primary operation ofthe [general rule].’ ’’ Nussle v. Willette,224 F.3d 95, 99 (2d Cir.2000) (quotingCommissioner v. Clark, 489 U.S. 726, 739,109 S.Ct. 1455, 103 L.Ed.2d 753 (1989)),overruled on other grounds by Porter v.Nussle, 534 U.S. 516, 122 S.Ct. 983, 152L.Ed.2d 12 (2002). In the ‘‘broader con-text of the statute as a whole,’’ Robinson,519 U.S. at 341, 117 S.Ct. 843, resort to thedictionary definition of ‘‘applicable’’—i.e.capable of being applied—leads to a fartoo-broad reading of the predicate excep-tion. Such a result would allow the predi-cate exception to swallow the statute,which was intended to shield the firearmsindustry from vicarious liability for harmcaused by firearms that were lawfully dis-tributed into primary markets.

3. Legislative History

We are mindful that ‘‘[c]ontemporaneousremarks of a sponsor of legislation are byno means controlling in the analysis oflegislative history.’’ Berger v. Heckler, 771F.2d 1556, 1574 (2d Cir.1985). Neverthe-less, we find that the legislative history ofthe statute supports the Firearms Suppli-ers’ proffered interpretation of the term‘‘applicable.’’ United States Senator Lar-ry E. Craig, a sponsor of the PLCAA,named the case at bar as an ‘‘example[ ]TTT of exactly the type of TTT lawsuit[ ]this bill will eliminate.’’ See 151 Cong.Rec. S9374–01, 9394 (2005) (statement ofSen. Craig). United States Representa-tive Clifford B. Stearns, the sponsor ofH.R. 800, the House version of the

PLCAA, inserted similar comments intothe PLCAA’s legislative history so that the‘‘Congressional Record [would] clearly re-flect some specific examples of the type ofTTT lawsuit[ ]’’ the PLCAA would preclude.151 Cong. Rec. E2162–03 (2005) (state-ment of Rep. Stearns).

Indeed, the Central District of Califor-nia found in a strikingly similar case, Iletov. Glock, 421 F.Supp.2d 1274 (C.D.Cal.2006), that comments by the bill’s propo-nents consistently referred to firearms-specific statutes when discussing the scopeof the predicate exception. For example,Senator Craig stated:

Let me again say, as I said, if in anyway they violate State or Federal law oralter or fail to keep records that areappropriate as it relates to their invento-ries, they are in violation of law. Thisbill does not shield them, as some wouldargue. Quite the contrary. If theyhave violated existing law, they violatedthe law, and I am referring to the Fed-eral firearms laws that govern a licensedfirearm dealer and that govern our man-ufacturers today.

Id. at 1292 (quoting 151 Cong. Rec.S9087–01 (statement of Sen. Craig)) (alter-ations omitted). United States SenatorJefferson B. Sessions stated: ‘‘This billallows lawsuits for violation of contract,for negligence, in not following the rulesand regulations and for violating any lawor regulation that is part of the complexrules that control sellers and manufactur-ers of firearms.’’ 151 Cong. Rec. S9374–01, S9378 (daily ed. July 29, 2005).

The Ileto court also noted the defeat ofattempts to expand the predicate exceptionto include laws of general applicability.For example, when United States SenatorCarl M. Levin sought to include cases inwhich a firearms supplier’s gross negli-gence or recklessness is a proximate cause


of injury or death, Ileto, 421 F.Supp.2d at1294 (citing 151 Cong. Rec. S9087–01(statement of Sen. Levin)), the bill’s propo-nents ‘‘attacked this amendment, primarilybecause they believed that it would effec-tively ‘gut’ the Act.’’ Ileto, 421 F.Supp.2dat 1294 (citing, e.g., 151 Cong. Rec. S9374–01 (statement of U.S. Sen. John R.Thune)). Recognizing the limited weightowed to such statements, we think that thestatements nevertheless support the viewthat the predicate exception was meant toapply only to statutes that actually regu-late the firearms industry, in light of thestatements’ consistency amongst each oth-er and with the general language of thestatute itself. Cf. Murphy v. Empire ofAm., FSA, 746 F.2d 931, 935 (2d Cir.1984)(explaining that ‘‘isolated remarks, particu-larly when unclear or conflicting, are enti-tled to little or no weight’’). In sum, wehold that the exception created by 15U.S.C. § 7903(5)(A)(iii): (1) does not en-compass New York Penal Law § 240.45;(2) does encompass statutes (a) that ex-pressly regulate firearms, or (b) thatcourts have applied to the sale and mar-keting of firearms; and (3) does encom-pass statutes that do not expressly regu-late firearms but that clearly can be saidto implicate the purchase and sale of fire-arms.5

