Protection of Lawful Commerce in Arms Act - Motion to Proceed

PROTECTION OF LAWFUL COMMERCE IN ARMS ACT--MOTION TO PROCEED -- (Senate - July 26, 2005)

BREAK IN TRANSCRIPT

Mr. SESSIONS. Mr. President, we are now proceeding to S. 397, after a very strong cloture vote with 66 Senators voting to move forward on this legislation. It is something we have had taken up quite a number of times. It has broad support in terms of business groups, gun owners, law enforcement, labor unions, and sportsmen. There is nothing in it that is harmful or damaging to our legal system. There is nothing in it that provides any special interest protection to gun manufacturers. But it is a legitimate response to a growing concern that our legal system is being abused in such a way that could actually take legitimate businesses and put them out of business.

I think it is something that is of great concern to us, and this Senate has a majority that is ready to move forward with it. In the great spirit of our Senate, we will have a lot of debate. There are those who don't approve. I know Senator Reed of Rhode Island is a strong opponent of this legislation and he will certainly have a great opportunity to express his concerns on it. That is part of what we do. I note, however, this is not the first time the words will have been spoken on this issue. This bill has been up for some years now and has come close to becoming law on several occasions, but has not yet done so.

It is important that we note that this legislation has the potential to impact our economy adversely. We need to look at how these proposed novel legal theories adversely affect our economy. Someone will be making firearms in the world. People are not going to stop buying firearms. They have a constitutional right to do so. It would be the height of stupidity if we were to create laws and a legal system that put our firearm manufacturers out of business so that we have to buy imported firearms. That would not make good sense.

Our ultimate obligation is to the public. This body should take no steps that would provide improper immunity for defective practices or defective firearms that could be sold. That absolutely must not be done. With that said, it is essential that we refrain from developing a legal system, however, where lawyers are able to create causes of action and steer public policy through litigation--a public policy they have not been able to win at the ballot box, and not been able to win through their State legislatures and the Congress. So since they have not been able to win in the legislative branches, what we have had is a group of activist anti-gun people trying to accomplish the same goal through litigation.

We also need to remember in all we do regarding litigation that personal responsibility is an important American characteristic. Individual responsibility must not be stripped from all our expectations, where plaintiffs are suing third parties on an almost strict liability theory. Many trial lawyers are attempting to invent new causes of action, with hopes of striking a litigation oil well. As a result, industries such as arms manufacturing and the food industry are facing enormous insecurities. These industries have great reason to be insecure. Everyone knows how detrimental runaway verdicts can be and one major verdict can bankrupt an industry. Huge costs arise from simply defending an unjust lawsuit. Indeed, such lawsuits, even if lacking any merit and ultimately unsuccessful, can deplete an industry's resources and depress stock prices.

Defendant industries must hire expensive attorneys and have their employees spending countless hours responding to the lawyers, providing them information and so forth, and meeting with them. Industries, in addition, must purchase liability insurance which takes away from funds necessary for expanding their new jobs, safety, research and development that they might otherwise be able to spend it on, which is important. No other nation must compete in the world marketplace carrying such a huge litigation cost as American businesses do and particularly gun manufacturers. Eventually, these costs are passed on to the consumer. Product prices increase and availability of the products becomes scarce.

In 1998, individuals and municipalities began filing dozens of novel lawsuits against members of the firearms industry. These suits are intended to drive the gun industry out of business by holding manufacturers and dealers liable for the intentional and criminal acts of third parties over whom they have absolutely no control. The firearms industry is particularly vulnerable to lawsuits.

In his testimony before a House subcommittee in 2003, the general counsel of the National Shooting Sports Federation stated:

Industry-wide cost of defense to date [against these lawsuits] now exceed $100 million. This is a huge sum of money for a small industry like ours. The firearms industry taken together would not equal a Fortune 500 company. The National Shooting Sports Foundation now believes litigation expenses have exceeded $150 million, Mr. President.

The danger that these lawsuits can destroy the gun industry is especially ominous because our national security and liberties are at stake. First, the gun industry manufactures firearms for American military forces and law enforcement agencies. Unlike many foreign countries, the United States doesn't have a government armory, but relies on private industry to make our firearms. Due in part to Federal purchasing rules, these guns are made in the United States by American workers. Successful lawsuits can leave the U.S. at the mercy of foreign small arms suppliers.

