In December 2021, a unanimous Nevada Supreme Court determined in Parsons v. Colt’s Manufacturing Company[1] that a Nevada statute granted gun manufacturers immunity from certain wrongful death or negligence claims asserted under state law, even if the plaintiffs plausibly allege the manufacturers knowingly sold firearms that violated state and federal machinegun laws. The case arose after a 2017 mass public shooting in Las Vegas where the gunman used AR-15-style semi-automatic rifles that he modified with bump stocks, enabling him to fire at a faster rate than is typical of such semi-automatic rifles.[2] Parents of one victim filed a lawsuit in Nevada state court alleging wrongful death, negligence per se, and negligent entrustment claims against various gun companies who manufactured and distributed the firearms used in the shooting.

The gun companies removed the case to federal court and filed a motion to dismiss for failure to state a claim, arguing that these claims were barred by the federal Protection of Lawful Commerce in Arms Act (PLCAA)[3] and Nevada Revised Statute 41.131.[4] Both of these laws were designed to grant gun manufacturers and distributors immunity for any harm to a thirdparty caused by the use (or misuse) of a properly functioning firearm, but they employ different language. The PLCAA contains a so-called “predicate exception,” which permits actions against gun companies who “knowingly violate[] a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”[5] The Nevada statute, on the other hand, provides—in relevant part—that no cause of action may be brought “against any manufacturer or distributor of any firearm or ammunition merely because the firearm or ammunition was capable of causing serious injury, damage or death, was discharged and proximately caused serious injury, damage or death.”[6]

The federal district court granted the gun companies’ motion to dismiss with respect to the negligent entrustment and negligence per se claims. But it denied the motion to dismiss as to the wrongful death claim based on the PLCAA’s “predicate exception,” finding that the plaintiffs plausibly alleged that the firearms sold by the companies and used in the shooting violated state and federal machinegun prohibitions. The plaintiffs theorized that the companies knowingly sold guns “designed to shoot automatically” because they knew that their semi-automatic guns could be easily modified with bump stocks, which—they argued—turn a firearm into an automatic machinegun.[7] The district court declined, however, to address whether the Nevada statute provided a broader scope of immunity than the PLCAA, and instead certified several related questions about Nevada law to the Nevada Supreme Court.[8]

The Nevada Supreme Court accepted, without independently deciding, the federal court’s determination that an AR-15 rifle may fit the federal or state definitions of a machinegun.[9] It also distilled the federal court’s three questions[10] down to a primary question of “whether the allegation of illegality allows the parents’ wrongful death and negligence per se claims to proceed, despite the immunity NRS 41.131 declares.”[11]

The Court began its analysis by invoking the “whole-text” canon of construction, and placing the disputed language in the context of the whole statute, which provides:

1.     No person has a cause of action against the manufacturer or distributor of any firearm or ammunition merely because the firearm or ammunition was capable of causing serious injury, damage or death, was discharged and proximately caused serious injury, damage or death. This subsection is declaratory and not in derogation of the common law.

2.     This section does not affect a cause of action based upon a defect in design or production. The capability of a firearm or ammunition to cause serious injury, damage or death when discharged does not make the product defective in design.[12]

The Court agreed that the plaintiffs’ legal theory—that the gun companies are illegally manufacturing and distributing machineguns—is “arguably premised on fault beyond a firearm’s inherent ability to cause harm.”[13] But the Court noted that, at the same time, the statute does not limit immunity to the manufacture and distribution of legal firearms.[14] Instead, the statute grants immunity from suits against the “manufacturer or distributor of any firearm or ammunition,” and “any” conventionally means “all” and “every.”[15] The Court generally does not read implied terms into statutes where the legislature omitted them.[16] The PLCAA and many analogous state laws may create immunity for “lawful sales” or carve out explicit exceptions to immunity based on the company’s unlawful conduct, but Nevada’s statute lacks such language. It is more like Indiana’s immunity statute, which the Indiana Supreme Court held limited gun companies’ liability for third-party harm even if the company violated the law.[17]

