Protection of Lawful Commerce in Arms Act
PROTECTION OF LAWFUL COMMERCE IN ARMS ACT -- (Senate - July 28, 2005)
Mr. KENNEDY. Mr. President, I wish to speak on another subject, the underlying legislation, the gun immunity bill. This bill is deceptively named the Protection of Lawful Commerce in Arms Act, but it will make it virtually impossible to bring lawsuits against the gun industry, even in circumstances in which the industry's conduct contributes to unlawful gun violence.
The bill purports to exempt suits in which the manufacturers and sellers engage in illegal or negligent conduct, but these exemptions are poorly defined and clearly would not cover many types of bad conduct.
The Senate majority leader says this bill is of urgent importance, taking precedence over the Defense bill because the Department of Defense faces the real prospect of having to outsource side arms for our soldiers to foreign manufacturers. But the real story is that the Republican leadership and the Bush administration will do whatever it takes to give the gun industry all that it wants.
The NRA wants gun dealers and manufacturers to be protected from lawsuits. The NRA expects--the NRA demands--that this body remove the last resort for victims of gun violence against negligent and often complicit gun dealers and manufacturers by barring all types of cases.
Let's be clear about what this bill does not do.
It does not help our law enforcement officials fight crime or terrorism.
It does not meet the urgent need to strengthen any of our gun control laws.
It does not affect--it does not address at all--the rights or ability of law-abiding citizens to purchase and own a gun.
It does not have anything to do with the second amendment, no matter how you interpret the language of that amendment.
This bill has one motivation: payback by the Bush administration and the Republican leadership of the Congress to the powerful special interests of the National Rifle Association.
As the New York Times reported less than 2 weeks ago, Wayne LaPierre, the executive vice president of the NRA, made it clear that the NRA expected total support from its allies--or else.
Mr. LaPierre said, ``It's simply bad politics to be on the wrong side of the second amendment at election time,'' asserting that Vice President Al Gore lost the 2000 Presidential election because he supported gun control, including a Federal ban on assault weapons.
That is the same assault weapons ban that President Bush told the American people he supported but then allowed to expire.
We know what happened when the NRA pushed this special interest bill last year. When the Senate voted to reauthorize the assault weapons ban as part of the bill, the NRA called their supporters and instructed them to vote against the bill for which it had just lobbied. What a disgraceful spectacle, Members of this great body reversing themselves on the Senate floor minutes before a vote because of a single call from the NRA.
That same kind of raw special interest power is now being used again to take the Senate away from the important business of protecting our men and women who are fighting in Iraq and Afghanistan so that a few unsavory gun dealers and gun manufacturers can channel powerful killing machines into the hands of criminals and terrorists in this country without any regulation or judicial oversight whatever.
The manufacturing of guns, unlike the manufacturing of nearly every other consumer product in the country, is not subject to consumer product safety standards. As it stands, manufacturers and sellers in the industry are free to design, make, and market these products with no independent review of their potential risk.
The gun industry is the only industry whose products are not subject to basic consumer health and safety regulation. Why stop with the gun industry? Why not make tire manufacturers immune from lawsuits or car manufacturers or bicycle manufacturers or toy manufacturers? Obviously, it would be absurd to shield any negligent manufacturers from liability for their action. But when it comes to shielding the gun industry, the NRA is calling the tune and too many Members of this body are tragically dancing to it.
The other side also tells us that it is too burdensome on the gun industry to fight these lawsuits. After all, we are told there are thousands of gun laws on the books and the Government can enforce them. Let us look at some of those gun laws and how the gun lobby has systematically made it more difficult, and in some cases even impossible, for the Government to police negligent gun dealers and manufacturers while making it easier for criminals to get their hands on guns.
Federal gun dealers are regulated under Federal law and required to perform background checks of gun buyers, but at the urging of the gun lobby several years ago, Congress drastically narrowed the definition of gun dealer. Now there are many unregulated individuals who do not meet the new definition. These reckless and unlicensed dealers are now selling millions of guns to people, including criminals and terrorists, without background checks. All of that is legal because the U.S. Congress kowtowed to the NRA.