Second, by restricting the industry's ability to make and sell guns and ammunition, the lawsuits threaten the ability of Americans to exercise their second amendment rights. I can imagine the impact the ruin of the gun manufacturing industry would have on my home State of Alabama, which is one of the premier States in the Nation for hunting whitetail deer and eastern wild turkey. Hunting is a part of the way of life for nearly 500,000 Alabamans. That is about 1 in 9 of our citizens. Imagine if they were unable to obtain hunting rifles or ammunition. What would happen to the hunting industry, which brings close to $45 million a year in revenues into the State and provides nearly 16,000 jobs?

Additionally, if the arms industry must continue to hash out massive legal fees or eventually goes under, thousands of workers will lose their jobs. Manufacturers are already laying off workers to pay the legal bills. Secondary suppliers to gun makers have also suffered. This is why it is not surprising that the labor unions representing workers at major firearms plants, such as the International Association of Machinists and Aerospace Workers of East Alton, IL, support this bill. This union's business representatives stated the jobs of their 2,850 union members ``would disappear if the trial lawyers and opportunistic politicians get their way.''

Insurance rates for firearms manufacturers have skyrocketed since these suits began. I am going to talk about these suits and why they are fundamentally wrong in a minute. These suits have caused the insurance to go up and some manufacturers are being denied insurance and seeing their policies cancelled, leaving them unprotected and vulnerable to bankruptcy.

Thirty-three State legislatures have acted to block similar lawsuits, either by limiting the power of localities to file suit or by amending State product liability laws. However, one lawsuit in one State could bankrupt the industry, making all of those State laws inconsequential. That is why it is essential that we pass this law.

The lawsuits we are talking about--the kind of lawsuits we will be discussing today are the kind of lawsuits that do not have merit. They are not the kind of lawsuits that ought to be brought. Many of them eventually get dismissed by judges. Most of them do eventually. But the costs are huge and, who knows, some day an activist court may start allowing these lawsuits to be successful.

The anti-gun activists, at their base philosophy, want to blame violent acts of third parties--that is violent, illegal acts by criminals--on manufacturers of guns, because they manufactured the gun, and they want to be able to sue the seller who sold the gun simply for selling them. This doesn't make sense. Should a car dealer be sued if someone intentionally runs down a pedestrian because the car dealer sold the car that was used by a third party to commit a crime, a homicide? What about the car manufacturer? What an absurd thought. But that is the equivalent of what these plaintiffs are arguing to recover from gun manufacturers and sellers.

Guns can be dangerous in the wrong hands, but so can cars. Why would the manufacturer or seller of a gun who is not negligent, who obeys all of the applicable laws--we have a host of them--be held accountable for the unforeseeable action of some criminal third party? They should not, and this bill would simply prohibit that.

If you buy a gun and someone comes into your house and attempts to attack you or your family and you pull out that gun and attempt to use it and it fails to work because it was defective, and that criminal harms you or your family, you should be able to sue the gun manufacturer for a defective product. But if it fires as it is supposed to, as it was designed to, it operates like whatever widget is made in this manufacturing world we are in, and it does what it is supposed to do and it is a lawful product, you should not be able to be sued.

I don't understand how these lawsuits are being maintained. But we have major cities in this country that have taken it as a policy to sue the manufacturers for creating a product that works precisely as it is supposed to work, that is designed according to the laws of the United States, and it is sold according to the laws of the United States, and they still want to sue them for an intervening criminal act. That is contrary to our classical law of lawsuits and plaintiff lawsuits. It is something that I sense is being eroded, these classical principles of litigation today. I think that is one reason we are beginning to have movements to have court reform, lawsuit reform, around the country because courts have allowed things to go beyond what traditionally they were ever allowed to do.

So it sort of makes these gun manufacturers a guarantor, a person who would pay for all damages that might occur for a gun they manufactured. That cannot be the law and must not be the law. These plaintiffs are demanding colossal monetary damages and a broad range of injunctive relief; that is, orders from the court concerning this. These injunctions would relate to the design, manufacture, distribution, marketing, and the sale of firearms. We already have laws that cover all of that.

By the way, we have had laws about all of that. We have debated other laws the Congress and State legislatures have chosen not to pass. So the attempt, in a very real sense, is to put pressure on these companies to do things the elected representatives have decided they should not do or should not be required to do.