CONCLUSION

For the foregoing reasons, the judgmentof the District Court denying the FirearmsSuppliers’ motion to dismiss based on theclaim restricting provisions of the PLCAAis REVERSED. The judgment of the DistrictCourt with respect to the constitutionalityof the PLCAA is AFFIRMED. The case isremanded to the District Court with in-

structions to enter judgment dismissingthe case as barred by the PLCAA.

KATZMANN, Circuit Judge, dissenting:

Unlike the majority, I believe this casemay be simply resolved by looking only atthe ordinary meaning of the words in thestatute. The majority’s approach is pro-blematic: first, it creates an ambiguity inthe statute that does not exist; second, inconfronting that supposed ambiguity, themajority breaks from our longstandingpractice of avoiding difficult constitutionalquestions when possible; and third, itadopts a construction of the statute thatleads to absurd results. Because we mayeasily avoid all of these problems by allow-ing the ordinary meaning of the statute tocontrol and certifying the question of theapplicability of New York’s statute to thesale and marketing of firearms to the NewYork Court of Appeals, I respectfully dis-sent.

To begin, the meaning of the statute isunambiguous. Although a statute’s plainmeaning is often elusive, the SupremeCourt has ‘‘stated time and again thatcourts must presume that a legislaturesays in a statute what it means and meansin a statute what it says there. When thewords of a statute are unambiguous, then,this first canon is also the last: judicialinquiry is complete.’’ Connecticut Nat’lBank v. Germain, 503 U.S. 249, 254–55,112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)(internal citations and quotation marksomitted); Lee v. Bankers Trust Co., 166F.3d 540, 544 (2d Cir.1999) (‘‘It is axiomat-ic that the plain meaning of a statutecontrols its interpretation TTT and thatjudicial review must end at the statute’sunambiguous terms. Legislative historyand other tools of interpretation may be

5. We confess ourselves puzzled as to how ourdissenting colleague can find this brief andstraightforward holding insufficient to pro-

vide ‘‘future courts TTT with[ ] guidance as tohow to discern when a predicate statute ap-plies.’’ Dissent at 406.


relied upon only if the terms of the statuteare ambiguous.’’). When, as in this case,‘‘a word is not defined by statute, we nor-mally construe it in accord with its ordi-nary or natural meaning.’’ Smith v. Unit-ed States, 508 U.S. 223, 228, 113 S.Ct.2050, 124 L.Ed.2d 138 (1993). As the dis-trict court correctly noted, 401 F.Supp.2dat 261, the ordinary meaning of the word‘‘applicable’’ is clear; any attempt to readthat word as meaning anything more than‘‘capable of being applied’’ is a strainedeffort to read an ambiguity that does notexist into the statute. See Riverkeeper,Inc. v. EPA, 475 F.3d 83, 110 (2d Cir.2007)(rejecting EPA’s attempt to ‘‘create ambi-guity when none otherwise exists by defin-ing statutory terms contrary to their plainmeaning’’). The majority’s attempt to lim-it the reach of the term ‘‘applicable’’ tostatutes (1) expressly regulating firearms,(2) that ‘‘clearly can be said to apply,’’ or(3) that ‘‘actually regulate’’ the sale andmarketing of firearms would work a signif-icant change in the meaning of the predi-cate exception, substituting its preferencesfor the words Congress actually selected.See In re Coltex Loop Central Three Part-ners, L.P., 138 F.3d 39, 43 (2d Cir.1998)(‘‘If Congress had intended to modifythose words with the addition of the words‘only,’ ‘solely,’ or even ‘primarily,’ it wouldhave done so. For the court to add suchmodifiers would work a significant and un-warranted change in the meaning and con-sequence of the statute.’’).