In the case of Afghanistan, our troops found an al-Qaida manual that instructed terrorists on how to buy guns legally in the United States without having to undergo a background check. Al-Qaida understands that we have created a mess that allows, even encourages, criminals and terrorists to traffic in guns. But we will not do anything about the so-called gun show loophole because the NRA has snapped its fingers and said no.
We are told by the other side that victims of gun violence do not need recourse to the courts because the Government is already inspecting and overseeing the businesses of gun dealers. But is that the whole story? Absolutely not. At the direction of the NRA, Congress limited Federal inspection of gun dealers to once a year, and passed laws making it virtually impossible for agents to conduct inspections more than once a year. If an agent happens to inspect a negligent or even grossly negligent gun dealer in January, the dealer does not have to worry about the feds showing up for at least another year.
Federally regulated financial institutions can be inspected without notice whenever and as often as the regulators deem appropriate. Meatpacking companies, shipyards, iron foundries, gas refineries can all be inspected without notice whenever and as often as the regulators deem appropriate, but not gun dealers. Congress and the NRA have said they can be inspected only once a year.
What difference does that make in the life of the average citizen? It makes a lot of difference. Just ask the innocent victims of the DC sniper attacks. When the regulators cannot keep tabs on gun dealers it means the companies like Bull's Eye Shooter Supply Store, the dealer that supplied the Bushmaster rifle to the DC snipers, can get away with supposedly losing the rifle that ended up in the hands of DC snipers and losing more than 200 other guns that ended up who knows where.
The DC sniper victims had only the courts to turn to for recourse because Congress made it impossible for Federal agents to police unsavory gun dealers such as Bull's Eye. Now the NRA is telling us, take away the courts, too. Why? An obvious answer is that gun dealers and manufacturers want to sell more guns.
Our laws are designed by the NRA to increase the sales of guns by dealers and manufacturers even if they are sold to or by criminals. The NRA is lavishly rewarded for lobbying successes and so are the Members of Congress who do their bidding. It is hard to reach any other conclusion. The unholy alliance and control of the legislative process against the safety of our citizens is immoral and it is a disgrace. But let us look at the other outrageous actions that this body has taken because the NRA has demanded it.
Congress has cut Federal funding for the agency that oversees gun dealers and manufacturers. In fact, the GAO has recently reported that the ATF is so underfunded that it would take 22 years to inspect the records of all gun dealers in this country just once. The GAO report has also found that terrorists and people on the terrorist watch list are not automatically barred from purchasing guns and are routinely buying guns in this country. This must stop.
The gun industry must have some accountability. That is why I am offering my amendment that would ensure that cases could be brought against gun manufacturers and dealers aiding or abetting a representative of a designated foreign terrorist organization. One can find a list of the designated foreign terrorist organizations on the Internet, and it includes al-Qaida and Hamas among others.
How can Congress deny victims the right to challenge a manufacturer or dealer that provided guns to a foreign terrorist organization which caused them harm?
This administration continuously says that we are engaged in a war on terror, but it takes a position that the war on terror does not allow us to prevent terrorists from buying guns in this country. Because of the actions of this administration, this Congress is caving to the NRA. Terrorists can now add assault weapons to their arsenals, all to appease the NRA so they will give campaign
contributions and get out the vote. This is not only a disgrace, it is criminal and it has to stop.
The hypocrisy is mind-boggling. After 9/11, the worst terrorist attack in the history of the Nation, the Justice Department, over the objection of the FBI, at the urging of the NRA, decided that the Government had to destroy within 24 hours the background check records of all gun purchases. What is the rationale for the destruction of background checks of records in 24 hours? Former Attorney General Ashcroft and the NRA decided that it was a violation of privacy rights of law-abiding citizens to have their records held on file for 90 days, as they have been for years since the passage of the Brady bill.