Some of the demands that are being made are the kinds of demands that legislatures, not courts, should be deciding: one-gun-a-month purchase restrictions not required by the State law, requiring manufacturers and distributors ``to participate in a court-ordered study of demand for firearms and to cease sales in excess of lawful demand,'' prohibition on sales to dealers who are not stocking dealers with at least $250,000 in inventory, a permanent injunction requiring the addition of a safety feature for handguns that will prevent their discharge by ``those who steal handguns.''

That will be a pretty ingenious device, if you can make it work. It is going to be on every gun that is sold? It may be within the power of this Congress to vote such a restriction if it can be done. It seems like somewhere in my memory we voted on something such as that.

But to have a judge who is supposed to be a neutral arbiter in a lawsuit start entering injunctions to require these kinds of things is beyond legitimate principles of law.

One of the most amusing demands was a prohibition on the sale of guns near Chicago ``that by their design are unreasonably attractive to criminals.'' Guns could not be sold near Chicago that are ``by their design unreasonably attractive to criminals.''

What would that mean? What kind of responsibility does a manufacturer have? Should each court make that determination? Is that what they were elected to do? Is that the role of the court? No. It is a legislative requirement.

These lawsuits are part of an anti-gun activist effort to make an end run around the legislative system. That is the fact. Because their efforts to pass restrictive legislation have only partially succeeded, they want to do more. So they are taking their cause to the judicial system hoping they will land in court before an activist judge who will somehow allow their view of how guns should be sold and manufactured to become a part of a judge's order. Just impose it. One judge who may not be elected--if it is a Federal judge, he has a lifetime appointment--just impose this by a court order. That is why people are concerned. So far they have not been successful in winning these cases.

The Ohio Court of Appeals held that allowing this type of liability would--they were correct about this--``open up a Pandora's box. For example, the city could sue manufacturers of matches for arson, or automobile manufacturers for traffic accidents, or breweries for drunk driving.''

That is the same principle. I believe that judge in Ohio was correct. In the city of Bridgeport v. Smith & Wesson Corporation, Judge Robert McWeeny aptly stated that ``plaintiffs must have envisioned such settlements as the dawning of a new age of litigation during which the gun industry, liquor industry and purveyors of junk food would follow the tobacco industry.'' It is clearly an attempt to build on and expand those kinds of theories of tobacco lawsuits to go even further than what we are dealing with here.

The Florida Supreme Court summed up the issue nicely when it refused to hear a plaintiff's appeal against the firearms industry in a lawsuit.

The plaintiff did not prevail in an appeal to the higher court in Florida, and the court held this:

The power to legislate belongs not to the judicial branch of Government, but to the legislative branch.

Hallelujah, Judge. I am glad you get it. Judges ought to be neutral umpires, not activists. They should not be setting public policy. They should not allow their courts to be used as a tool to further a political agenda, an agenda that has been rejected in the State legislature or Congress.

However, all it will take is one activist judge or activist court to destroy an entire industry in reality. So that is why the legislation is important.

Let me mention what this bill does and does not do. The bill is incredibly narrow. It only forbids lawsuits brought against lawful manufacturers and sellers of firearms or ammunition if the suits are based on criminal or unlawful misuse of the product by a third party.

I know it is hard to believe, but that is the theory of these lawsuits. That theory is you sold a gun lawfully, OK. You followed the complex Federal regulations that have a huge host of requirements. You followed the State legislature's requirements, often very complex, also, to the T, and it comes in the hand of a criminal, and they use it for a crime. Now the manufacturer and the seller are liable. What kind of law is that? We do not need that. These lawsuits are happening, and so all this would say is that those kinds of lawsuits cannot be brought.

Manufacturers and sellers are still responsible for their own negligent or criminal conduct and must operate entirely within the complex State and Federal laws. Therefore, plaintiffs are not prevented from having a day in court. Plaintiffs can go to court if the gun dealers do not follow the law, if they negligently sell the gun, if they produce a product that is improper or they sell to someone they know should not be sold to or did not follow steps to determine whether the individual was properly subject to buying a gun.