Because the meaning of the statutorylanguage is clear, we ought not go further.In this case, that approach is faithful toone of the most prudent and oft-followedrules of statutory construction—that weavoid reaching constitutional questionswhen a fair reading of the statutory lan-guage permits us to do so. See, e.g., Spec-tor Motor Serv., Inc. v. McLaughlin, 323U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101(1944) (‘‘If there is one doctrine more

deeply rooted than any other in the pro-cess of constitutional adjudication, it isthat we ought not to pass on questions ofconstitutionality TTT unless such adjudica-tion is unavoidable.’’). As a result, if possi-ble, courts must interpret statutes to avertconstitutional questions, rather than to em-brace them, as the majority does here.See Crowell v. Benson, 285 U.S. 22, 62, 52S.Ct. 285, 76 L.Ed. 598 (1932) (‘‘When thevalidity of an act of the Congress is drawnin question, and even if a serious doubt ofconstitutionality is raised, it is a cardinalprinciple that this Court will first ascertainwhether a construction of the statute isfairly possible by which the question maybe avoided.’’); Able v. United States, 88F.3d 1280, 1298 (2d Cir.1996) (‘‘[B]ecausethis is a challenge to the constitutionalityof the Act, we are required to construe it‘so as to avoid constitutional difficultieswhenever possible.’ ’’). The majority takespains to find the language of the statuteambiguous—that is, susceptible of morethan one reading—but, instead of optingfor the most natural meaning of the statu-tory text, the majority adopts a construc-tion requiring it to address head-on consti-tutional dilemmas that go to the heart ofprinciples of federalism, separation of pow-ers, and the First Amendment. Con-gress’s requirement that state and federalcourts immediately dismiss pending law-suits presents novel and complex issuesregarding the allocation of authority be-tween the federal government and thestates, and the courts and the legislature.Whether the majority is correct in its con-stitutional analysis is beside the point. Itschoice to confront such difficult questionsrisks setting potentially far-reaching prec-edents needlessly, ignoring our eminentlysensible practice of constitutional avoid-ance.

To justify its approach, the majoritycites legislative history. I have long been


an advocate of examining authoritative leg-islative history when a statute is ambigu-ous, see, e.g., Auburn Hous. Auth. v. Mar-tinez, 277 F.3d 138, 143–44 (2d Cir.2002),but here the statute is unambiguous. Inany event, when Congress legislates in‘‘traditionally sensitive areas,’’ if it intendsto alter the state-federal balance or theallocation of power between the branchesof government, Congress should stateclearly that intent in the text of the stat-ute, not merely through statements on thefloor by legislators. See United States v.Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30L.Ed.2d 488 (1971). In the matter athand, where the more natural reading ofthe statute allows us to avoid such difficultconstitutional questions, we need not pro-ceed beyond the plain meaning to compli-cated legislative history, especially when todo so would require us to confront thosehard issues.

The majority holds, without any specificexplanation, that New York’s § 240.45does not apply to the conduct the Citycites in its complaint. Despite its repeatedassertions that a statute need not express-ly regulate firearms to be ‘‘applicable’’ tofirearms,1 the majority comes to the con-clusion that § 240.45 is not a statute that‘‘clearly can be said to regulate the fire-arms industry’’ supra, at 402, or ‘‘actuallyregulate[s] the firearm industry.’’ Supra,at 404. In the wake of the majority’sunclear language and rationale surround-ing its holding, future courts are left with-out guidance as to how to discern when apredicate statute applies. Beyond thislack of clarity, in unnecessarily finding am-biguity in the statute, the construction of

