Protection of Lawful Commerce in Arms Act

By:  Lindsey Graham
Date: July 28, 2005
Location: Washington, DC


PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

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Mr. GRAHAM. The reason I am supporting this bill, from a 30,000-foot view of it rather than getting down into the weeds, is I think this is a defining ``cultural moment'' in the history of our country--when under what circumstances can someone get in your wallet, hold you responsible financially for an event, no matter how unfortunate it might be. Generally speaking, in the law of negligence, the first thing you have to establish in civil liability is a duty. You have to prove that the person being sued had a duty and violated that duty and the violation was the proximate cause and the damages flow from that event.

Here is what this bill does not do. It does not let a gun manufacturer off the hook from the duty of producing a reliable and safe gun. If you defectively produce a weapon, you can be held liable. It doesn't let a seller or a distributor off the hook for violating a statute or making a sale illegally because it says, if you violate the law that exists, then you have broken a duty. Duty can be established by relationships. It can be established by a statute. So this bill does not allow someone to sell a gun without following the procedures that we have set out to sell a gun. It doesn't allow someone to make a gun that is unsafe. You are on the hook, and you can be held accountable based on a simple negligence theory or a negligence per se theory, if you violate a specific statute during the sale of a gun or manufacturing of a gun.

But what this bill prevents, and I think rightfully so, is establishing a duty along this line: That you have a responsibility, even if you do a lawful transaction or make a safe gun, for an event that you can't control, which is the intentional misuse of a weapon in a criminal fashion by another person.

That is the heart of this bill. It doesn't relieve you of duties that the law imposes upon you to safely manufacture and to carefully sell. But we are not going to extend it to a concept where you are responsible, after you have done everything right, for what somebody else may do who bought your product and they did it wrong and it is their fault, not yours. So it does not matter whether you use a gross negligence standard, a simple negligence standard, you have blown by the concept of the bill in my opinion. The debate should be, is there a duty owed in this country for people who follow the law, manufacture safely, sell within the confines of the laws we have written at the State and Federal level to the public at large if an injury results from the criminal act of another? If that ever happens, this country has made a major change in the way we relate to each other and a major change in the law.

There are other efforts to make this happen. There is an effort, on the part of some, to hold food manufacturers liable if you choose to buy a lawful product and misuse it by eating too much of it, creating a duty on the part of the people who sell food to manage your own behavior, the behavior of another. Once you leave the store, if you follow this out, they should go home with you and make sure you are doing everything else right.

That to me is why this amendment from my good friend from Michigan should not be adopted and why we need to pass this bill. I am all for legal duties where there is a reason for them to exist. Safely manufacture a gun? You better believe it. If you put it in a stream of commerce and it hurts somebody and it is your fault, you will have a day in court.

If you sell a gun and you don't do it right and you have it in the wrong hands, then you will have your day in court.

The bill even has a negligent provision. If you negligently entrust a weapon to someone you know or should know should not have that gun, you will have your day in court. What we are not going to do, under a gross negligence or simple negligence standard, is create a duty on the part of sellers and manufacturers for an event that they can't control, which is the intentional misuse of a weapon to commit a crime or something akin to that, something that you can't control, nor should you be required to be responsible for the actions of others in that area of life. If we ever hold people who make products accountable for the misdeeds and the mistakes of others when there is no rational relationship or no rational ability to control it, then we have fundamentally changed America. This bill is very important, I say to Senator Craig. We have to pass this bill and stop this kind of legal reasoning because it is going to undermine our country.

With that, I yield the floor.

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Mr. CRAIG. Mr. President, we have heard some of the most fascinating arguments in relation to the Levin amendment on both sides. I think it is clear if the Levin amendment were to become part of this legislation and this legislation were to become law, it would be relatively meaningless as to where we are in relation to the kind of junk or dilatory lawsuits that are currently being filed against gun manufacturers and gun dealers who not only produce a legal product to the market but sell it in the legal context.

It is important that we understand the arguments about gross negligence and reckless conduct. The idea that has been expressed by the Senator from Arizona, the Senator from Texas, and certainly the Senator from South Carolina, is that once you argue that, then obviously as an attorney the process must prove you are either right or wrong. In so arguing it, and in the effort of making proof, you have in large part destroyed the intent, of the legislation.

Mr. GRAHAM. Will the Senator yield?

Mr. CRAIG. I am more than happy to yield to the Senator from South Carolina.

Mr. GRAHAM. This has been a fascinating legal discussion. May I have a minute or two to answer?

Mr. CRAIG. I will allow the Senator to take as much time as he desires.

Mr. GRAHAM. I missed it. I think the fact pattern goes along the lines of a criminal goes in with a girlfriend or some other person and tries to purchase a weapon. What responsibility would someone have there?

If the dealer or the seller or the person in question had a reasonable opportunity to know a crime was afoot, or this was a sham deal, then I argue the bill would cover it under negligent entrustment. But here is what we would not want to do, in my opinion. You wouldn't want to hold the seller or the distributor liable if he had no reason to understand that a criminal conspiracy by two people he is not responsible for was about to happen. Because that would be unfair. But if he had a reason to know, a reasonable opportunity to know, then that would be a totally different scenario.

That is a classic example of what we do not want to do. If a person, about to make a sale, should have known something was afoot to violate the law, they can be held responsible. But if you as a dealer are a victim of a criminal conspiracy you had no part or knowledge of, we are not going to make you responsible. That is the essence of this bill. Because to do so would undo legal concepts that stood 200 years, would put people out of business, and makes no sense.

I yield back to Senator Craig.

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