Since the Legislature did not reserve the statute’s protections for the sale of legal guns, the Court determined that the alleged illegality of the companies’ firearms “appears to be immaterial.”[18] Moreover, contrary to the plaintiffs’ assertion, this interpretation does not render the phrase “merely because” meaningless. Parties can still bring causes of action based on design or production defects, or where independent acts of negligence create an unreasonable risk of harm above and beyond that posed by the gun’s inherent dangerousness.[19]

The Court next addressed the plaintiffs’ contention that they had a common law cause of action against the manufacturers, and that the statute still permits such actions because the immunity it grants is “not in derogation of the common law.” The Court determined that the issue of liability under the common law was uncertain at the time the statute was enacted and remains uncertain today. When the statute was enacted, Nevada common law did not address whether a firearms manufacturer or distributor could be held liable in tort for the criminal misuse of a firearm by a third party.[20] Meanwhile, some nascent authorities outside of Nevada had held there is no common law basis for imposing this sort of duty on gun companies, but never addressed whether a weapon’s illegality could affect the analysis.[21] The Court reflected on other times it had faced similar interpretive challenges about common law liability where strong policy arguments existed on both sides.[22] It concluded here, as in those cases, that the decision of whether to impose private civil liability should be left to the legislature, not the judiciary.[23]

[1] 499 P.3d 602 (Nev. 2021).
[2]  The Nevada Supreme Court in this case describes a bump stock as “a tool that replaces the standard stock of an AR-15 rifle and uses the firearm’s recoil mechanism to enable continual (i.e., automatic) fire with a single trigger pull.” Id. at 3. As a point of technical clarification, a bump stock does not change the mechanical operation of a semi-automatic firearm so that rounds fire continuously for as long as the trigger is depressed. Rather, the device enables the operator of a semi-automatic firearm to leverage the gun’s recoil such that the operator can fluidly reset and pull the trigger faster than most shooters otherwise could with a semi-automatic platform. Whether this in fact turns the firearm into a “machinegun” under federal law is the subject of much debate and ongoing litigation.
[3] 15 U.S.C. §§ 7901­­–03 (2019).
[4] Parsons, 499 P.3d at 604.
[5] 15 U.S.C. § 7901(b)(1) (2019).
[6]  Nev. Rev. Stat. 41.131(1).
[7]  See 26 U.S.C. § 5845(b) (2019) (defining a machinegun as “any weapon which shoots, or is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger”); Nev. Rev. Stat. 202.253(6)(2021) (defining a machinegun gun as “any weapon which shoots, is designed to shoot or can be readily restored to shoot more than one shot, without manual reloading, by a single function of the trigger”).
[8] See Parsons, 499 P.3d at 605­–06.
[9] Id. at 606.
[10] The federal court later reconsidered its dismissal of the negligence per se claim and certified an additional question about that doctrine under Nevada law. Id. at 605.
[11] Id. at 604.
[12] Nev. Rev. Stat. 41.131.
[13] Parsons, 499 P.3d at 607.
[14] Id.
[15] Id.
[16] Id. at 608.
[17] Id. (comparing the Nevada statute with Ind. Code § 34-12-3-3(2) (2021)).
[18] Id.
[19] Id. at 608–9 (noting that 41.131(2) expressly limits the immunity declared by the statute).
[20] Id. at 610.
[21] Id. (referring to Riordan v. Int’l Armament Corp., 477 N.E.2d 1293 (Ill. App. 1985) and Cassisi v. Maytag Co., 396 So 2d 1140 (Fla. Dist. Ct. App. 1981)).
[22] Id. at 610–11 (referring to Hamm v. Carson City Nugget, Inc., 450 P.2d 358 (Nev. 1969) and its progeny, which dealtgenerally with third-party civil liability for deaths resulting from allegedly criminal violations of state liquor laws).
[23] Id. at 611. The Court declined to address the federal court’s third question about the state’s negligence per se law, finding that “while that point may warrant clarification in a future case, the immunity provided in .

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