The plaintiff can still argue that actions such as negligent entrustment, breach of contract, or warranty, or normal product liability involving actual industries caused by an improperly functioning firearm can be legitimately brought as a lawsuit and should be able to be brought. Furthermore, any allegation that the bill burdens law enforcement is completely false. Gun manufacturers and sellers are already heavily regulated by hundreds of pages of statutes and regulations. The Government requires that all gun manufacturers, importers, and dealers receive licenses. They have to have those licenses. And they must keep all their records by serial number, and each gun has to have a distinct, separate serial number recorded before entering or leaving their inventory. That is, if they are manufactured in Massachusetts or someplace and they are shipped to Alabama, they ship it by each one's serial number and it is recorded. If it is received by a distribution center in Alabama, it is recorded there, and if it is moved off to a gun store or a Wal-Mart where they sell guns, it is entered there. When it is sold, it is entered. That serial number is recorded against the name of the person who bought it. That person who bought it must produce identification, must sign a sworn statement that they have not been convicted of a crime, that they are not under the influence of drugs, and a number of other things. They sign it. It is a Federal offense if they lie about it. And they do a background check.

So there are a lot of regulations set forth. The records have to be open for inspection by the Bureau of

Alcohol, Tobacco and Firearms without a warrant and at any time. They don't have a warrant. They can go into these licensed dealers any time, any day, and examine their records. That is the burden we put on gun dealers.

They can also do annual inspections without a specific investigation or obtain a warrant as any other law enforcement agency can.

Mr. President, I think I overstated it. The ATF can without a warrant any time do an inspection if it is related to an investigation of a gun that has been traced there, and they have an opportunity to do annual inspections at any time through the year as part of their enforcement dealings, and they do that. That guns are not heavily regulated is a complete myth. Gun dealers are carefully managed.

As a former U.S. attorney, I participated in the prosecution of a gun dealer for bad recordkeeping. He was most offended. Over a number of years we have created even more regulation. He really felt put upon, but he wasn't filling out the forms. He wasn't making people sign. He was telling people not to put down that they lived out of State because that affected whether the gun could be sold. He would tell them, don't fill that out, and things of that nature. He was not complying, and we prosecuted him. He went to jail and lost his ability to sell guns.

Licensed dealers have to conduct a Federal criminal background check on their retail sales either directly through the FBI, through its National Instant Criminal Background Check, NICS, or through State systems that also use NICS. All retail gun buyers are screened to the best of the Government's ability.

Additionally, the industry has voluntary programs to promote safe gun storage and to help dealers avoid selling to potential illegal traffickers in guns. Manufacturers also have a time-honored tradition of acting responsibly to issue recalls and make repairs if they become aware of defects. Law-abiding manufacturers and dealers of firearms are not threats to our society. They have not committed crimes by supplying our citizens with lawfully acquired firearms. It is essential that the people who are guilty, people who commit the crime, who deserve punishment, receive the punishment. More importantly, this legislation is needed so that people who have suffered a real injury from a real cause of action can be heard and taken seriously while those who are trying to improperly spread the blame will not.

Mr. President, it is the responsibility of Congress to review our civil litigation system, our court system, and see how it is working. If over a period of years tactics and techniques are developed that exploit weaknesses or loopholes or gaps in that system or allow the system to be abused, then I think everybody would recognize that we ought to take action to fix it. Every day, attorneys file lawsuits under laws that we pass and the court's interpretation of those laws. Congress has every right to monitor this, and we have a duty once we determine a type of litigation is so legally unsound and detrimental to lawful commerce that it should be constrained to enact meaningful legislation to constrain it and to stop abuse.

In the past, Congress has found it necessary to protect the light aircraft industry, community health centers, aviation industry, medical implant makers, Amtrak, computer industry members affected by Y2K problems, and good Samaritans.

Senator McConnell offered a bill to protect a person who tried to save another person, who was the victim of an accident, from dying. He believed that a person trying to do the best they can to protect someone else should not be sued, if they are somehow found to be faulty in a good Samaritan act.

Congress may enact litigation reforms when lawsuits are affecting interstate commerce, and many of these lawsuits are trying to use State courts to restrict the conduct of the firearms nationally. They are trying to create legal holdings by the courts that would impact the entire industry nationally. In fact, it is the stated purpose of many of these groups. And a single verdict, even a single verdict, large verdict of an anti-gun plaintiff, could bankrupt or in effect regulate an entire segment of our economy and of America's national defense and put it out of business.

I do not know when there has been a better example of when this type of legislation is needed. We must pass this bill. It is long overdue. It has 60 cosponsors. It is time for us to move forward and get it done.