the statute the majority selects leads tothe sort of practical problems and absurdresults we usually try to avoid. Clinton v.City of New York, 524 U.S. 417, 429, 118S.Ct. 2091, 141 L.Ed.2d 393 (1998); UnitedStates v. Dauray, 215 F.3d 257, 264 (2dCir.2000). The majority’s construction,particularly with respect to its statementthat the predicate exception covers stat-utes that ‘‘actually’’ regulate firearms,really boils down to an empirical question:has a state court yet applied a statute ofgeneral applicability to the sale and mar-keting of firearms? Under the majority’sapproach, the apparently insurmountableobstacle for the plaintiffs here is that theNew York courts have not yet addressedthe question—as such, the majority feelsfree to conclude that § 240.45 is not ‘‘appli-cable’’ to the sale and marketing of fire-arms. Unlike, say, a fruit, which is ediblelong before someone has eaten it, or gaso-line, which is flammable even before some-one has ignited it, the majority finds that astate law is not applicable until a statecourt actually applies it. See, e.g., Berhe v.Gonzales, 464 F.3d 74, 84 (1st Cir.2006)(‘‘It is clear we read ‘applicable’ to mean,not the law actually applied, but, consis-tent with the ordinary meaning of theword, the law ‘capable of being applied.’ ’’)(quoting Merriam–Webster’s CollegiateDictionary 56 (10th ed.2001) (emphasis inoriginal)).

Even more fundamentally, what the ma-jority’s approach ignores is that it treatsparties differently based on whether or notthey may invoke the jurisdiction of thefederal courts. Consider the problem of aplaintiff who brings a claim in state court

1. ‘‘We find nothing in the statute that requiresany express language regarding firearms to beincluded in a statute in order for that statuteto fall within the predicate exception.’’ Su-pra, at 400. ‘‘We also agree with the DistrictCourt’s rejection of the Firearms Suppliers’argument that the predicate exception is nec-

essarily limited to statutes that expressly regu-late the firearms industry.’’ Supra, at 400.‘‘Yet, as also stated, we do not agree that thePLCAA requires that a predicate statute ex-pressly refer to the firearms industry.’’ Su-pra, at 401.


under a state statute of general applicabili-ty which has not yet been applied to thesale and marketing of firearms. Underthe majority’s construction, plaintiffs whobring such cases against defendants whomay not remove to federal court have theopportunity to ask the state court to deter-mine whether the predicate exceptionmight apply. But plaintiffs who bring suchcases against defendants who may removewill be deprived of that opportunity be-cause the majority holds that federalcourts must dismiss those cases immedi-ately, as the state statutes invoked do notyet meet the majority’s test that they ‘‘ac-tually’’ regulate the sale and marketing offirearms. Not only does this approachtreat identically situated parties differentlywith no apparent rational basis, it invitesforum shopping, see Erie R.R. v. Tomp-kins, 304 U.S. 64, 74–77, 58 S.Ct. 817, 82L.Ed. 1188 (1938); Vitanza v. Upjohn Co.,214 F.3d 73, 78–79 (2d Cir.2000). Indeed,under the majority’s construction, federallaw may mean one thing in federal courts,and something else entirely in state courts,a result the Supreme Court found intoler-able nearly two hundred years ago in Mar-tin v. Hunter’s Lessee, 1 Wheat. 304, 14U.S. 304, 347–48, 4 L.Ed. 97 (1816).2

Plaintiffs similar to those in this case, whomay find themselves in federal court underdiversity jurisdiction, face an intractableproblem—their claims might fall under thepredicate exception if a state court says so,but if they ask a state court, the defen-dants will remove to a federal court, which

must dismiss the claim because the statecourt has not yet spoken. ‘‘That’s somecatch, that Catch–22.’’ Joseph Heller,Catch–22 at 52 (1961).

In sum, we need not confront theseproblems if we adhere to the plain mean-ing of the statute. Since the ordinarymeaning of the words of the statute isclear, I would then turn to whether theNew York criminal-nuisance statute, NewYork Penal Law § 240.45, is in fact ‘‘appli-cable to the sale and marketing of fire-arms.’’ Whether that state statute servesas a predicate statute is a matter of feder-al law for this Court to address. But thethreshold question of what conduct thestate statute encompasses is a question ofstate law. In keeping with our preferencethat states define the meaning of their ownlaws in the first instance, Allstate Ins. Co.v. Serio, 261 F.3d 143, 150 (2d Cir.2001)(citing Arizonans for Official English v.Arizona, 520 U.S. 43, 76, 117 S.Ct. 1055,137 L.Ed.2d 170 (1997)), and because theoutcome of this case turns on the answerto this important question of state law, Iwould certify the question of the scope ofNew York Penal Law § 240.45 to the high-est court of the State of New York, theNew York Court of Appeals. Even assum-ing arguendo, as the majority apparentlybelieves, that a state law does not applyuntil a state court applies it, then there isall the more reason for a federal court toavail itself of established procedures whichenable it to seek the views of the state’shighest courts as to the meaning of impor-