This is the same John Ashcroft who, in the immediate aftermath of 9/11, prohibited--that is right, he prohibited--the FBI from examining the gun purchasing records of any of the 19 hijackers or any of the 1,200 other terrorist suspects who were detained for questioning. What kind of society are we turning into? We are supposed to be protecting this Nation from terrorism, not aiding and abetting terrorists.
Within days of the 9/11 attacks, we knew who the hijackers were. We knew where they sat on the planes. We saw some of their faces on surveillance videos. We know what they had charged on their credit cards. We know where they had gone to school. We know where they lived, where they traveled. We know that they had tried to get pilots licenses. We know they had looked for ways to transport hazardous chemicals, but we did not know where they or their terrorist friends had purchased their firearms because we were worried about their privacy rights and their rights to bear arms. Give me a break.
Every day, law-abiding Americans have their every move videotaped by surveillance cameras. They are required to take off their shoes and jackets and be searched at airports, have their luggage inspected and opened. Yet our Government worries about the privacy rights of terrorist gun owners and refuses to let the FBI look at gun purchase records of suspected terrorists? The Justice Department refuses to stop suspected terrorists from buying guns, and then it destroys those records in 24 hours? Something is rotten here, and it has to stop.
I ask again, whose side are we on? Instead of addressing the real issues that can make our country and our communities safer, we are considering a bill that will close the courthouse door to victims of gun crimes and give a free pass to the handful of gun dealers and gun manufacturers who sell firearms to terrorists and criminals. We are doing it to appease the special interests of the NRA.
Law-abiding citizens who sell or purchase firearms do not want to give criminals a free pass, but that is exactly what this bill will do. If we vote for it, we will be aiding and abetting these wrongdoers, just as Congress has done for years at the command of the NRA. This bill gives greater protection to the gun industry than Congress gave to the health care industry, to teachers and volunteers under the headline of tort reform. The legislation is so extreme that it requires the immediate dismissal of any cases pending in either State or Federal court.
By doing so, the bill denies victims their day in court. It amounts to an unprecedented interference with the judicial branch of Government and is an outrageous violation of the rule of law.
The bill's supporters misrepresent the real goal of the lawsuits filed against this industry. These lawsuits are not filed in an effort to bankrupt the industry. Like all tort suits, the victims turn to the courts to obtain compensation for their injuries and demand responsible conduct.
Let's be clear and debunk a few myths that the other side is spinning. The gun industry is not uniquely burdened with lawsuits. They just do not like what the public discovers about the industry and its practices when documents are produced in litigation.
This immunity bill is not aimed only at frivolous lawsuits. The truth is, it bars almost all actions for negligence. If this bill had become law last year, the families of the victims of the DC snipers would have been barred from suing and receiving the settlement from the gun dealer in Washington State that lost and could not account for more than 200 guns in its inventory, like the assault rifle used by the DC snipers, that were used in the commission of other crimes.
If passed, the bill forces the dismissal of a lawsuit filed by the family of Massachusetts victim Danny Guzman, an innocent bystander shot on Christmas Eve in 1999. Danny was killed by a gun stolen by an employee working in a gun manufacturing plant. Danny, here in the picture with his cousin, was a true victim of negligent conduct. This gun factory lacked adequate security, recordkeeping, and other reasonable safeguards to prevent employees from taking guns in their pockets out of the plant. The lack of security was so bad that the owners of the plant did not even know the guns were missing. Danny's mother and his two surviving daughters sued the manufacturer claiming that it had negligently hired criminals to work in its plant and had such irresponsible security that allowed them to walk out of the plant with guns that did not have serial numbers. One of these guns was used to shoot Danny. This case should not be dismissed.