It is simply wrong when we as a Congress have approved the sale of firearms in America and, through the Constitution, allowed the manufacture and sale of firearms, to allow those manufacturers who comply with the many rules we have set forth--they comply with those rules, to be sued for intervening criminal acts. They sell a gun and it ends up in the hands of a criminal, unbeknownst to them. If they knew, if they had reason to know, if they were negligent in going through the requirements of the law or failed to do the requirements of the law, they can be sued. But if they do it right and it goes into the hands of someone who uses it for a criminal purpose, the manufacturer of that gun absolutely should not be subject to a lawsuit. It is a political thing that is going on out there, the filing of these lawsuits all over the country in an attempt to crush an industry that this Congress and our Constitution have stated to be a legitimate industry.

I know Senator Reed has many wise comments on this, able Senator that he is. We will disagree, but I certainly respect his views.

I yield the floor.

BREAK IN TRANSCRIPT

Mr. SESSIONS. Mr. President, there still remains a very serious problem and a very serious threat to gun manufacturers in the United States. Sure, a lot of these cases have not been successful because they are so bogus, so contrary to classical rules that a person is not liable for an intervening action done by a criminal, an intervening criminal act.

I will add, when I was a U.S. attorney, an individual walked off a veterans hospital grounds and was murdered. They sued the VA hospital for wrongful death. I defended on the theory that the hospital could be liable under certain circumstances, but there was a strong principle of law which I cited that an intervening criminal act is not foreseeable. You are not expected to foresee that someone will take a lawful product and use it to commit a crime or that they would commit a crime. This is a settled legal principle.

We are eroding these things and we end up with all kinds of problems. That is one of the things disrupting our legal system, particularly if there is a political cause here, a group of people who absolutely oppose firearms in any fashion. Mayors in major cities are encouraging these lawsuits and pushing them. We end up with some real problems.

Let me share with our colleagues this letter from Beretta Corporation. It was mailed out in 2005 by Mr. Jeff Reh, general counsel, written to the Vice President of the United States. He says a few weeks ago the District of Columbia Court of Appeals issued a decision supporting a DC statute that those manufacturers of semi-automatic pistols and rifles are held strictly liable for any crime committed in the District with such a firearm.

It had not been used until the District of Columbia recently filed a lawsuit against the firearm industry in an attempt to hold firearm makers, manufacturers, importers, and distributors liable for the cost of criminal gun misuse in the District.

The court of appeals, sitting en banc, dismissed many parts of the case but did rule that:

Victims of gun violence can sue firearm manufacturers simply to determine whether that company's firearm was used in the victim's shooting, and if so, they become liable.

He goes on to say that such a decision ``will make firearm manufacturers liable for all costs attributed to such shootings, even if the firearm involved was originally sold in a State far from the District of Columbia and to a lawful customer.''

If you sell a gun to somebody in Minnesota and they bring it to DC and some criminal uses it to shoot somebody, the gun manufacturer now becomes liable for that Beretta or Smith & Wesson or whoever made it. They go on to say this decision ``has a likelihood of bankrupting not only Beretta, but every maker of semiautomatic pistols and rifles since 1991.'' There are hundreds of homicides committed with firearms each year in DC, and others are injured. And the defendants, under this bill, would have no defense that they originally sold the pistol or rifle to a civilian customer. So they ask that this legislation be supported.

Without it, companies like Beretta, Colt, Smith & Wesson, Ruger, and dozens of others, could be wiped out by a flood of lawsuits emanating from the District. This is not a theoretical concern.

The instrument to deprive the United States citizens of the tools through which they enjoyed a second amendment freedom now rests in the hands of trial lawyers in the District. Equally grave, control of the future supply of firearms needed by our fighting forces and law enforcement officials and private citizens throughout the country also rests in the hands of these attorneys. We will seek Supreme Court review of this decision, but the result of a Supreme Court review is not guaranteed. Your help might provide our only chance of survival.

It is the principle of the thing we are concerned about, first and foremost. Do we believe that a manufacturer who complied with the law and who sold a gun in Minnesota or in Kansas and sold it lawfully, according to the rules of the State of Alabama or Minnesota and Federal Government rules, and that gun ends up in the District of Columbia, they now become liable for an intervening criminal act? That is not a principle of law that can be defended, according to justice or fairness. But we are in that mode now of using the courts to effect a political agenda that goes beyond what the Congress and elected representatives are prepared to vote. In effect, it would bankrupt these companies and may be able to prohibit people from even having firearms or certainly denying them a place to go buy a new firearm and ultimately denying them the right to purchase firearms.