2. Another dilemma posed by the majority’sconstruction involves how a state courtshould act when placed in a situation where afederal court has already ruled on the appli-cability of a state statute to the sale andmarketing of firearms. For instance, supposea federal court has already held that a claimbrought under a state statute of general appli-cability does not fall within the predicate ex-ception because that state’s courts have notyet spoken to the issue. Later, a plaintiff

brings an identical claim under the identicalstate statute in state court, and the defendantinvokes the PLCAA as an affirmative defense.The state court, bound to follow the statute,must decide whether to dismiss the case orassert that its new interpretation of state lawprovides the plaintiff refuge under the predi-cate exception. It is precisely this kind ofdelicate problem of federalism that the major-ity’s approach invites.


tant questions of state law. After all,‘‘[a]ny of our determinations of state lawbased upon prediction, rather than author-itative construction by the State’s highestcourt, carries risk, especially if we turn aparty out of court on a theory later repudi-ated by the State.’’ Nicholson v. Scoppet-ta, 344 F.3d 154, 170 (2d Cir.2003). Incertifying, we would be recognizing thatwe should look to the New York Court ofAppeals to interpret state laws for whichno controlling precedent of that court ex-ists. On many occasions, we have greatlybenefitted from certifying significant state-law questions to the New York Court ofAppeals. See, e.g., O’Mara v. Town ofWappinger, 485 F.3d 693, 699 (2d Cir.2007); King v. Fox, 458 F.3d 39, 40 (2dCir.2006) (per curiam); Carney v. Philip-pone, 368 F.3d 164, 166 (2d Cir.2004) (percuriam). See generally Judith S. Kaye &Kenneth I. Weissman, Interactive JudicialFederalism: Certified Questions in NewYork, 69 Fordham L.Rev. 373 (2000). Ifthe New York Court of Appeals were todetermine that New York’s criminal-nui-sance statute is, in fact, ‘‘applicable to thesale and marketing of firearms,’’ and if theplaintiffs can prove that the defendants’violation of that statute was knowing, as isnow required under the PLCAA, see 15U.S.C. § 7903(5)(A)(iii), then the predicateexception would apply. Alternatively, theNew York Court of Appeals could deter-mine that the state statute is not applica-ble to the sale and marketing of firearms,in which case this Court would not have toaddress the thorny constitutional questionsthe majority elects to resolve now. Thematter before us is thus a textbook exam-ple of when certification is appropriate.See, e.g., Nicholson, 344 F.3d at 169–171;Serio, 261 F.3d at 150–53, 155; cf. Rail-road Comm’n of Texas v. Pullman Co.,312 U.S. 496, 500–01, 61 S.Ct. 643, 85L.Ed. 971 (1941).

For the reasons stated above, I respect-fully dissent.

,

COUNTY OF NASSAU, NEW YORK,County of Suffolk, New York, Federa-tion Employment and Guidance Ser-vices, Inc., Long Island Minority AidsCoalition, Inc., Thursday’s Child, Inc.,Traci Bowman, Miriam Spaier, Je-rome Knight, Donna Uysal, Plaintiffs–Appellants,

v.

Michael O. LEAVITT, in his OfficialCapacity as Secretary of Health andHuman Services of the United StatesDepartment of Health and HumanServices, Elizabeth M. Duke, in herOfficial Capacity as Administrator forthe Health Resources and Services Ad-ministration of the United States De-partment of Health and Human Ser-vices, United States Department ofHealth and Human Services, Defen-dants–Appellees.

Docket No. 07–0825–cv.

United States Court of Appeals,Second Circuit.

Argued Sept. 6, 2007.

Decided April 25, 2008.

Background: County and others broughtaction against the United States Depart-ment of Health and Human Services(DHHS), seeking continued federal fund-ing under the Ryan White ComprehensiveAIDS Resources Emergency Act. TheUnited States District Court for the East-ern District of New York, Joanna Seybert,J., 2007 WL 708321, denied plaintiffs’ mo-

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