This bill will result in the automatic dismissal of a case just filed in Pennsylvania. Anthony Oliver, a 14-year-old boy, was killed by a handgun that discharged accidentally when he was playing with his friends. Anthony's life was cut short due to the gun seller's reckless conduct. His family filed a case against the gun companies that negligently allowed one of Anthony's friends to obtain a handgun. The dealer who sold the gun had a history of supplying guns to criminals and not even taking the minimum step to screen the purchasers. Over a 4-year period, Lou sold over 400 guns traced to criminals. Under this bill, Anthony's family will not get their day in court, and the irresponsible activities of this gun dealer and its supplier will not be stopped. This case should not be dismissed.
This bill would also bar municipal lawsuits. If this case passes, four pending cases involving New York City, the District of Columbia, Gary, IN, and Cleveland, OH, will all be dismissed. This bill is not about protecting the gun industry from bankruptcy. This bill is a blatant special interest bill to protect gun manufacturers and sellers who provide guns to criminals and even terrorists.
With this bill, Congress is aiding and abetting in the perpetuation of these crimes. Enough is enough is enough. I urge my colleagues to join me in saying no to this shameful bill and get back to the serious issues that face our country.
Mr. DURBIN. Will the Senator yield for a question?
Mr. KENNEDY. I am glad to.
Mr. DURBIN. I first commend the Senator from Massachusetts for explaining what is before the Senate, not only today but yesterday and the day before. Would the Senator be kind enough to tell those who are observing and following this debate which bill we took off the calendar, which bill we were considering, to move this bill on the calendar, this special interest bill to protect gun manufacturers and gun dealers from being held personally responsible for their wrongdoing? Would the Senator from Massachusetts tell us what bill we pushed off the calendar to bring on this special interest bill?
Mr. KENNEDY. The Senator from Illinois knows that one of the most important bills that we consider at any time of the year is the Defense authorization legislation. That is the legislation which provides basic resources and support for our armed services, not only in Iraq and Afghanistan but all over the world. It is the basic document which is the expression of our national priority in terms of national security and national defense.
As one who has been here for some years, having been a member of the Armed Services Committee, we met in the day and in the evening to report that bill out in a timely way so that it could be considered before the August recess. That is what we heard, as members of the Armed Services Committee, and we were in the process of doing that at the end of last week. As a matter of fact, there was one amendment offered by the chairman of the committee to restore money for up-armoring humvees, which I welcomed the opportunity to support. The chairman of the Armed Services Committee had opposed that up-armoring at the time we had the supplemental. That is very important, making sure our men and women serving in Iraq are going to have the body armor and have the best in terms of their protection. That is what is in that legislation. That is what we were considering. That is what we hoped to deal with.
All of a sudden, out of the blue, the Republican leadership says, No, we are going to pull that bill down and we will put it back on the calendar and consider this special interest legislation, which they have called up. They now use parliamentary procedures in order to even deny those of us who want to amend that legislation the opportunity to do so.
I don't know whether the Senator was here a few moments ago when our majority leader was talking about stem cell research, which we wanted to take up, which offered such hope and opportunity to conquer diseases. The majority leader said: We want everyone's views on our side of the aisle to be considered.
It is interesting. They want that on the stem cell research, but not on this special interest legislation.
It is deplorable. I know of at least 20 amendments from Members of our side and the other side, amendments that would provide additional help and support for the National Guard, for our reservists in the armed services of this country, that would have provided additional strengthening for our fighting men and women. To deflect that to consider this special interest legislation that is just going to serve the gun manufacturers makes no sense.
I know this is an extended answer. As the Senator remembers, we spent 2 weeks on the credit card industry legislation and bankruptcy. We spent 2 weeks in order to protect the credit card industry. We spent 2 weeks after that on class action legislation. We spent more than a week debating highways. We have spent 3 days on the Defense authorization bill. And then we have the Republican leadership pull that down? It makes no sense to me.
I wonder what the service men and women think about our priorities when an action like that is taken.