So that is what we are concerned about. We are not trying to overreach here. We are trying to eliminate this political abuse of the legal system to effect a policy decision not subject to being won in the legislative branch.

Under this bill, I think it is very important to note that you can sue gun sellers and manufacturers who violate the law. It is crystal clear in the statute that this is so. To start off, one of the first things it says is an action can be brought against a transferer--that is, a seller--of a gun by any party directly harmed by the product of which the transferee is so convicted for violating the law. It also says this in paragraph 2:

These are actions that are allowed to be maintained by this legislation and are not constricted.--An action brought against a seller of the gun for negligent entrustment for negligence per se.

It is some sort of negligent act that gave the gun to the customer. We will leave it at that.

No. 3, an action can be brought against a manufacturer or seller of a qualified product, or gun, who knowingly violated a State or Federal statute applicable to the sale or marketing of the product when that was the proximate cause of the injury, such as the 12 guns being sold and mentioned by Senator Reed earlier. I suspect that violated a law. It is certainly a violation of the law for a person to knowingly or negligently entrust a gun to someone when they believe or have reason to believe that it is a straw purchase. That would be a violation of the law. You have to produce an ID, sign a statement, say it is your gun, say you have not been convicted of a crime, say you are not a drug addict, where your residence is, and other laws that States and communities may have, such as waiting periods, before you can pick it up. You have to wait for the background check to see if those statements you made are valid.

So you can still bring those lawsuits if you don't comply with that. Lawsuits can be brought whenever the manufacturer or seller knowingly made any false entry or failed to make, negligently or otherwise, an appropriate entry in any record required to be kept under Federal or State law with respect to the qualified product or if they aided or abetted or conspired with any person in making any false or fictitious oral or written statements with respect to any material fact to the law necessary in the sale or other disposition of the qualified product. And if they can maintain a lawsuit also, if you aided and abetted or conspired to sell or dispose of a qualified product, knowing or having reasonable cause to believe the buyer of the qualified product was prohibited from possessing or receiving a firearm, which would include a straw purchase, if you know you are selling it to this person and you know it is going to that person, then you would know that would be improper and it would be a negligent entrustment or violation of the statute.

I think those are important exceptions, as are many others. So it doesn't give immunity to gun dealers. That much we can say for sure. Now, it has been said that, well, these dealers--this little gunshop down here did something wrong and they would have insurance and the insurance company would pay. It is not so bad on them. But, Mr. President, that is a slippery slope, an unwise public policy argument that I think we use too much. One of the things that raises questions in my mind about the effectiveness of a lot of litigation today is it is argued that it is going to punish this person who did something wrong. But in truth, the insurance company pays all of it probably--maybe all of it, maybe a small deductible is paid by the wrongdoer, and insurance company pays the cost of defending the lawsuit. It is not the wrongdoer. So the juries are told they are punishing this wrongdoer who made an error, but really the insurance company pays it. What happens? They raise the rates on everybody. So if one gun dealer has messed up and he gets sued, as he should be, and he has to pay a verdict, the weird way our system is working today is the insurance company pays the verdict, and everybody's rates go up--every gun dealer who complies with the law, their rates go up too. It is something that has been bothering me as time goes by.

They are stating, as legal theories, broad powers and requesting broad relief, similar to some of the things I mentioned here in the District of Columbia in the Beretta letter. Sometimes the plaintiffs have argued that the very sale of a large number of guns and pistols, when a manufacturer knows that some of those ``might'' end up in the hands of criminals, means that they become liable. What kind of law is that? It is a stretch beyond the breaking point that if you comply with the law, you sell a firearm to a lawful customer in your shop and they have the proper identification, and you take all the proper steps, somehow that you become liable if that person utilizes it unlawfully or sells it or gives it to somebody who utilizes it unlawfully.

That is not the way the American legal system works. Those are the kinds of lawsuits being pushed, I submit, for political reasons because people are frustrated that they have not been able to get the legislatures to eliminate firearms. Who should be liable? The person who commits the crime. John Malvo--if he commits a crime using a gun, he should be the one that pays and is sued in our system but, of course, people say Malvo doesn't have any money, so we will sue Wal-Mart because Wal-Mart sold the gun to somebody and it eventually went through somebody's hands and they got it, or whatever store sold the gun. Or we will even sue Smith & Wesson in Boston because they sold the gun and somebody was injured with it. What kind of law is that? I am very concerned about this theory. We have moved so far from our principle of liability. That is why it is quite appropriate here. And there may be other instances with other businesses around the country that are being unfairly held liable for actions that should not be their responsibility.

