During his first State of the Union address, President Joe Biden revived an attack against an old foe: a Bush-era law that protects the gun industry, shielding gun makers and sellers from most lawsuits. 

“Look, repeal the liability shield that makes gun manufacturers the only industry in America that can’t be sued,” Biden said to the joint session of Congress on March 1, during a three-minute section on gun violence. He pointed toward the ceiling for emphasis. “The only one!”

Since 2005, when the then-senator voted against the Protection of Law Commerce in Arms Act, or PLCAA, Biden has voiced his opposition to the measure, which ultimately passed in a 65–31 vote. But in recent months, while grappling with elevated rates of gun violence, he has turned up the volume on his critique. He’s brought PLCAA up in comments after a recent shooting in Iowa and at a February roundtable discussion on gun violence solutions with Mayor Eric Adams at the New York Police Department headquarters.

The problem with Biden’s disdain for gun liability protections (aside from the fact that he overstated the immunity the firearms industry receives) is that his administration is going out of its way to defend them. Sitting in the front row at the State of the Union was Attorney General Merrick Garland, the head of the Department of Justice.

“Our obligation in the Justice Department is to defend the constitutionality of statutes that we can reasonably argue are constitutional,” Garland said at a House Judiciary Committee oversight hearing in October. Democratic Representative Ted Deutch, who represents Parkland, Florida, where families are suing over the 2018 shooting at Marjory Stoneman Douglas High School, had just asked him about PLCAA. “That’s the position the Justice Department takes. Whether we like the statute or not, we defend the constitutionality of Congress’s work.”

The Department of Justice declined to comment when The Trace reached out, but Michael Gwin, a White House spokesperson, said in an emailed statement that the different positions aren’t noteworthy: “It is not abnormal for DOJ to defend the constitutionality of a federal statute that the President opposes on policy grounds. In fact, DOJ’s general standard — across administrations — is that it will defend the constitutionality of a federal statute unless no reasonable arguments can be made in its defense.”

The president’s criticism of PLCAA and the DOJ’s ongoing defense of it comes as gun reform advocates and Democratic lawmakers press Biden to do more to address gun violence. For Biden, PLCAA is of particular importance: He ran on an agenda of repealing it, and differentiated himself from Senator Bernie Sanders of Vermont in the Democratic primaries by targeting Sanders’s vote for PLCAA in 2005. Now, several groups pushing for gun reform, including Guns Down America and March For Our Lives, are panning the Biden administration for having what they call a contradictory position on the law. 

Since 2005, PLCAA has generally blocked gun violence victims and their families from suing to hold liable both the makers and sellers whose guns were used in criminal shootings. It’s faced several constitutional challenges, but none have successfully defeated it. In several cases, plaintiffs have argued that by passing PLCAA, Congress violated the separation of powers by interfering with the activities of the judicial branch. In others, plaintiffs have argued that the law violates Fifth Amendment due process rights, interferes with states’ 10th Amendment authority to control their court systems, and represents an overstep by Congress in its authority to regulate interstate commerce.

In passing PLCAA, Congress aimed to prevent lawsuits that could hurt the gun industry. But in many ways, conversations about PLCAA are about much more than just gunmakers and sellers. The mechanism that Congress relied on to pass the legislation is the Constitution’s Commerce Clause, which gives Congress power to regulate commerce that crosses state lines. Under more liberal interpretations, it also allows Congress to regulate activities, like lawsuits, that could affect the health of interstate commerce. Over time, this clause has become the main source of Congress’s regulatory power. 

A broad ruling on PLCAA’s constitutionality could threaten this interpretation of the Commerce Clause, which “could inhibit the ability of the federal government to pass other legislation,” said George Mocsary, a professor of law at the University of Wyoming College of Law who focuses on Second Amendment and firearms law. 

Notably, federal gun laws like background check requirements and licensing of gun sellers also rely on Congress’s power to regulate interstate commerce. An adverse PLCAA ruling could open the door for those laws to be challenged, as well.

Whether to protect the gun industry or the government’s powers, the Justice Department’s lawyers under the Biden administration have argued that courts should leave the law alone. “There are no serious constitutional concerns here,” DOJ lawyers wrote in a June 2021 brief in a California case against Smith & Wesson and a San Diego gun store over a 2019 mass shooting at a California synagogue. “In short, PLCAA is constitutional.” 

The Department of Justice remains involved in an ongoing case against Springfield Armory in Pennsylvania, after one of that gun maker’s pistols was used in the accidental shooting death of a child. In 2020, a Pennsylvania Superior Court panel found the liability shield to be an unconstitutional violation of the 10th Amendment and an invalid application of the Commerce Clause. The decision was vacated, but the case is ongoing. And in November 2021, the DOJ filed a separate brief in a Texas state court case defending PLCAA in a lawsuit brought by the families of the 2019 Midland-Odessa shooting victims.

The administration’s seemingly contradictory strategy isn’t unusual. It’s typical for the Justice Department to stand by any federal law unless it’s clearly unconstitutional or the president directs otherwise. Since courts have repeatedly found PLCAA constitutional, it’s not surprising, or necessarily indicative of a problem, that the DOJ would defend the law.

“Generally, it’s good that we don’t have the Department of Justice’s views of the constitutionality of a statute changing every time an administration changes,” said Jake Charles, a lecturing fellow and executive director of the Center for Firearms Law at Duke University School of Law.

Although the Justice Department may have a policy to defend federal laws once they are involved in a case, there’s been nothing forcing them to protect PLCAA in court. Unlike many cases concerning the constitutionality of a federal policy or law, the federal government isn’t automatically involved in PLCAA cases, because it is not the target of the suit. Defendants are typically the gun makers and gun sellers, and they’re generally the ones to raise PLCAA as a defense. At that point, if the plaintiffs argue PLCAA is unconstitutional, the Justice Department may decide to petition the court to become a “defendant-intervenor” so that its lawyers can argue for PLCAA’s constitutionality.

On the other hand, there’s also a centuries-old precedent for a president to direct the DOJ to stop defending a federal law they disagree with. In 2011, President Barack Obama instructed the Department of Justice to cease defending the Defense of Marriage Act, which prohibited federal recognition of same-sex marriages. Obama’s reversal was a win for LGBTQ rights activists, and it was prompted in part by then-Vice President Biden coming out in support of same-sex marriage before Obama did. 

“The department has declined to defend a statute in cases, like this one, where the president has concluded that the statute is unconstitutional,” then-Attorney General Eric Holder said at the time.

Other presidents have taken similar stances. In 1996, President Bill Clinton ordered the Justice Department not to defend a law requiring the discharge of military service members diagnosed with HIV. And President Franklin D. Roosevelt refused to defend a law that was designed to keep federal employees thought to be “communists” during the Red Scare from being paid, a statute that was eventually ruled unconstitutional.

Biden has not explicitly said whether he believes PLCAA is constitutional. The White House didn’t respond to a question on that front, either. It’s possible Biden thinks PLCAA is both a bad law and constitutional, which would explain why he’s allowing the DOJ to defend it in court. But when families of the victims of the Sandy Hook shooting settled a lawsuit against Remington Arms for $73 million recently, one of only a few suits to have bypassed PLCAA’s protections, Biden praised the outcome. “I will continue to urge state and local lawmakers, lawyers, and survivors of gun violence to pursue efforts to replicate the success of the Sandy Hook families,” Biden said — though the president’s call doesn’t seem to apply to the federal government’s lawyers.