Mr. DURBIN. If the Senator would further yield for a question, I would say to the Senator, through the Chair, that the Army Times, the publication for our U.S. Army and its soldiers who are risking their lives in Iraq, ran a headline story that the Senate pushed off the Department of Defense authorization bill, which included amendments which were being offered to provide additional financial assistance to the widows and orphans of those soldiers who lost their lives in combat, took away the bill which included an amendment to allow additional payment for totally disabled veterans, and instead moved on the floor this bill for one special interest group, the gun lobby.
The Senator has made it clear the Republican leadership considers this bill, a National Rifle Association sponsored bill, more important than the Department of Defense authorization bill.
I ask the Senator from Massachusetts if he could tell me if he knows of any other industry, any business in America which enjoys the same kind of immunity from liability for their wrongdoing--any other business with immunity from liability that the gun industry and gun dealers are asking for in this legislation.
Mr. KENNEDY. The Senator knows the answer to that; that
is, there is none. This will be special, unique to a single industry that prides itself, as the spokesman for the NRA said--you better support this or else; basically saying that to the Congress of the United States.
Just to complete the thought about the sense of priorities, as legislators we basically express the priorities for the people of our State and the Nation. We express those priorities in our budget, on what we ought to be expending resources, and we express priorities by what we address on the floor of the Senate.
One of those amendments that was going to be offered to the Defense authorization bill--I know the Senator from Michigan was going to provide assurance that there was going to be mandatory spending to protect the veterans who are coming back from Iraq so they are guaranteed the kind of health care they are guaranteed before they go over there and fight and become wounded and need those kinds of services. That is offered in light of the fact that we are not providing the resources to serve our veterans.
That is something worthy of debate on the floor of the Senate. It seems to me that has a lot more priority for debate and discussion and decision by this body than the special interest legislation that we are considering with the National Rifle Association.
I ask whether the Senator would not agree with me on that?
Mr. DURBIN. I agree. I ask the Senator from Massachusetts another question about this bill. The Senator raises an important point. If a gun dealer in the United States sells a gun to someone----
The PRESIDING OFFICER. If the Senator from Illinois will suspend, the Senator from Massachusetts wanted to be informed when he had 3 minutes left. He has 3 minutes 10 seconds.
Mr. KENNEDY. I thank the Chair.
Mr. DURBIN. If a gun dealer in the United States has a history of selling guns to criminals--in other words, someone comes in and buys 100 Saturday night specials, ``fill up my trunk with guns''--obviously, not a sportsman or hunter or someone interested in personal defense, but someone who comes in and buys clearly for guns to be sold through straw purchasers to others--if the gun dealer has not even taken the time to check the FBI's Most Wanted list when making a sale across the counter, is this legislation saying that dealer, so negligent in his conduct, cannot be held personally responsible, or responsible as a business, in court for the victims of the gun violence that follows from that negligent act?
Mr. KENNEDY. The Senator makes an absolutely accurate point. We have here a list from the FBI of the Most Wanted fugitives. There is an amendment to say at least they have to look at the FBI's Most Wanted fugitives. Under this legislation, if the gun dealer sells it to one of the Most Wanted, they still get a free pass.
Under the current legislation, we are not even asking them to look on the Internet for those who are going to be listed on the Internet as members of terrorist organizations. We are not even asking them to do that. If they do, and they sell it, as we saw from the al-Qaida book over in Afghanistan saying go on in there and purchase it because you are not going to be bothered--we are not even holding them accountable to do that. Is that what we want to do, when we have seen what has happened in London, and what is happening, and we appropriate more and more resources for homeland security, not even to require that the gun dealer is going to check the Most Wanted list of the FBI?
We can't even offer that amendment so it will be voted on. We are being blocked by the power interests on the other side from even having the Senate consider that amendment. That is the power of the NRA. They are not letting any of these kinds of amendments dealing with the Most Wanted list or the terrorist list--we can't even get it before the Senate. That is the lock, the hold that the NRA has. It is disgraceful.
Mr. President, I yield the floor.
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