I will make a point about the serial number. I raised an issue I am personally aware of. The manufacturers have to put a serial number on every gun, which has to be recorded every step of the way as it moves from the manufacturer, to the distributor, to the subdistributor, to the retail store, to the customer. They are recorded and kept up with. A statement is filed including the name, address, phone number, driver's license, and a number of other things that are required by State and Federal law before it can ever be sold. It is now, and has been for many years, a crime to produce a gun that does not have that serial number, and it is a crime to erase it. It is a crime to sell a gun that doesn't have a serial number on it or has a number that has been erased. When I was a Federal prosecutor, I prosecuted many cases--30, 40, or 50 cases--in which criminals, thinking they could somehow avoid detection, would file off the serial number or somebody filed it off for somebody and delivered it to them, and both of them have committed a crime at that point. That is because we want to be able to identify that weapon and not have it subject to moving around without being able to be identified.

I would just say, there are a lot of laws that we pass in our legal system to clamp down on the sale of guns because they are, indeed, a dangerous instrumentality. But our Constitution provides the right of citizens to keep and bear arms. Our State and local laws provide that protection to our citizens, and we set many restrictions on it. The problem we are dealing with is the possibility that courts will create legal liability on a manufacturer of a lawful product, a lawful product that has been sold according to the strict requirements of Federal and State law, and that they somehow become an insurer of everything wrong that occurs as a result of the utilization of that lawful product.

All we are trying to do is bring some balance. I think the statute has been gone over for many years now. People on both sides of the aisle understand; there are probably 60-plus votes of people who are prepared to vote for this legislation. One reason it has that kind of broad support is that the bugs have been worked out of it. Things that would have gone too far have been eliminated. People have had many months to review it. I think we have a good piece of legislation.

I respect my colleagues who differ, but I strongly think it would be in the interest of good public policy to pass this legislation, and that is why I support it.

I offer the letter from the Beretta Corporation and ask unanimous consent it be printed in the RECORD.

BREAK IN TRANSCRIPT

Mr. SESSIONS. Mr. President, I thank Senator Murkowski for her eloquent remarks and for taking this opportunity to reflect on the contribution of these Boy Scout leaders to the moral and spiritual and emotional and psychological maturation of young boys.

The truth is, young boys today are having a harder time than girls in relation to their graduation rate from college, their crime rate, their imprisonment rate. There are other problems occurring in boys. Boys are struggling in our society today.

I am a strong believer in the Boy Scouts. I thank so much the Senator from Alaska for her kind remarks. I had the honor to be an Eagle Scout. Every Thursday night, a group of us from Hybart, AL, met in Camden, AL, which was 15 miles north of Hybart. Hybart was just a little crossroads community. My father had a country store. There were a couple little stores. People were farmers and carpenters and worked at the railroad or whatever.

There were nine boys there. Of those nine boys, eight became Eagle Scouts. I don't think a single one had a parent who graduated completely from college. One became a Life Scout, he almost became an Eagle Scout. And as I think of those kids with whom I grew up, they did well. One is a Ph.D. now, teaching at the University of South Carolina. One is a dentist in Charleston. One is a medical doctor, Johnny Hybart from Hybart. He is in Pensacola now, working at the hospital there. Bob Vick is a CPA. Pete Miles is an engineering graduate and a former plant manager at a major corporation. And Andy and Greg Johnson both graduated from college, one in engineering and one in business, and are very successful. Mike Hybart graduated with a horticulture degree from Auburn and is in the real estate business now.

It was a great pleasure for me to participate as a member of Troop 94 in Camden. As the Senator from Alaska read the names of Michael Shibe and Michael LaCroix and Ronald Bitzer and Scott Edward Powell, who were killed serving their boys, I thought of people who meant so much to me: John Gates and Peyton Burford and Billy Malone and Dean Tait, and quite a number of others, and Rev. Frank Scott, my Methodist preacher who traveled with us on trips, and how much that meant to me and us as a community and how it shaped our lives in ways that are really unknowable.

I also remember the most exciting trip I ever took; it was with Troop 94 and we stayed at Fort A.P. Hill, Camp A.P. Hill, I believe it was called at the time. As our troop came to Washington, I do not think a single member of the troop had ever been to Washington. We were from rural Alabama. Our leaders decided it would be a big trip, and everybody planned it for a year or more, and we came up.

Our Scoutmaster, Mr. John Gates, was quite a leader, and Peyton Burford and the team of adults made it a highly successful trip. It was in the springtime, as I recall, and I do not think they had hot water at A.P. Hill. It was cold water, but they made you take a shower. We stayed in the old barracks that were vacant at the time. The Army was very helpful to us in making that facility available. We were able to use it as a base to come in to Washington and to tour the area during a trip that was very, very, very meaningful to me and to others.

I have on my mantlepiece in my office here in Washington, on this very day, a picture of that troop with all those kids--60 or more, I guess it was. A big chunk--maybe 12 or 14--at that time were Eagle Scouts, and more than that became Eagle Scouts.

It was a very, very important part of our lives. The key to it was good leadership. Our leaders, as those leaders in Alaska, gave untold hours to make those events meaningful. If you were not a good leader, you would not be able to maintain a troop, and you would not be able to bring them from Alaska all the way down to A.P. Hill in Virginia as part of a Jamboree.

There are 32,000 Scouts at that Jamboree, I understand, with over 3,000 leaders present. It is a very important and good thing that at this very moment we think about the thousands and thousands of leaders in the Scouting program all over America who have meant so much to young people and have shaped their lives in so many positive ways that would not have happened otherwise.

When you go to your Scout meeting--every Thursday night, as we did--you say that oath: On my honor, I will do my best to do my duty to God and my country, to obey the Scout laws, to help other people at all times, to keep myself physically strong, mentally awake, and morally straight.

Some find that offensive. I can't imagine why. What kind of objection could somebody have to ideals such as that. Every week you also recite the Scout laws. A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty--you don't hear that word much anymore--brave, clean and reverent. Those are good qualities. I don't see anything in those qualities that violates the Constitution or should in any way cause them to not be able to be supported by the military on their bases.

I am thankful that the majority leader, BILL FRIST, offered legislation to make crystal clear that Scouts will be able to participate actively on our military facilities as they have for so many years. Along with Senator Reed--a graduate of West Point he is--I serve on the board of West Point with him. Senator Reed chairs that board. I remember one of the briefings we had about the young people who graduate from West Point and go on to a military career. They said the two groups of graduates that had the highest reenlistment rate, the two groups that made the Army a career in the highest percentage, were children of former military parents and Eagle Scouts.

There is some connection there, a connection in terms of duty and honor and commitment to country and to our creator in a way that is special. The Scouts and our military do share some ideals.

I thank the Chair for allowing me to share these remarks. I appreciate the Senator from Alaska so much for her tribute to these fine leaders who gave their lives in service to the young men under their supervision.

I yield the floor.

BREAK IN TRANSCRIPT

Mr. SESSIONS. Mr. President, I join with Senator Alexander in complimenting you and Senator Kyl for the legislation that you have just described for us. The Senator from Texas, as I know, has taken the lead on this very important and complex subject. I salute you for it.

Some would say it is a thankless task, it can't be done, and will make nobody happy. But I believe you have the right principles. If the right principles are applied with the right prescriptive language, we can make great progress in this area, and I salute you for it.

Frequently have I quoted Senator Alexander in the phrase he has used: No child should grow up in America who doesn't know what it means to be an American.

I think that is good for immigrants, too, as the Senator just said so eloquently. I salute him.

I also thank the Senator from Texas for considering a critical component of this legislation he has proposed, and that is the part that deals with State and local law enforcement. I have just written a Law Review article for Stanford University to deal with that area of the law. Suffice it to say, local law enforcement does have complete authority to detain people who are violating the criminal laws of the United States. But that has been confused. Clearing this up more, setting up a mechanism so that they can participate if they choose, would be helpful to enforcing the law. That is so because we have 700,000 State and local law enforcement officers at every street corner and town in America. We have only 2,000 INS immigration officers inside the border--not those on the Border Patrol and on the border, but those inside the border. So obviously we are not very serious about ultimately reaching a lawful system if we exclude them.

I thank the Senator from Texas.

Mr. President, I suggest the absence of a quorum.

BREAK IN TRANSCRIPT

http://thomas.loc.gov/